Gender Recognition Bill 2013


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GENDER RECOGNITION BILL 2013

Meabhrán Minitheach

Explanatory Memorandum

Introduction

This Bill provides for legal recognition to the acquired gender of transgender persons. This formal legal recognition is for all purposes, including dealings with the State, public bodies and civil and commercial society. It includes the right to marry or enter a civil partnership in the acquired gender and the right to a new birth certificate. The effect of the legal recognition is not retrospective but shall be only from the date legal recognition is provided by means of the issue of a gender recognition certificate. Therefore, all rights, responsibilities and consequences of actions by the person in their original gender prior to the date of recognition shall remain unaffected.

Main Provisions

Head 1: Short Title and Commencement

Head 1 establishes the short title of the Act. It further stipulates that the Act may come into force on such day or days as the Minister for Social Protection, by commencement order, may determine.

Head 2: Interpretation

Head 2 provides a definition of terms used in the Act for the sole purpose of statutory interpretation of the Act.

Head 3: Regulations

Head 3 provides that the Minister may make regulations where necessary to give effect to the Act.

Head 4: The Department of Social Protection to be the Issuing Authority for Gender Recognition Certificates

Head 4 provides that the Minister for Social Protection shall be the decision making authority in relation to granting approval for gender recognition certificates. The Minister shall issue the certificate once the application meets all the qualification requirements.

The Head also provides that where the application does not meet the qualification requirements, the Minister shall issue the applicant with the reasons why their application was not approved and advise them of their right to appeal. The Head also authorises the Minister to obtain specialist advice to assist in the consideration of the application where warranted.

Subhead 5 confirms that there will be no application fee but that the applicant will have to bear the cost of preparing and submitting the evidence required. Subhead 6 provides for the Minister producing an annual report on the operation of the gender recognition certificate process.

Head 5: Qualification Requirements for a Gender Recognition Certificate

Head 5 sets out the conditions which a person is required to meet in order to qualify for a gender recognition certificate. The person must meet one of the following three qualifying criteria; their birth is registered in Ireland, they have become an Irish citizen by having their birth registered in the Foreign Births Register maintained by the Department of Foreign Affairs and Trade or they are ordinarily resident in the State.

They must also be at least 18 years of age on the date of application and they must not be in an existing marriage or civil partnership. In addition, they must meet the evidential requirements set out in Head 6.

Head 6: Evidence to be submitted with applications for a Gender Recognition Certificate

Head 6 addresses the evidence which must be supplied by the applicant to prove that he/she meets the qualification requirements. This includes a certificate from the register of births or from the foreign births register, proof of ordinary residence in Ireland and a proof of identity in a form to be prescribed by the Minister.

The evidence must also include a statutory declaration, in a form to be prescribed by the Minister, stating that the person has a settled and solemn intention of living in the acquired gender for the rest of their life and confirming that the person is 18 years of age or older and not in a marriage or in a civil partnership.

This statutory declaration must be accompanied by a statement from his/her primary treating physician, in a form to be prescribed by the Minister, which confirms that the person has transitioned/is transitioning to their acquired gender and that they are satisfied that the person fully understands the consequences of their decision to live permanently in the acquired gender

Head 7: Foreign Recognition Decisions

Head 7 deals with applications from persons who have already had their acquired gender recognised in a different jurisdiction. It is not clear how many such applicants there might be. It would seem likely that any non-Irish person who has had their changed gender recognised abroad would have changed their personal documentation e.g. passport, identity card, birth certificate, before coming to live in Ireland. Such persons would have no need to seek a gender recognition decision in Ireland. However, there may be a group of Irish-born people who went abroad some years ago to make the transition to the acquired gender and have had that change recognised in the jurisdiction where they are resident. Such persons may now wish to have their acquired gender recognised in Ireland and obtain an Irish birth certificate reflecting that acquired gender.

In order for the application to be approved satisfactory evidence will have to be provided that the gender recognition process in the other jurisdiction was valid. A decision made in an EU Member State will be recognised but outside of the EU the process for recognition of the decision will be specified in the Regulations.

Head 8: Gender Recognition Certificate

Head 8 provides for the issuing of a gender recognition certificate by the Minister for Social Protection. The applicant must first have complied with heads 5 and 6 (and 7 as appropriate). The date of the certificate shall be the date that the decision was made.

The Head states that the gender recognition certificate shall contain the person's full name, acquired gender and other such information and statements as may be prescribed by the Minister in Regulations.

The Head provides that the Minister shall notify an tArd Chláraitheoir that the certificate has issued and provide him/her with the required particulars.

The Head also provides that the data may be sent to Client Identity Services function within the Department to facilitate changes to the Public Services Identity (PSI) data set for use by those agencies authorised to use the PSI dataset and also to the Passport Office of the Department of Foreign Affairs for use in approving and issuing passports.

