Gender Recognition and existing legislation

Slowyourrole

I'm just wondering how the gender recognition act applies in the case of legislation that specifically references a man or a woman. The most obvious one is Section 2 of the Rape Act, 1981 where the offence of rape is restricted to an act committed by a man on a woman. Could a person avoid a prosecution for rape by changing their gender before the act?

maxsmum

Gender is different to biological sex, in interpretation of the 1981 Act I am sure a judge would read man as sex instead of gender
Although this Act should be updated to refer to person against another person anyway I would have thought
Good question

One eyed Jack

Slowyourrole wrote: »

I'm just wondering how the gender recognition act applies in the case of legislation that specifically references a man or a woman. The most obvious one is Section 2 of the Rape Act, 1981 where the offence of rape is restricted to an act committed by a man on a woman. Could a person avoid a prosecution for rape by changing their gender before the act?

Simple answer to your question is no - a person is still liable for any consequences of any acts prior to the issue of a gender recognition certificate -


(6) The issue of a gender recognition certificate shall not affect the rights or liabilities of a person or consequences of an action by the person in their original gender prior to the date of issue of the certificate.


Gender Recognition Act 2015, S18.6

Slowyourrole

One eyed Jack wrote: »

Simple answer to your question is no - a person is still liable for any consequences of any acts prior to the issue of a gender recognition certificate -


(6) The issue of a gender recognition certificate shall not affect the rights or liabilities of a person or consequences of an action by the person in their original gender prior to the date of issue of the certificate.

I'm talking about an act committed after the issuing of the cert.

One eyed Jack

Slowyourrole wrote: »

I'm talking about an act committed after the issuing of the cert.

Apologies, that’s addressed in Section 23:


Gender specific offences

23. (1) Where (apart from this subsection) a relevant gender-specific sexual offence could be committed or attempted only if the gender of the person to whom a gender recognition certificate is issued were not the preferred gender, the fact that the person’s gender has become the preferred gender does not prevent the sexual offence being committed or attempted.

(2) An offence is a relevant gender-specific sexual offence if a condition specified in subsection (3) is satisfied.

(3) The following conditions are referred to in subsection (2):

(a) that the offence may only be committed by a person of a particular gender;

(b) that the offence may only be committed against, or in relation to, a person of a particular gender.

(4) A part of the body surgically constructed (in particular through gender assignment surgery) is the same, for the purposes of a sexual offence, as a part of the body not so surgically constructed.

(5) In this section “sexual offence” means an offence specified in the Schedule to the Sex Offenders Act 2001.


Really though it would depend upon the circumstances in each individual case what charges a person may or may not be charged with or under what Acts they may be charged, but having their preferred gender recognised in law isn’t going to exempt anyone from being charged with a gender specific offence, either previous or current gender preference.


EDIT: Reference - http://www.irishstatutebook.ie/eli/2015/act/25/enacted/en/print#sec23

Slowyourrole

Thanks. Are there any non-sexual offences that specify gender in a similar way? None come to mind.

Victor

Slowyourrole wrote: »

Thanks. Are there any non-sexual offences that specify gender in a similar way? None come to mind.

There may be some niche offences in employment law, e.g. I understand women (of child-bearing age?) aren't allowed work in lead mines.

GM228

Victor wrote: »

There may be some niche offences in employment law, e.g. I understand women (of child-bearing age?) aren't allowed work in lead mines.

There were restrictions (but not absolute block) on women working in mines (i.e not at night) until around 1985 when such restrictions were lifted.

GM228

Slowyourrole wrote: »

Thanks. Are there any non-sexual offences that specify gender in a similar way? None come to mind.

There is one, and I believe it is the only non sexual gender based offence still in force - the offence of infanticide, I'm guessing very few here are aware of the offence.

It can only be performed by a woman killing a child, specifically a mother killing her child who is under 12 months old.

Carawaystick

Slowyourrole wrote: »

Thanks. Are there any non-sexual offences that specify gender in a similar way? None come to mind.

The regulations about abortion are implicitly gendered, theres no male healthcare procedures that are illegal to do if you dont go to the doc 3 days before the treatment

One eyed Jack

Carawaystick wrote: »

The regulations about abortion are implicitly gendered, theres no male healthcare procedures that are illegal to do if you dont go to the doc 3 days before the treatment

The actual offences themselves though, aren’t implicitly gendered -


Offences

23. (1) It shall be an offence for a person, by any means whatsoever, to intentionally end the life of a foetus otherwise than in accordance with the provisions of this Act.

(2) It shall be an offence for a person to prescribe, administer, supply or procure any drug, substance, instrument, apparatus or other thing knowing that it is intended to be used or employed with intent to end the life of a foetus, or being reckless as to whether it is intended to be so used or employed, otherwise than in accordance with the provisions of this Act.

(3) Subsections (1) and (2) shall not apply to a pregnant woman in respect of her own pregnancy.


Health (Regulation of Termination of Pregnancy) Act 2018, S.23