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Minister for Social Protection publishes General Scheme of the Gender Recognition Bill 2013

Bill will provide for State recognition of the acquired gender of transgender people

The Minister for Social Protection, Joan Burton T.D., has today (17th July 2013) published the General Scheme of the Gender Recognition Bill 2013, following Cabinet approval. It provides for the recognition of the acquired gender of transgender people aged 18 and over and who are not married or in a civil partnership.

Once enacted, it will mean that a person who transitions gender will have their acquired gender fully recognised by the State for all purposes – including the right to marry or enter a civil partnership in the acquired gender and the right to a new birth certificate.

Minister Burton said: “I am delighted to publish this General Scheme of the Bill and I welcome the agreement of my Cabinet colleagues on these hugely important proposals. Since becoming Minister, I have engaged with the groups representing transgender people and I am very aware that the longstanding lack of legal recognition has caused on-going hurt as well as real practical difficulties. I believe that this Bill will go a long way towards addressing those concerns. It again shows that this Government is prepared to resolve issues left unaddressed for far too long.”

Publication of the General Scheme of the Bill follows on the Government decision to draft legislation in line with the recommendations of the Report of the Gender Recognition Advisory Group [GRAG]. However, while the Bill is in keeping with the general structure of those recommendations, it differs in a number of key aspects. The GRAG Report proposed that the person seeking recognition of their changed gender would have to make an application to a specially-established expert panel, or “Gender Recognition Panel”, which would examine the evidence and make a decision on each application. With the agreement of her Cabinet colleagues, the Minister has instead opted for what she believes is a more progressive and less cumbersome approach. Under the Bill, the application process for gender recognition will be administrative via the Department of Social Protection instead of through an expert panel.

The administrative approach will consist of:

• A statutory self-declaration by the applicant that they intend to live permanently in the new gender; and

• Validation by the primary treating physician that the person has transitioned or is transitioning to the acquired gender.

The applicant will not have to specify that they have been living in their acquired gender for a specific period of time prior to their application.

Minister Burton said: “I am grateful for the work of the Gender Recognition Advisory Group and the Bill seeks to build progressively on the GRAG Report’s recommendations. Even in the few short years since the report was published, thinking and attitudes have moved on, as have health care and related supports. I know that there were real concerns about the role of an expert panel in validating applications and, as a result, I have removed the requirement for the expert panel. The application process will now be administrative, which I believe will be a more streamlined and dignified process which protects all concerned and ensures that the registration process will be robust.

“It will be based on a statutory declaration to my Department by the person concerned along with a letter from their primary treating physician confirming the person’s transition to the acquired gender. The process will not require details of care including medical history or confirmation of a diagnosis. Nor will it require that the person has lived in the acquired gender for a specific period of time after their transition. I believe this is a more compassionate and understanding approach and central to the spirit of the Bill.”

The Minister also pointed out that the new approach would facilitate applications from people with intersex conditions should they wish to apply. Intersex is a general term used for a variety of conditions in which a person is born with a reproductive or sexual anatomy that does not fit the typical definitions of female or male. As a result, intersex persons may find themselves living in a gender at variance to the gender assigned at birth.

The Bill will provide for people who are single and over 18 years of age. The position of a transgender person who is already married, or in a civil partnership, and who wishes for their acquired gender to be recognised will be looked at again once the Government has decided its response to the Constitutional Convention recommendations on same-sex marriage.

Minister Burton said: “I understand that this will be disappointing for the small number of transgender persons concerned who are already married and wish to remain married while having their changed gender recognised. The Constitutional prohibition on same-sex marriage represents a significant difficulty in this regard, however. I believe it is more sensible at this point to await the Government response on the Constitutional Convention recommendations, as a referendum on same-sex marriage, if approved by the public, would remove this obstacle and the legislation could be widened to include married people. Prior to such a referendum, there is no simple legislative solution to this issue that can be guaranteed to be constitutionally robust, and I want to legislate now for the majority of the people affected, who are single.”

The General Scheme of the Bill will now be referred to the Joint Oireachtas Committee on Education and Social Protection for consideration in the autumn.