The gender recognition certificate is the key document recognising a person's acquired gender. It is not considered desirable that a practice should develop of public or private organisations requiring presentation of a gender recognition certificate as proof of identity. For a person whose acquired gender has been recognised, the documents normally accepted as proof of identity should suffice e.g. birth certificate (in the acquired gender), passport, driving licence, public service card etc. The Head confirms that the person named on the certificate shall not be required to produce it as proof of gender (unless in specified circumstances) but can do so if they so wish.

Head 9: Effects of Gender Recognition

Head 9 provides for the fundamental principle of the legislation which is that, once a gender recognition certificate is issued to a person, the person's gender becomes the acquired gender. This formal legal recognition is for all purposes, including dealings with the State, public bodies and civil and commercial society. It includes the right to marry or enter a civil partnership in the acquired gender and the right to a new birth certificate or, if applicable, a new entry in the foreign birth register. The effect of the legal recognition is not retrospective but shall be only from the date on the gender recognition certificate. Therefore, all rights, responsibilities and consequences of actions by the person in their original gender prior to the date of recognition shall remain unaffected.

Head 10: An tArd-Chláraitheoir to maintain the Gender Recognition Register

Head 10 provides for the establishment and maintenance by an tArd-Chláraitheoir (Registrar General) of a confidential register to be known as the gender recognition register. The register shall not be open to public inspection or search. Its purpose shall be to record the required particulars of the births of persons who have been issued with a gender recognition certificate and whose births are recorded on the register of births or the adopted children register maintained by an tArd-Chláraitheoir. The particulars to be contained in the gender recognition register are analogous to those in the register of births or the adopted children register, as appropriate. This provision and other related ones will require amendments to the Civil Registration Act 2004.

Head 11: Gender Recognition Register and Existing Birth Register and Adopted Children Register Entries

Head 11 provides that, in cases where the Minister has issued a gender recognition certificate to a person for whom there is an entry in the register of births or adopted children register, a copy of the certificate and the required particulars for the registration shall be sent to an tArd-Chláraitheoir. This shall be for the purposes of Heads 12 and 13.

An tArd-Chláraitheoir shall not authorise the issue of a certified copy, a copy or a certified extract of the birth register or adopted children register entry of a person issued with a gender recognition certificate, (other than to the person themselves) unless he/she is satisfied that there exists a legitimate requirement for the request, for example if required for a criminal investigation or prosecution or for a civil court case in which the person's original gender is pertinent.

Head 12: Entries in the Gender Recognition Register

Head 12 provides for the process whereby entries shall be made by tArd-Chláraitheoir in the gender recognition register and a link made between that entry and the corresponding original entry in the register of births or adopted children register. This link shall be maintained in a confidential manner. The provisions of sub-Head 1(a) will involve contact, under the provisions of Subhead (2) of Head 11, between an tArd-Chláraitheoir and the person who has been issued with the gender recognition certificate, in order to confirm the exact details of the entry in the register and the arrangements for the issue of the new birth certificate. Sub-Head (3) reflects the provisions of Head 11 in relation to the need for a legitimate requirement before a request (other than from the person themselves) for the issue of a certified copy, a copy or a certified extract of the birth register or adopted children register entry of a person issued with a gender recognition certificate, can be approved by an tArd-Chláraitheoir.

Head 13: Copies of entries in the Gender Recognition Register

Head 13 provides for the arrangements for fees in respect of certified copies, copies or certified extracts from the gender recognition register. It also provides, for reasons of confidentiality, that certified copies, copies or certified extracts of entries in the gender recognition register shall not be identifiable as being from that register, as opposed to being from the register of births or adopted children register.

Head 14: Re-registration of entries in the Gender Recognition Register

Head 14 provides for changes (re-registrations) to be made to entries in the gender recognition register for similar reasons such re-registrations can be made in respect of entries in the register of births. These are (a) where the parents of a child who are not married to each other wish to have the father's details included where these details were not registered initially or (b) where the parents of a child marry each other after the birth of their child.

Head 15: Correction of errors in the Gender Recognition Register

Head 15 provides for the situation where an error is made in respect of the content of a gender recognition certificate. Once the Minister is satisfied that the error needs to be corrected it will be done, in accordance with Head 18. The Minister will subsequently notify an tArd-Chláraitheoir to make the necessary correction in the entry in the gender recognition register. The Head also provides for corrections in the gender recognition register entry if an error is corrected in the linked entry in the register of births or adopted children register.

Head 16: Cancellation of entries in the Gender Recognition Register

Head 16 provides for the cancellation of an entry in the gender recognition register arising from the revocation of a gender recognition certificate by the Minister, in accordance with Head 19. In such circumstances the Minister shall notify an tArd Chláraitheoir of the decision to revoke the gender recognition certificate and, subject to any appeal, an tArd Chláraitheoir shall cancel the entry in the gender recognition register. As a result, the person's original entry in the register of births or adopted children register shall again become the appropriate birth registration for the person.

