LGBT rights in the Republic of Ireland

"LGBT rights in Ireland" redirects here. For LGBT rights in Northern Ireland, see LGBT rights in the United Kingdom.

While Ireland is relatively liberal, lesbian, gay, bisexual, and transgender (LGBT) persons there may face some legal challenges not experienced by non-LGBT citizens. Both male and female same-sex sexual activity are legal in the state. Government recognition of LGBT rights in Ireland has expanded greatly over the past two decades. Homosexuality was decriminalised in 1993, and most forms of discrimination based on sexual orientation is now outlawed. Ireland also forbids incitement to hatred based on sexual orientation.

A 2008 survey showed that 84% of Irish people support civil marriage or civil partnerships for same-sex couples, with 58% supporting full marriage rights in registry offices. The number who believe same-sex couples should only be allowed to have civil partnerships fell from 33% to 26%.^[1] A later Irish Times poll put support for same-sex marriage at 63%.^[2] A March 2011 The Sunday Times poll showed support for full civil marriage rights at 73%.^[3]

In July 2010, the Dáil (House of Representatives) and the Seanad passed the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, recognising civil partnerships between same-sex couples. The Bill passed all stages in the Dáil, without the need for a vote, and by a margin of 48 votes to 4 in the Seanad (Senate).The bill was supported by all parties, although individual politicians have criticised the legislation.^[4] Since the Civil Partnership legislation has been fully enacted and implemented from the start of 2011,^[5] gay and lesbian couples have been able to register their relationship before a registrar.^[6] The bill was signed by President Mary McAleese on 19 July 2010.^[7] The Minister for Justice signed the commencement order for the act on 23 December 2010. The law then came into force on 1 January 2011. Due to the three month waiting period for all civil ceremonies in Ireland it had been expected that the first Civil Partnership ceremonies would take place in April.^[8] However, the legislation does provide a mechanism for exemptions to be sought through the courts, and the first partnership, which was between two men, was registered on 7 February 2011.^[9] The first publicly celebrated Irish civil partnership under the Act took place on 5 April 2011, in Dublin.^[10]

Law regarding same-sex sexual activity

Same-sex sexual activity was decriminalised in 1993. This was the result of a campaign by Senator David Norris and the Campaign for Homosexual Law Reform which led to a ruling in 1988 that Irish laws prohibiting homosexual activities were in contravention of the European Convention on Human Rights. The Campaign for Homosexual Law Reform was founded in the 1970s to fight for the decriminalisation of homosexuality, its founding members including Senator Norris and former Presidents of Ireland Mary McAleese and Mary Robinson. Prior to 1993 certain laws dating from the nineteenth century rendered homosexual acts illegal. The relevant legislation was the 1861 Offences Against the Person Act, and the 1885 Criminal Law (Amendment) Act, both enacted by the Parliament of the United Kingdom before Irish independence, and having been repealed in England and Wales in 1967, Scotland in 1980 and Northern Ireland in 1982.

In 1983 David Norris took a case to the Supreme Court seeking to challenge the constitutionality of these laws but was unsuccessful. In its judgement (delivered by a 3–2 majority) the court referred to the "Christian and democratic nature of the Irish State" and argued that criminalisation served public health and the institution of marriage.

In 1988 Norris took a case to the European Court of Human Rights to argue that Irish law was incompatible with the European Convention on Human Rights. The court, in the case of Norris v. Ireland,^[11] ruled that the criminalisation of homosexuality in the Republic violated Article 8 of the Convention, which guarantees the right to privacy in personal affairs. The Oireachtas (Irish parliament) decriminalised homosexuality five years later, when the Minister for Justice, Maire Geoghegan-Quinn, in the 1992–1994 Fianna Fáil—Labour coalition government included decriminalisation with an equal age of consent (an equal age of consent was not required by the ECHR ruling) in a Bill to deal with various sexual offences. None of the parties represented in the Oireachtas opposed decriminalisation. Coincidentally, the task of signing the Bill decriminalising homosexual acts fell to the then President of Ireland, Mary Robinson, an outspoken defender of gay rights who as a barrister and Senior Counsel had represented Norris in his European Court of Human Rights case.

Recognition

Marriage

Marriage in Ireland is currently regulated by the Civil Registration Act 2004.^[12] Section 2 restates the Common Law definition of marriage and according to section 2(2)(e) a marriage would be invalid if both parties to a marriage are of the same sex. Therefore Ireland does not allow same-sex marriage.

The Irish courts first dealt with the case of same-sex marriage in the case of Foy v. An t-Ard Chláraitheoir & Ors.^[13] In that case, Dr Foy was a male-to-female transsexual and sought a finding that she was born female but suffered from a congenital disability and claimed that the existing legal regime infringed her constitutional rights to marry a biological man. In support of her claim, she relied on case law from the ECHR. McKechnie J noted that in Ireland it is crucial that parties to a marriage be of the opposite biological sex. The judge noted that Article 12 of the ECHR is equally predicated. Accordingly, he found that there was no sustainable basis for the applicant's submission that the law which prohibited her from marrying a party of the same biological sex as herself, was a violation of her constitutional right to marry. The judge concluded that the right to marry is not absolute and has to be evaluated in the context of several other rights including the rights of society. Therefore, the state is entitled to hold the view which is espoused and evident from its laws.

The Irish Supreme Court returned Foy's case to the High Court in 2005^[14] to consider the issues in light of the Goodwin decision^[15] of the ECHR. McKechnie J was very reproachful of the government in his judgment and asserted that, because there is no express provision in the Civil Registration Act, which was enacted after the Goodwin decision, it must be questioned as to whether the State deliberately refrained from adopting any remedial measures to address the ongoing problems. He emphasised that Ireland is very much isolated within the member states of the Council of Europe with regards to these matters. The judge concluded that by reason of the absence of any provision which would enable the acquired identity of Dr Foy to be legally recognised in this jurisdiction, the state is in breach of its positive obligations under Art 8 of the Convention.

