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Michael McDowell’s devastating question regarding the hate speech bill

Independent Senator Michael McDowell is a barrister, and a sharp cookie. We probably don’t agree on many things, but he’s always struck me as a man who respects civil liberties and who is unafraid to voice an opinion, even an unpopular one.

Today he wrote to Minister Simon Harris, to outline a devastating flaw in the hate-speech bill, that ill-conceived piece of legislation that was rushed through the Dáil at break-neck speed, and which has been described by Prof Gerard Casey as “a law designed to make you afraid”.

This is the letter sent by Senator McDowell:

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?


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

McDowell is pointing out that, legally, something entirely new will be created in this bill.

The Gender Recognition Act provides for a man to become a woman – to change sex under the law – and a woman to become a man, but does not create a gender (or genders) other than the sex binary of male and female.

However, under the bill, gender would also includes gender expression, and gender identity, and something in between, and something else entirely and whatever you are having yourself. If you find that confusing, then you’ve understood the question McDowell is asking.

He says that the existing law only recognises two genders, which reflects binary sex, but that this new bill proposes to recognise far more – but provides no definition of the same.

That’s why, as McDowell says, the Minister need to define what is meant by ‘transgender’ or ‘any gender other than those of male or female’.

It’s interesting, isn’t it, that the legal minds that drafted the bill, and all the political advisers who analysed it, and the TDs who examined it, never noticed this.

Or perhaps they did.

Senator McDowell writes that, given what’s in the GRA,  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”.

Of course he did. Everyone does. Almost no-one really believes the madness of an infinite number of genders and a non-binary world. Yet this law was drafted to ensure people could face a criminal investigation for making that point, if that was perceived as being ‘hateful’ rather than entirely sensible.

The Minister’s reply should prove interesting.

In the meantime, here’s a reminder of what the government really thinks of the public when they pretend they want to hear our opinions in sham public consultations.


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