Letter to the Government of Ireland on the Rights of Transgender Children

Ms. Joan Burton
Minister for Social Protection
Leinster House
Dublin 2
Ireland

Dear Minister Burton,

As you know, the Gender Recognition Bill is Ireland’s first effort to provide access to legal gender recognition for transgender people. As such, this is a momentous occasion, of which the authors and supporters of this bill should be proud. However, as the bill enters report stage, a significant flaw remains – and your leadership can ensure that the draft is amended now. In doing so, you can enshrine basic human dignity for transgender children in Ireland in the law.

In the current draft, children under the age of 16 are completely barred from accessing legal gender change, while those 16 and 17 years old are obligated to undergo an arduous and complicated process to change their legal gender. Senator Jillian van Turnhout has argued: “As a children’s rights activist I am profoundly disappointed that children under the age of 16, and given the onerousness of the process for 16-18 year olds we can say in effect all children, have been excluded from the provisions of the Gender Recognition Bill 2014.”[1] Minister for Children James Reilly is reported to have also expressed concerns about the current draft’s treatment of transgender children.[2] You may know that I have previously raised our concerns in writing with Minister Humphreys, and in person during a meeting with him in May this year.

I am also aware that the Joint Oireachtas Committee considered this issue and that it heard opposing views on what should be the appropriate policy in the best interest of the child.  However, we are revisiting this issue with you because we strongly believe that the current provisions do not serve children’s best interests or best protect their rights; rather such burdensome restrictions on transgender children interferes with their personal and private lives, and unnecessarily impedes their right to recognition before the law and to access services, including education in a safe environment, according to their preferred legal gender.

The rights of transgender children

The right to preserve one’s identity is guaranteed by Article 8 of the Convention on the Rights of the Child. Article 8 specifies three aspects of identity—nationality, name, and family relations—but that list is not exclusive, and reasonably extends to the way one’s identity is reflected on state-issued documents. UNICEF’s 2014 position paper on ending discrimination on the basis of sexual orientation and gender identity notes that, “The discrimination and harm that lesbian, gay, bisexual, and transgender children and parents face stems from attitudes that do not accept all individuals as equal…” and specifically notes that such discrimination can manifest as “marginalization and exclusion from such essential services as education and health care.”[3]

As the gender recognition bill was debated in the Oireachtas, some legislators suggested that a school system in Ireland in which many schools have historically provided single-sex education poses an obstacle for children to exercise their rights to gender identity. But rather than serve as an argument against legal gender recognition for children, such a system in fact highlights the acute need to allow transgender children to access documents in their preferred gender, and services – including education – in a setting that matches their gender identity.

The bill as it stands denies on its face access to gender recognition to children under 16, and imposes an arduous process for 16 and 17 year olds that requires the child’s parents, primary treating physician, and a second physician to submit documentary evidence supporting legal gender recognition to a Circuit Family Court, where a judge must decide whether the child is eligible. However, the best interests of the child – a central tenet of all children’s rights’ analysis and part of the Convention on the Rights of the Child, to which Ireland is a party – are not well served by setting up such impediments against anyone under 18 from changing their legal gender. Rather, denying children that possibility risks condemning them to feelings of stigmatization, exclusion, and discrimination during some of their most important formative years, including during their education.

Human Rights Watch believes that it is better not to introduce a minimum age, but instead to allow the Minister or the court to consider cases on an individual basis and according to the best interests of the child in question.

Malta’s model

On April 1, 2015, Malta passed the Gender Identity, Gender Expression and Sex Characteristics Act, which contained specific provisions to allow children to access legal gender recognition.[4] Specifically, the parent or guardian of a transgender child wishing to change the child’s legal gender can file an application for legal gender recognition at a civil court. Maltese law mandates that “the best interests of the child as expressed in the Convention on the Rights of the Child be the paramount consideration” and “give due weight to the views of the minor having regard to the minor’s age and maturity.”

Malta then took an additional important step in its June 2015 policy on transgender, intersex, and gender variant students in schools, which mandates implementation of human rights protections for transgender youth in schools, specifying that: “Being able to be one’s self at school is an essential factor in every student’s success and well-being. Schools are therefore obliged to ensure safe and inclusive environments for all students.” [5] The procedures that accompany the school policy enumerate that transgender children have the right to: access to changing the gender marker on their school documents; be called by their preferred name and pronoun; wear garments congruent with their gender identity within the school dress code policy; access to gender-specific facilities according to their gender identity; protection of their privacy with regard to information about their identity; and a safe school environment free from discrimination, harassment, and bullying. [6]

Ireland has an opportunity to bring its laws in line with best practices for protecting transgender children and fully respecting their rights by amending the Gender Recognition Bill to eliminate the age barriers, and removing requirement of two independent doctor’s notes.

The urgency of this inclusion

The debates about this bill have enriched its content and revealed support across party lines and sophisticated engagement with important issues related to the fundamental rights of transgender people. However, without protections for children, it still falls short of what it should and could be. I urge you to take this opportunity to listen to the advocates arguing for the rights of children and make the necessary amendments to the bill while there is still an opening. Ireland has an opportunity to be a leader in Europe and the world that it should not waste.

Sincerely,

Boris Dittrich
Advocacy Director
Lesbian, Gay, Bisexual, and Transgender Rights Program
Human Rights Watch

CC:
Jan O'Sullivan, Minister of Education
James Reilly, Minister for Children
Kevin Humphreys, Minister of State at Department of Social Protection