Amending the Gender Recognition Act 2015 to Protect Women
Following the chaos surrounding Scotland’s Gender Recognition Reform Bill, which ultimately contributed to the resignation of Nicola Sturgeon, is it time for an Irish Gender Recognition Reform Bill – a bill which aims to amend the Gender Recognition Act 2015 to offer more protection for Irish women?
With potential lessons for us here in Ireland, the controversy in Scotland surrounding the incarceration of double rapist Adam Graham, aka Isla Bryson, in a female prison, lays bare one of the potential implications of the Scottish National Party’s (SNP) push to introduce the Gender Recognition Reform (GRR) Bill, with its introduction of self-identification for trans-identified people. Critics of the GRR had argued that the move to self-ID could potentially be exploited by sexual predators who would rather be housed in the female estate than the male estate. Such concerns were raised in the House of Commons by members such as Rosie Duffield, who was the subject of a vitriolic retort by her own parliamentary colleague Lloyd Russell-Moyle, who predictably called her statement “transphobic”. He also said the idea of “linking trans people with predators is disgusting”. The case of Adam aka Isla is a complete vindication of Duffield’s concerns.
While the constitutional crisis caused by Scotland’s GRR Bill is of little import to us here in the South of Ireland (potentially more relevant to the North), the case of Adam aka Isla is one which has some potential lessons for us here. What many might not realise is that the sort of reforms the SNP sought to introduce via their controversial GRR bill are already the law of the land here in Ireland. In 2015 the Gender Recognition Act (GRA) was passed into law with all requirements for medical diagnoses dropped from the final piece of legislation. In order to apply for a Gender Recognition Certificate (GRC), including a change of name, those seeking to legally change their sex (not gender) simply require an application form detailing their desired name and sex, accompanied by a declaration from a Commissioner of the Oaths. The ease with which someone can change the legal information pertaining to their sex is probably the primary reason that, in the seven years since the introduction of the legislation, Ireland has issued twice as many GRCs per capita, as compared to the UK*, who introduced the legislation eighteen years ago.
Veil of Protection
That many in Ireland may be unaware of the current situation regarding legally changing sex is hardly surprising given the manner in which the legislation of the GRA was brought in. A report published by legal firm Dentons, the Thomson Reuters Foundation, and the International Lesbian, Gay, Bisexual, Transgender, Queer and Intersex (LGBTQI) Youth & Student Organisation (IGLYO), which amounts to a “playbook” for NGOs looking to surreptitiously influence the legal landscapes of the countries they operate in, advises NGOs to “Tie your campaign to more popular reform
In Ireland, Denmark and Norway, changes to the law on legal gender recognition were put through at the same time as other more popular reforms such as marriage equality legislation. This provided a veil of protection, particularly in Ireland, where marriage equality was strongly supported, but gender identity remained a more difficult issue to win public support for.” (emphasis added)..
The report also advises to “Avoid excessive press coverage and exposure – another technique which has been used to great effect is the limitation of press coverage and exposure.” (Nicholson, 2019)
While in Scotland, the inevitable publicity accompanying the constitutional crisis caused by the GRR has led to a forensic scrutiny of the implications – and ultimately contributed to the resignation of the First Minister, Nicola Sturgeon – the same has not been the case here in Ireland with regard to the GRA; despite the fact that the implications are very much the same. The reason for this is again laid bare in the report from Dentons, which states that, “in Ireland, activists have directly lobbied individual politicians and tried to keep press coverage to a minimum” (Nicholson 2019). This obvious subversion of the process of public scrutiny can, perhaps, excuse the wider Irish society for not being aware that the same is already happening in Irish prisons. According to the minutes of the meeting of the National LGBTI+ Inclusion Strategy Steering Committee on 23 June 2021, Seamus Beirne of the Irish Prison Service noted that there were three trans-identified men (TiMs), aka “transwomen”, incarcerated in Limerick women’s prison.
One of those prisoners, Barbie Kardashian, changed his name by deed poll in August 2020 from Gabriel Alejandro Gentile. During his trial, Barbie aka Gabriel’s defence barrister accepted that he had told staff at Coovagh House that he planned to travel to his mother’s house, overpower her, torture her with a knife, rape her with a screwdriver, and prolong the agony by pouring boiling water over her genitals. He said he planned to only exit his mother’s house once he was satisfied he had left his mother to “bleed out”.
Another, an unnamed sex offender who was convicted of ten counts of sexual assault and one count of cruelty against his stepson – who he routinely sexually assaulted and whose arms and legs he threatened to break – was initially remanded in Dóchas Centre Women’s Prison in Dublin, the only women’s prison in the country that provides accommodations for babies born to female inmates. The third, Sean Kavanagh, was convicted for assault and conveniently began identifying as a woman called Shauna prior to sentencing.
