The Government should amend the Gender Recognition Bill and drop the exclusion on 16 to18-year-olds and their parents seeking a Gender Recognition Certificate, the Ombudsman for Children has said.
If the Bill is enacted, such a certificate will mean that a person’s gender will be recognised by the State for all purposes including dealings with public and private bodies.
The call has been made by the ombudsman in response to a request by Minister for Social Protection Joan Burton who sought formal advice from the office.
In her response, Ombudsman for Children Emily Logan has advised the Minister that current proposals "are unlikely" to achieve the aim of safeguarding children, especially those transgender or intersex children aged between 16 and 18.
“This office believes that the current proposals will not operate in children and young people’s interests, nor vindicate their rights,” Ms Logan writes.
“This office favours an alternative approach that would provide for a gender recognition mechanism for those under the age of 18 . . . ”
She adds that legislation in this field must be fully aligned with international human rights requirements, which refer to young people under age 18 including the European Convention on Human Rights (ECHR) and the UN Convention on the Rights of the Child (UNCRC), described by Ms Logan as “the most widely ratified human rights treaty in the world”.
The UNCRC does not specifically address the question of transgender or intersex children, but Ms Logan argues that the convention’s article 2 requires states “to respect and ensure the rights set out on the convention to each child within their jurisdiction without discrimination of any kind”.
She also cites the convention’s article 8 which refers to the right of the child “to preserve his or her identity” but recognises that the framers of this article have left specific aspects of identity, including sexuality, less than exhaustively covered.
Article 12 of the convention, she says, also obliges states to assure “to children who are capable of forming their own views the right to express those views in all matters affecting them, with due weight given to those views in accordance with the age and maturity of the children”.
Ms Logan said it was also appropriate to consider the force of the ECHR in relation to young people under age 18 who may seek a Gender Recognition Certificate.
Application
The response to Ms Burton deals at length with legal precedent in this area and advises the Minister: "In light of the serious restriction on children and young people's right to gender recognition, the Ombudsman believes that the Minister should consider an alternative legislative approach that eschews an absolute prohibition on the granting of Gender Recognition Certificates to those under the age of 18."
A failure to do so, the ombudsman warns the Minister, “may well render the legislation vulnerable to challenge under article 8 of the ECHR”.
This article states that adults and children alike are entitled to a right to respect for private and family life and this includes gender recognition.
Ms Logan also calls for parents or guardians to be able to make an application for Gender Recognition Certificates and says provision should be made to allow young people who have reached the age of 16 to apply for legal recognition of their preferred gender on their own initiative.