The Labour Party,^[16] the Green Party,^[17] Sinn Féin,^[18] the Socialist Party,^[19] and Ógra Fianna Fáil^[20] all support the right of marriage for same-sex couples.

The new Fine Gael-Labour government agreed to establish a Constitutional Convention to consider same-sex marriage among other things.^[21]

Civil partnership

The Civil Partnerships Bill 2009 was presented to the Cabinet on 24 June 2009 and was published on 26 June 2009.^[22] Although most LGBT advocacy groups cautiously welcomed the Government's legislation, there have been criticisms of the proposals. One major criticism states that the legislation effectively enshrines discrimination in law insofar as separate contractual arrangements with greater privileges will continue to exist for opposite-sex marriages concurrent to lesser arrangements for those wishing to take out Civil Partnerships. In particular, the denial of the right to apply to adopt rights to couples with a Civil Partnership has been cited as particularly discriminatory.^[23][24]

The bill will represent the culmination of detailed work between the parties of the governing coalition. With the entering into government of the Green Party with Fianna Fáil & the Progressive Democrats in June 2007, civil partnership legislation moved up the political agenda. On 16 July 2007, Taoiseach Bertie Ahern said that "we will legislate for Civil Partnerships at the earliest possible date in the lifetime of this Government."^[25] Following a cabinet meeting on 30 October 2007, the government said it would introduce legislation by the end of March 2008 and expected the bill to pass within a year of that. As of the end of April, no legislation had been presented by the cabinet, though many speculated that this was due to the resignation of Bertie Ahern as Taoiseach over the same period.

The bill passed all stages in Dáil Éireann on 1 July 2010 with cross-party support resulting in it passing without a vote,^[26] and passed by a margin of 48 votes to 4 in the Seanad (Senate) on 9 July.^[27] It will grant gay couples several rights now only granted to married couples, but does not recognise children raised by gay couples as being their children. Irish law only allows gay people to adopt children as individuals while allowing gay couples to jointly foster. It also will grant cohabitants, both gay and straight, who have lived together for at least five years limited rights in an opt-out scheme where a former partner could apply to court on the breakdown of a relationship to make the other former partner provide financial support to him/her. The bill was signed into law by President Mary McAleese on 19 July. Gay activist Grace Margaret Coleman welcomes the introduction of the recent bill but stated on Midlands 103 that 'the introduction of the bill should only be viewed as a stepping stone to full gay marriage and the struggle for proper recognition of lesbian women in Ireland is still ongoing.' ^[7]

Discrimination protections

Discrimination on the basis of sexual orientation is outlawed by the Employment Equality Act, 1998^[28] and the Equal Status Act, 2000.^[29] These laws forbid discrimination in any of the following areas: employment, vocational training, advertising, collective agreements, the provision of goods and services, and other publicly available opportunities.

Section 37 of the Employment Equality Act, does however allow religious organisations, medical institutions or educational institutions an exemption on employment grounds. If such an organisation wants to maintain the religious ethos or prevent the religious ethos from being undermined then it is not illegal under section 37 for them to discriminate. This applies to employment only. Groups such as the Irish Congress of Trade Unions, the Irish National Teachers Organisation and the Irish Labour Party want to abolish section 37.

The Prohibition of Incitement to Hatred Act, 1989^[30] outlaws incitement to hatred based on sexual orientation.

Gender identity

Sex changes are not legally recognised by Ireland. On 19 October 2007 Dr. Lydia Foy won her case in the High Court to get a new birth certificate recording her as having been born female.^[31] The Government indicated in April 2008 that the state was appealing the Lydia Foy case to the Supreme Court.^[32] The State has since dropped its appeal and has stated it will introduce legislation in the future.^[33]

Adoption

Irish adoption law currently only allows for applications to adopt children by married couples or single applicants. It is therefore not possible for a gay couple to jointly apply to adopt, but a single gay person or one partner of a couple may apply. Even though joint-adoption by a gay couple is not possible, a same-sex couple may submit a joint application to foster children as there is a dire need for foster parents.

Blood donations

At present the Irish Blood Transfusion Service has placed a ban on donations from males who have ever had anal or oral sex with another male. Groups such as the Union of Students in Ireland have been campaigning for this ban to be repealed.

Summary

See also

• Campaign for Homosexual Law Reform (Ireland)
• Recognition of same-sex unions in Ireland
• LGBT rights in the United Kingdom
• List of Laws and Reports on Gay and Lesbian Rights in Ireland
• LGBT rights in Europe
• Non-gender specific definition of Family in the Constitution, Bunreacht na hÉireann, An Teaghlach, Airteagal 41.3.1°), from Wiktionary.
• Gay and Lesbian Equality Network (GLEN)

References

Bibliography

• 58% support Gay Marriage
• Bertie Ahern opens gay rights organisation
• Employment Equity Act, 1998
• Equal Status Act, 2000.
• Norris v. A.G. – [1983] IESC 3; [1984] IR 36 (22 April 1983)– Supreme Court judgement affirming the law criminalising homosexuality
• Norris v. Ireland – 10581/83 [1988] ECHR 22 (26 October 1988)– European Court of Human Rights judgement overturning the Supreme Court ruling
• Support group for Irish Pink Adoptions
• Pat Rabbitte takes part in Pride 2006
• [1] The blogger notes the recent decision of the Irish Cabinet to introduce some form of law enabling same sex unions by March 2008.
• Right to legal gender change won in Irish High Court, May 2008