The Irish GRA - Breaking International Human Rights Law?

[Mermoose]

Section 18 of the Irish Gender Recognition Act (2015) explains the effect of a gender recognition certificate:

"Where a gender recognition certificate is issued to a person the person’s gender shall from the date of that issue become for all purposes the preferred gender so that if the preferred gender is the male gender the person’s sex becomes that of a man, and if it is the female gender the person’s sex becomes that of a woman."

I've asked politicians, TRAs and civil liberties groups what 'gender' means and they have never given me a definition that is not circular. But in Irish law, it is equated with sex.

Rosa Freedman in her talk to A Woman's Place said that at a human rights level, gender has never been defined. The Yogyakarta Principles doument does not define gender. Prof Freedman said this lack of a definition is one of the obstacles preventing gender identity's being recognised in Human Rights law. (The other obstacle being 70+ countries opposition to laws protecting LGBT groups in general).
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Women (female people) are recognised as a defined group and have sex-based rights under international human rights law. Gender identity is neither recognised nor protected. The Yogyakarta Principles is not law, it is simply a document that a group drew up and has no legal power.

The 2015 Irish GRA supplanted a protected characteristic - sex - with one which has not even been defined.

It also infringes on our right to freedom of thought, as it mandates that we accept something which is not true (that is, that a certificate can change someone's sex).

Surely this breaks human rights law?

If it does, how do citizens usually go about challenging their government for breaking human rights law?

*Disclaimer: I studied law as part of my degree many moons ago but I'm not a solicitor

Basically for someone to take a case they need standing (locus standi) so you would have to be able to prove that you are personally affected by the GRA (I know we all feel personally affected but it would have to be stronger than that) say for example the barber in the transman haircut case (www.irishtimes.com/news/ireland/irish-news/dublin-barber-fined-5-000-in-transgender-discrimination-case-1.3577517) would have standing to say this law is nonsense, gender doesn't mean anything etc.

FLAC have a good PDF that summarises the topic
www.flac.ie/download/pdf/pila_seminar_291010_pdm_standing_handout.pdf

If you look at the Lydia Foy case which started this, the ECHR said that Foy should be granted a new birth cert for privacy reasons because they had fully transitioned (if I remember correctly) so the Irish GRA's self ID was not required by the ECHR, they only required that people who had gone through surgery etc. should have access to a new birth cert

OP I was in a school recently-and saw this statement-'Article 17, government must help protect children from material that could harm them'

How does that square with Stonewall & Mermaids going into schools telling kids they can be born in the wrong body? etc etc

Would love it if someone who really understands the law could challenge government on this.

All really good points.
What’s even worse is that the 9 goroinfs of anti discrimination cover gender and not sex. Again conflating the two.
We’re fucked.

9 grounds. Don’t know what that autocorrect means!

Thanks miri1985

So maybe we have to wait for our own Yaniv.

There's more of a case to be made for GRCs when someone has actually medically transitioned, but they still haven't changed sex and I think even then it causes more problems than it solves. It doesn't seem to me that the EHRC was right. A birth cert is a historical document. Either it matters what's on them or it doesn't. If you can just change them, what are they for?

Surely the right thing to do was look at times when birth certs are required and ask if it's really necessary to produce them. I think in Australia there was a campaign to just get sex taken off driving licences altogether. Or maybe introduce four types of ID on driver's licences etc: male, female, trans man, trans woman. And then the trans movement could have been about getting society to accept trans men and trans women as they are, not as the opposite sex.

I don't think it's the government's job to wave a magic wand and pretend reality has changed because someone wanted it to. We all have to deal with stuff. Facilities, healthcare, protection against discrimination - these are all things governments can and should do for trans people. But they shouldn't be forcing everyone to believe something that's not true.

happydappy2 is that in the UK? Yeah, there's no joined-up thinking in all this.

What’s even worse is that the 9 grounds of anti discrimination cover gender and not sex. Again conflating the two.

But have you seen the different types of gender within the Equal Status Act? It's man, woman, and transgender person.

By definition of equality legislation in Ireland, TWANW, TMANM.

It's a tricky distinction that has not been properly explored in case law, but it does mean that (for instance) Irish newspapers and media can freely report on trans status. When the Lauren Jeska case was covered by Irish media, for instance, there were none of the "woman stabs man" type articles (not mentioning trans status) that were run in British newspapers, but rather the articles clearly said LJ was transgender. I see less gaslighting about crime reporting, at least.

That's really interesting MarDhea. But the Act itself says that a male with a GRC is legally a woman and female?

"if the preferred gender is the male gender the person’s sex becomes that of a man, and if it is the female gender the person’s sex becomes that of a woman."

That's just made my head spin. So gender (not defined in law, roughly equates to an unverifiable and unquantifiable feeling located in an individual and asserted by them) trumps sex. Is that right?

