Two independent Senators have sought clarification from Minister for Justice Simon Harris about the definition of gender in the new hate speech and hate crime legislation.
The proposed new laws – which would toughen incitement to hatred laws and make certain offences “hate crimes” – have passed the Dáil but must pass through the Seanad before they become law. The legislation is due before the Seanad in the coming weeks.
The legislation has been strongly criticised from various political standpoints, including by People Before Profit but also by some rural independent TDs of a more conservative outlook.
Now Senator and former attorney general Michael McDowell has written to Mr Harris seeking urgent clarification on the definition of gender in the Bill before it comes to the floor of the Seanad.
The Bill extends protection to people with “protected characteristics” – including race, colour, nationality, religion, national or ethnic origin (including membership of the Traveller community), descent, gender (including gender expression or identity), sex characteristics, sexual orientation and disability.
But Mr McDowell has questioned the definition of gender in the Bill, querying why it has been expanded from the definitions included in previous legislation, including legislation that allowed people to legally change their gender.
The definition of gender in the Bill is: “‘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...”
Mr McDowell has queried why this definition is different from the Gender Recognition Act, which he says has a binary definition of gender in that it “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”.
In the letter, Mr McDowell says he has “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... 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’,” he says.
“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’?”
Independent Senator Ronan Mullen accused the Government of “smuggling a radical new definition of gender into an already controversial hate speech law”.
Minister for Justice Simon Harris addressed the issue of defining genders during the Dáil debates on the legislation. In response to amendments from TDs Thomas Pringle and Aodhán Ó Ríordáin, Mr Harris said the question of expanding the definition of gender “has been carefully considered in the drafting”.
“The language is constantly evolving,” he said. “The approach I have taken in the Bill attempts to future-proof this provision to a degree by defining gender to include genders other than male or female.
“I consider this provides comprehensive protection under the Bill to persons with a non-binary gender identity while also allowing for any evolution of language in this area in the future. The legislation already as drafted does specifically, in relation to gender, define gender to include genders other than male or female and that does absolutely include persons with a non-binary gender identity.
“The concern is that language evolves in this area and that is why we were trying to come up with a wording and terminology that absolutely provided protection but also future-proofs the legislation somewhat in terms of evolving language. That is the rationale behind the current drafting.”
