LAST WEDNESDAY EVENING, I went about the usual domestic chores of an Irish twenty-something (making dinner, tackling the ironing, filling out job applications…). Just after 9 o’clock, the TV background noise grabbed my attention with Stephen Fry’s BBC documentary Out There. This two-part programme followed the eloquent broadcaster as he examined what it means to be gay in Uganda, the USA, Russia, Brazil and India.
On his travels Fry met with members of India’s hijra community – a varied societal group that do not identify themselves as male or female. The term ‘hijra‘ can refer to India’s intersex community, sections of the transgender community or other groups. Estimated to number 6 million, and once revered, now hijra are outcasts living on the margins of Indian society. Stephen Fry’s conversations throughout the programme revealed the powerful sense of community that hijra have developed together.
Most chillingly, however, was the acute vulnerability of the hijra and how their social exclusion can leave them open to discrimination and abuse.
Usually, we can console ourselves that nothing quite so depressing could happen in Ireland. Documentaries like Out There shine a light on human rights abuses and oppression happening in distant places, right? Such practices would be alien in our modern Western society. Wouldn’t they?
Yet Ireland’s transgender community remains on the fringes, despite frequent attempts at home and abroad to change the status quo. Dr Lydia Foy applied for a birth certificate in her female gender in March 1993 and in doing so, began a legal journey that would last over two decades. Represented by FLAC (Free Legal Advice Centres), Lydia fought tirelessly and selflessly for transgender recognition legislation in the Irish courts.
On 19 October 2007, the High Court held that Ireland had breached Lydia Foy’s Article 8 rights to respect for private and family life. In doing so, the Court handed down the first ever declaration of incompatibility under the European Convention on Human Rights Act 2003. The State did appeal this to the Supreme Court but withdrew the appeal in 2010 and the decision became final and binding. Hope that Ireland would move quickly to rectify this situation proved sadly misplaced.
As of October 2013, six years after Lydia’s High Court victory, Ireland still has not introduced transgender recognition legislation, despite political promises and statements from both FF and FG-led governments.
In making outcasts of the transgender community, Ireland has also made itself an outcast in Europe. Ireland is the only EU member state that does not provide a legal mechanism for recognition of transgender persons.
This uncomfortable fact has been highlighted by many international human rights advocates, such as the former Council of Europe Human Rights Commissioner Thomas Hammarberg as well as the incumbent Commissioner, Nils Muiznieks. In fact, Mr Muiznieks wrote to several Irish Government ministers in November 2012 urging them to implement transgender recognition legislation without delay.
This unjustifiable failure to legislate calls into question how much we value our transgender citizens – and indeed how much we value the European Convention on Human Rights, a key treaty to which Ireland willingly signed up.
This week, the Joint Oireachtas Committee on Education and Social Protection meets to discuss the General Scheme of the Gender Recognition Bill 2013.
This is a draft document, not a definite bill. FLAC made a detailed submission on the general scheme to the Joint Oireachtas Committee in September and the independent legal rights body will speak at a Committee hearing today (Thursday), along with other NGOs, civil society groups, healthcare professionals and academics.
FLAC welcomes any progress in this area but we harbour several concerns with the proposed legislation. Chief among these is the government’s proposal to force married transgender people to divorce their partners before they can apply for gender recognition. For the tiny number of married transgender persons who wish to remain married, this means a cruel Sophie’s Choice-style scenario : to choose between their marriage and true gender recognition.
European countries such as Germany and Austria have already struck down equivalent laws, stating that forced divorce was unconstitutional. A case before the European Court of Human Rights is putting Finland on trial for the same issue.
Already behind its peers, Ireland is now proposing to introduce law that has already become outmoded elsewhere and that is in breach of our human rights commitments. This is starkly highlighted by the almost unanimous accord on this and indeed other issues in the bill among groups appearing before the committee this week.
Twenty years into her painful and all-consuming legal battle, Lydia Foy was forced to issue new legal proceedings in February due to government inaction. Having met Lydia on numerous occasions (and witnessed first-hand both her indomitable bravery and the hurt that she has suffered) it pains me that our government still refuses to help her.
Last month, she was recognised as a prominent and courageous human rights campaigner when she was shortlisted for European Diversity Awards ‘Campaigner of the Year 2013’ at a ceremony in London. How much longer will she have to wait to have the simple human right of being recognised at home in her true gender?
Emma Cassidy (@cassidyemma) is a legal intern and communications assistant with FLAC (Free Legal Advice Centres – @flacireland). A briefing note on the Foy case is available to download from FLAC’s website.
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