Is that how the law in Canada works, and is it what's proposed here in the UK? I don't remember seeing that phrase in print before, but that might be me not having noticed.

morningtoncrescent62 I don't know about the UK or Canada.

Yeah, it's weird seeing it in plain English.

It's interesting that it's not even consistent with TRA faff about 'woman' being gender and 'female' being sex. (I know they've now moved to claim 'female' too).

There are massively funded legal organisations putting forward the arguments that not awarding a GRC is against human rights.

Funnily enough there are not massively funded orgs arguing the other side of the case for women’s rights.

transgenderlawcenter.org

It's very similar to the wording in the UK GRA 2004:

(1)Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

The difference between the UK and the Ireland GRA is that in the UK you need to provide medical evidence and evidence of 2 years spent 'living as' the acquired gender (official letters and documents in the new name). In Ireland you just sign the declaration and don't need to provide any evidence. The proposal in the UK is to have a similar system to Ireland and not require evidence.

I thought there were more exceptions built into the Ireland GRA but I'm not sure now, since they put that male sex offender in a women's prison. I should probably read it

Scotland are now considering dropping the need for medical evidence and cutting the necessary time 'living as' a gender to 6 months (3 months before applying + 3 months reflection period).

I thought there were more exceptions built into the Ireland GRA but I'm not sure now, since they put that male sex offender in a women's prison. I should probably read it

The initially proposed GRA had loads of exemptions, required 2 years "living as a woman". doctors to sign off, etc and was very similar to the 2004 UK act but that was all demolished and self ID was brought in without much if any discussion.

If I may quote myself from previous discussions on the topic as regards prisons

"Under current Irish law you can't move prisons if you are in the prison of one sex you cannot be transferred to the prison of the other sex as its down to warrant issued by the court (although thats probably ripe for an ECHR case)

The court could decide to issue a warrant for a transwoman to a womens prison, theres nothing stopping it and if you read pg 18 and 19 of this pdf (from a few months after self ID) its said that they go on whats on a persons birth cert which with self ID is changeable

www.iprt.ie/files/IPRT_Out_on_the_Inside_2016_EMBARGO_TO_1030_Feb_02_2016.pdf

Francis Fitzgerald (when she was minister for justice) confirmed here its based on "legal identity" www.inis.gov.ie/en/JELR/Pages/PQ-24-01-2017-106"

But from what was reported in the Sunday World, the prisoner in question doesn't even appear to have gone through the GRA process so I don't know what on earth they're thinking if this person doesn't even have the bare minimum

But the Act itself says that a male with a GRC is legally a woman and female

Sort of, but it doesn't exactly match up with equality law - that's the thing.

The GRA says that a GRC effectively means TWAW. But then the ESA effectively says that TWANW, so it cannot count as grounds for discrimination to separate women and transgender persons into different classes. And it might actually be grounds for discrimination to fail to make the distinction when appropriate. For instance, several Irish universities have created third space "gender neutral" toilets in addition to existing male and female toilets, rather than making all toilets unisex, because it makes provision for all three classes of gender under the ESA. It would be potentially discriminatory not to provide toilets for women, as distinct from transgender persons, so an organisation paranoid about litigation / equality PR would provide a third space to be on the safe side. Having three classes of gender in Irish equality legislation motivates a third-space solution. (Or so a GC lawyer friend explained it to me as she understood it, though I believe it's mostly theoretical so far as there have been very few cases to provide precedent.)

In the UK, a lot of the current mess hangs from downright incorrect overly liberal interpretation of the Equality Act by organisations and institutions, where "TWAW" in all possible ways, from toilets to changing rooms to women's refuges to prisons, and no exemptions are ever mentioned (let alone invoked). Separating women from transgender persons can only be done via these exemptions, but they depend on justifying proportionate aims and most organisations just don't do it. For instance, take the number of places who have converted their male and female toilets to unisex "cubicles" and "urinals + cubicles". Making all toilets unisex is not grounds for discrimination in the UK (though I understand it does violate some specific toilet-related legislation) so an organisation paranoid about litigation / equality PR sees it as a magic solution. There is no legal motivation in British equality legislation to pursue a third-space solution, so nobody bothers.

Ugh. That was long. Hope I made sense!

Thanks miri, that's interesting. I've just been having a look through the Irish Act -

www.irishstatutebook.ie/eli/2015/act/25/enacted/en/print

• and I can't work out if there are exceptions in there.

In the UK there's an exception for C of E clergy so they don't have to marry people in church if they reasonably believe they have changed gender through a GRC, and similar provision for Church of Wales.

www.legislation.gov.uk/ukpga/2004/7/schedule/4/part/1/crossheading/marriage-act-1949-c-76

Also if you marry someone and it turns out they have changed gender with a GRC and you didn't know at the time, you can annul the marriage.

www.legislation.gov.uk/ukpga/2004/7/schedule/4/part/1/crossheading/matrimonial-causes-act-1973-c-18

I suppose there is a very different relationship between church and state in Ireland because you're dealing with the Catholic church and they won't be told what to do by the Irish government in the first place!

