SOCIAL PROTECTION minister Joan Burton is drafting legislation to address a legal problem where transgender people can only enter a civil partnership if their new gender was recognised abroad.

The loophole arose after it emerged that a transgender woman was able to enter into a civil partnership with her partner under the Civil Partnership Act introduced in 2010, even though the State currently has no mechanism to formally acknowledge the acquired gender of a transgender person.

The woman’s gender was officially recognised by the Civil Registration Service because their gender had been acquired in another state.

Burton said the circumstances had come about because the transgender woman, who is from another EU country, had her acquired gender recognised in her country of origin.

She was therefore able to have this acquired gender recognised in Ireland, with the Registrar General obtaining legal advice to the extent that the State was permitted to rely on the documents presented by the transgender woman, and not obliged to ‘look behind’ it.

A bill is now being drafted by the Department in order to offer legal recognition to the acquired gender of Irish persons, which will give equality to Irish people who seek to change their gender.

TENI, the Transgender Equality Network of Ireland, welcomed the news of the draft legislation and have urged that it be introduced as a matter of urgency.

Director Broden Giambrone said the group welcomed the State’s de facto recognition of the resident’s preferred gender, and asked Burton to “move quickly so that all transgender people in Ireland can enjoy the same right.”

‘Matter of equality’

Sinn Féin justice spokesman Jonathan O’Brien, who raised the matter in the Dáil, said the legislation was a “matter of equality”.

“People should have the right to equality and that is at the core of it,” he said.

The current legal situation, where transgender people could enter into civil partnerships in Ireland but only if their new gender was acquired in another country, “discriminates against people and it shouldn’t.”

O’Brien said the current status of the legislation meant it was not likely to be introduced within 12 months, a timeframe which he found unacceptable.

While Ireland currently allows transgender people to hold passports and driving licences reflecting their preferred gender, it did not allow birth certificates to be amended to reflect an acquired gender until the successful challenge taken by Lydia Foy in 2007.

In that case Foy, who was born a male, successfully argued (at the second attempt) that Ireland had failed to provide a “meaningful recognition” of her female identify, and had therefore breached a provision of the European Court of Human Rights.

Despite that ruling, however, legislation has not yet been brought to successfully amend Irish law. The Irish government initially indicated its intention to appeal the High Court ruling to the Supreme Court, but withdrew this challenge in 2010.

An independent committee came up with legislative proposals last year, but TENI criticised its report for proposing that people in heterosexual marriages be forced to seek a divorce, undergo a gender reassignment and enter a new civil partnership in order to remain married to their previous spouse.

Ireland is one of the last countries in Europe to amend its laws and offer statutory recognition of transgender people.