As part of his podcast series, “Paddy’s Podcast”, Radio and TV broadcaster Paddy O’Gorman interviewed Leanne Casey, a former female prisoner in Limerick Women’s Prison about the issue of being confined with trans-identified males. Ms Casey said the women “had to be locked back into the cell because they [the TiMs] were screaming things about women prisoners. What they said went, and if any of the [female] prisoners disrespected them, we’d get punished.” She said if female prisoners voiced their concerns or objections to being housed with the male prisoners, they would “get locked back then into the cell because you are disrespecting them and you are not treating them as women.” Ms Casey went on to say that some of these prisoners “would be roaring out the doors disgusting and vulgar talk”. She said the TiM prisoners are kept separate from the female prisoners but the female inmates could still hear them and their abusive language. In reference to the fact that imprisoned women tend to come from a background of social disadvantage and poverty, and often have a history of physical and sexual abuse, Ms Casey said, “things happen to women; do you know what I mean? And to hear that all over again…”.
Bound by Law
While Graham aka Isla has been removed from the women’s facility in Scotland, it remains to be seen if the same course of action will be possible under existing Irish law. In response to a parliamentary question from Independent TD Carol Nolan on 9 December 2021:
“To ask the Tánaiste and Minister for Justice and Equality the position of her Department with respect to ensuring that female only prisons are reserved to those that are biologically female; and if she will make a statement on the matter.”
Minister for Justice Helen McEntee stated:
“The Irish Prison Service is responsible for the safe and secure custody of all people held in prison. When a court makes an order committing a person to prison, the Irish Prison Service must accept that person into the prison as specified by the court. All people committed to prison are accommodated in accordance with their legal gender.” (Emphasis added).
Speaking about the housing of the trans identified men in the women’s prison, chair of the Law Society Criminal Law Committee, Robert Purcell, is reported as saying that the GRA has placed the State in an “impossible position”. The article in the Law Society Gazette reports Purcell as saying, “the court has to recognise the lawfulness of it [the GRA] and act on it … the judge has to sentence a person to a female prison on the basis they have a GRC stating they are female.”
Fíona Ní Chinnéide of the Irish Penal Reform Trust (IPRT) is quoted as saying, “the Irish Prison Service cannot transfer anyone between a male and a female prison; they can only transfer within the female prison estate, or within the male prison estate.” (Gazette 2019). So, it would seem the same course of action is not open to the Irish prison service as it is in Scotland. That is, if double rapist Adam Graham were going through the Irish judicial system and he had a shiny new GRC saying he is a woman, he would have been sentenced to a women’s prison. I wonder would our political leaders, Taoiseach Leo Varadkar, Tánaiste Micheál Martin, and Minister for Transport Eamon Ryan, have as much difficulty as Nicola Sturgeon in answering the question, is Adam Graham aka Isla Bryson a man or a woman?
Given the sort of suppression of media coverage encouraged in the Denton’s report mentioned above, it is somewhat understandable that we have not yet seen the sort of backlash that is happening in Scotland around the housing of trans identified males among some of the most vulnerable women in society, those in prison – often for petty crimes. However, as more people become aware of the potential issues that can arise from issuing twice as many GRCs per capita than the UK, in less than half the time, I am sure we will make a similar stand against the creeping capture of our society, from an ill-founded ideology. Perhaps it is time for our own Gender Recognition Reform Bill? However, unlike the bill proposed by the SNP in Scotland, let’s draft one which makes it far more difficult for sexual predators to exploit the glaring loopholes in the Gender Recognition Act.
*Figures based on most recent official UK figures and figure reported by TENI
Paddy’s Podcast, S2, E1 “Limerick Prison” (11 August 2022)
Karen Finlay, “Attacker Assaults Three Men, Blames Suppressed Transgender Identity Attacker” (22 February 2021), https://www.womenarehuman.com/attacker-assaults-three-men-blames-supp.
“Male-bodied transgender inmate housed with women”, Law Society of Ireland Gazette (18 October 2019), https://www.lawsociety.ie/gazette/top-stories/2019/10-october/male-bodied-transgender-inmate-housed-with-women-prisoners
Gender Recognition Certificate: applications and outcomes (29 June 2022), https://www.gov.uk/government/publications/gender-recognition-certificate-applications-and- outcomes/gender-recognition-certificate-applications-and-outcomes
Lucy Nicholson, Only Adults? Good Practices of Legal Gender Recognition for Youth (Reuters, 2019)
David Raleigh, “Probation report on Barbie Kardashian who threatened to kill mother ‘deeply disturbing’”, www.breakingnews.ie.(28 July 2022), https://www.breakingnews.ie/ireland/probation-report-on-barbie-kardashian-who-threatened-to-kill-mother-deeply-disturbing-1342624.html
Diana Shaw, “Male Sex Offender Placed in a Women’s Prison Already Plagued by Sexual Abuse Scandal”,
www.womenarhuman.com.(30 June 2019), https://www.womenarehuman.com/male-sex-offender-placed-in-womens-prison-already-plagued-by-sexual-abuse-scandal/
Han Tiernan, “TENI celebrates milestone issuing of Gender Recognition Certificates”, (9 May 2022), https://gcn.ie/teni-milestone-gender-recognition-certificates