There's an exception for sport -

www.legislation.gov.uk/ukpga/2004/7/section/19

And of course the famous primogeniture exceptions for succession, peerages, inheritance etc. -

www.legislation.gov.uk/ukpga/2004/7/section/15

www.legislation.gov.uk/ukpga/2004/7/section/16

These are in addition to all the equality act exceptions.

Another thing in the UK GRA is the prohibition of disclosure which makes it a specific criminal offence to out someone with a GRC except in very limited circumstances (if that info has been acquired in a professional capacity). Does the Irish GRA have something similar?

That makes lots of sense MarDhea although that is a glaring contradiction between the GRA and the ESA!

I think in the UK we should be making more use of the EA prohibition of harassment on the grounds of sex (this is different from sexual harassment although both can happen in the same circumstances). Mixed sex toilets, and even moreso changing rooms, hospital wards etc. can easily amount to:

an intimidating, hostile, degrading, humiliating or offensive environment - for women.

www.legislation.gov.uk/ukpga/2010/15/section/26

There's no obligation to use a single sex exception but there is an obligation to prevent harassment.

I can't work out if there are exceptions in there

Yes there are exceptions - the ESA is actually several acts so it's scattered on the original statute books, but it's summarised in one place by the Irish Human Rights and Equality Commission.

Many of the exceptions of the original ESA are here: http://www.irishstatutebook.ie/eli/2000/act/8/section/5/enacted/en/html

Relevant ones for gender are as follows:

(c) differences in the treatment of persons on the gender ground in relation to services of an aesthetic, cosmetic or similar nature, where the services require physical contact between the service provider and the recipient
... so no requirement to wax lady balls in Ireland.

(g) differences in the treatment of persons on the gender ground where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender
... privacy and dignity are protected, but it remains to be tested in terms of, say, women as a gender wanting privacy from transgender persons as a gender.

There are also exceptions for sport, religious training, dramatic productions, housing, education.

So those exceptions are all in the ESA, not the GRA?

It goes to show that extreme caution is necessary when someone says something like 'they have self ID in Ireland and it's fine'.

1. The UK and Ireland GRA look similar at a glance (aside from self-ID vs. evidence) but there are lots of differences.

2. The two Acts interact with other laws in completely different ways.

Pencils YES!

No law exists in isolation; an Act is written to dovetail with the existing statute book, so checks and balances occur in different places in different countries.

(c) differences in the treatment of persons on the gender ground in relation to services of an aesthetic, cosmetic or similar nature, where the services require physical contact between the service provider and the recipient^
... so no requirement to wax lady balls in Ireland.

I'm not 100% sure on that, in the past that has been used to justify a barber not cutting womens hair (www.thejournal.ie/barber-women-woman-discriminate-hair-equality-2106015-May2015/) but then you see what happened in the transman barber case, the WRC still found against the barber.

That transman barber case wasn't appealed so who knows how this will actually work, according to the GRA a transperson has changed their gender and their sex.

The whole thing is a mess, there are no clear definitions across the legislation, theres not even an attempt to provide such definitions

I know the barber case, where a transman was turned away from a barbers (apparently because the barber didn't know it was a transman and thought it was a woman). The TM then claimed discrimination on the grounds of gender.

In that case, the barbers argued that they don't cut women's hair because they're not trained in such styles (allowed exception on grounds of gender), and that it wasn't discrimination because they hadn't treated the TM worse than any woman. They lost because that was the wrong comparator: the TM had asked for a short back and sides, which they did have the training to perform, so they should have been trying to show that they hadn't treated the TM worse than any man... which they couldn't. (It does beg the question what would happen if a woman turned up and asked for a short back and sides... could she legitimately be turned away now?)

This precedent doesn't easily apply to waxing lady balls though: different skills, plus the waxer could also make use of the privacy/embarrassment exception in their defence.

So, basically - TWAW... except when they're not....

I think we need to do more pushing of the "...except when they are not" excerpts from our legislations, whether it is Ireland or UK legislation. We still have single-sex women's exemptions, and should focus on the breach of women's rights when males try to force themselves in.

Instead of the overwhelming focus on males demanding their rights to female spaces and roles, we should concentrate on reaffirming women's sex-based rights and refusing to be forced to accept men in women's single-sex spaces and roles.

The problem is that these laws change culture, and then what happens in practice is not strictly in line with Equality law. Someone may have the right to refuse service to someone under equality law, but Ireland being what it is, they won't because they know they'll be demonised and boycotted.