Minister Simon Harris
Department of Justice
51 St. Stephen’s Green
Dublin 2
10th May 2023
Dear Minister Harris,
I write in connection with the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 which has been passed by Dáil Éireann and is now due for consideration by the Seanad.
In the definitions section the term gender is given the following meaning:
“gender” means the gender of a person or the gender which a person expresses as the person’s preferred gender or with which the person identifies and includes transgender and a gender other than those of male and female”
Given that Section 18 (1) of the Gender Recognition Act 2015 provides that a gender recognition certificate has effect that if the preferred gender is the male gender, the person’s sex becomes that of a man, and if the female gender the person’s sex becomes that of a woman, I have great difficulty in understanding what is intended by the term “transgender” and the phrase “a gender other than those of male and female”.
Since one of the purposes of the Bill is to expand the concept of protected characteristics beyond the characteristics dealt with in the Framework Directive, it seems to me to be important that members of the Seanad including myself should understand the meaning of the phrases “transgender” and “a gender other than those of male and female”.
The purpose of this letter is, in advance of the Second Stage debate in the Seanad to obtain absolute clarity as to what you as proposer of the Bill intend these terms to mean. In particular, I must ask the following questions:
a) Is transgender a gender for the purposes of Irish law?
and
b) Can you specify what is meant, in addition to transgender, by “any gender other than those of male and female”?
Bearing in mind the binary nature of gender recognition certificates as evidenced by Section 18 (1) of the Gender Recognition Act 2015, you will appreciate the need for absolute clarity as to the intended meaning of the term gender as defined in the Bill.
I await hearing from you as a matter of urgency.
Yours sincerely,
Senator Michael McDowell