Michael McDowell writes to Justice Minister Simon Harris over inclusion of transgender in new hate speech laws

He is asking: “Is transgender a gender for the purposes of Irish law?”

The ex-leader of the Progressive Democrats is raising queries on the Incitement to Violence or Hatred Bill 2022, which has passed through Dáil Éireann and is now for consideration by the Seanad.

Senator McDowell, a former Justice Minister, noted from the wording of the Bill that “gender” means the gender of a person, “or the gender which a person expresses as the person’s preferred gender”.

The draft legislation also defines gender as that sex “with which the person identifies, and includes transgender and a gender other than those of male and female”.

His intervention came as Senator Rónán Mullen criticised the Minister for Justice for allegedly “smuggling” a radical new definition of gender into “an already controversial hate speech law”.

Senator McDowell, a senior counsel, said the Gender Recognition Act 2015 already provided 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. A certificate would issue to this effect.

On that basis, he said, he had “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 was to expand protections against hate speech or acts, “it seems to me to be important that the Seanad should understand the meaning of the phrases,” he said.

He said he had written to the minister “to obtain absolute clarity” as to what it was intended those terms should mean. He had to ask the questions: “Is transgender a gender for the purposes of Irish law?” and “Can you specify what is meant, in addition to transgender, by ‘any gender other than those of male and female’?”

Mr McDowell said he was bearing in mind “the binary nature of gender recognition certificates as evidenced by the 2015 Act. “I await hearing from you as a matter of urgency,” he told Justice Minister Simon Harris.

Separately, Senator Mullen commented: “Given the many controversial aspects of the Bill, it seems like the Government is smuggling a new definition of gender in the hope that it won’t get the scrutiny it needs.”

“The danger is that concerned citizens, including parents and teachers of school-going children, may feel intimidated about expressing concern about radical new definitions of gender being pushed by the State and activist groups. The Government never consulted with the public about this,” he said.

Senator Mullen said the Government’s new definition of "gender” is one “at odds with all previous definitions and with no basis in reality”.

On Twitter, he added: “Since the foundation of the State, our legislation has always defined gender as binary, while referencing gender identity as something different.”

This new definition, he said, conflates gender with gender identity. “This is not an accidental mistake in draughtsmanship,” he claimed.

The “time-honoured, scientific binary definition of male and female” will be replaced by a definition which recognises “at least 105 genders that are currently internet-listed by gender engaged organisations,” Senator Mullen said.

Comment has been sought from the Minister for Justice and his spokespersons.