Head 17: Appeal Process

Head 17 provides for the right of appeal by a person whose application for a gender recognition certificate has been refused by the Minister. The appeal, for reasons of confidentiality, shall be to the Circuit Family Court. It must be made within 3 months of the refusal decision. If the appeal is successful the Minister shall issue the person with a gender recognition certificate with an applicable date of the original decision. It shall be possible for a person who unsuccessfully appeals a decision to make another application to the Minister for a gender recognition certificate but, in order for it to be considered, new or additional material supporting the application shall be required.

Head 18: Correction Process for Gender Recognition Certificates

Head 18 provides for the correction of the content of a gender recognition certificate. An application for the correction of an error can be made by the person to whom the certificate was issued or by the Minister. If the Minister is satisfied that the error needs to be corrected the correction will be made. In accordance with Head 15 the Minister will subsequently notify an tArd Chláraitheoir to make the necessary correction in the entry in the gender recognition register.

Head 19: Revocation of Gender Recognition Certificate

Head 19 provides for the revocation by the Minister of a gender recognition certificate issued to a person if it is established that, at the time of application, the person did not meet the qualification criteria, evidential requirements and, if appropriate, the foreign recognition requirement. A person whose gender recognition certificate has been revoked has the right to appeal that decision in line with the appeal provisions set out in Head 17. The revocation of a gender recognition certificate shall mean that the effects of gender recognition set out in Head 9 shall cease to apply. It will result in the cancellation of the relevant entry in the gender recognition register, in accordance with Head 16.

Head 20: Offence/Penalty

Head 20 makes it an offence under the Act to knowingly provide false particulars or information in the application for a gender recognition certificate and states that a person who is found guilty of this offence shall be liable on summary conviction to a fine or imprisonment.

Head 21: Parenthood

Head 21 is an avoidance of doubt provision. A change in a person's recognised gender under the Act should not change the responsibilities of that person as a parent or require any change to be made to a child's birth certificate. This may also have prospective effect in circumstances where parenthood arises after the gender is acquired, whether by assisted human reproduction using frozen gametes / embryos or otherwise.

Head 22: Succession

Head 22 provides that where a person has had their "acquired gender" recognised it does not affect the distribution of property under a will or other instrument made before the day on which the Act comes into force. For wills or other instruments made after that day the general principle stated in Head 9 (1) will apply e.g. if a will refers to the 'eldest daughter', and a person who was previously a son becomes the 'eldest daughter' following recognition in the acquired gender, that person (subject to Head 24) will inherit as the 'eldest daughter'.

Head 23: Trustees and personal representatives

A trustee or personal representative is responsible for conveying and distributing property from a trust or estate. Head 23 relieves a trustee or personal representative from any fiduciary duty to inquire whether a gender recognition certificate has been issued to any person or revoked, even if that fact could affect entitlement to property which he or she is responsible for distributing. The beneficiary will nevertheless retain his or her claim to the property and may enforce this claim, e.g. by following the property into the hands of another person who has received it instead.

Head 24: Orders where expectations defeated

Head 24 makes provision for any situation where the disposition or devolution of property under a will or other instrument is different from what it would be but for the fact that a person is regarded as being of the acquired gender. If, for example, an instrument governs succession by reference to the 'eldest daughter' of the settlor, and there is an older brother whose gender becomes female under the Act, then the person who was previously the 'eldest daughter' may cease to enjoy that position. Subhead 2 allows a person who is adversely affected by the different disposition or devolution of the property to make an application to the High Court. The court, if it is satisfied that it is just to do so, may make such order as it considers appropriate in relation to the person benefiting from the different disposition of the property.

Head 25: Gender-specific offences

A number of criminal enactments include offences and penalty provisions which are gender specific. Head 25 provides that all rights, responsibilities and consequences of actions by the person in their original gender prior to the date of recognition of their acquired gender remain unaffected as otherwise the ability to prosecute for offences committed prior to recognition may be undermined. The head also provides that a person whose acquired gender has been recognised under this Act can be prosecuted for sexual offences specific to their original gender committed post recognition

Head 26: Sport

Head 26 enables a body responsible for regulating participation in competitive gender-effected sporting events to prohibit or restrict the participation in such events of a person whose acquired gender has been recognised under the Act and who is seeking to compete in the acquired gender. The prohibition or restriction can be effected if it is deemed necessary to secure fair competition or the safety of other competitors.

Financial Implications

Additional costs to the Exchequer will be for administration in relation to the processing of applications. It is not expected that a high volume of applications will be made and any costs that arise will not be significant.

Last modified:17/07/2013