This is a list of laws, court cases and reports on LGBT rights in Ireland.
This was passed by the English parliament under King Henry VIII and applied to England and Wales only. It is also known as (25 Henry VIII c. 6). It outlawed the practice of 'buggery' which is male-to-male sexual intercourse. The penalty was death. It was the first piece of civil law to outlaw male-to-male sex acts. Ireland was a separate kingdom and had its own parliament. It is unclear if the Irish parliament passed a similar piece of legislation. Often the Irish parliament passed legislation that mirrored legislation of England. [1]
This act brought the provisions of the Offences Against the Person Act 1828 into law in Ireland. Under the Offences Against the Person Act, 1828 buggery was punishable by death.[2]
This act updated and streamlined the criminal law of Great Britain and Ireland. It outlawed many forms of practices including 'buggery' or male-to-male penetrative sex. The punishment was life imprisonment or a jail sentence of not less than 10 years for male-to-male penetrative sex. It abolished the death penalty for such acts, which has been law up to this point.[3]
Commonly known as the Labouchere Amendment. This act outlawed what was termed ‘acts of gross indecency’ between men both in public and in private. The definition was vague and included intimate acts falling short of penetrative sex between two men. Male to male sex was illegal under previous law but it was very narrowly interpreted by the courts. Usually the courts required that penetration to have occurred for 'buggery' to have taken place. This new act made it much easier to punish the intimate acts of men together. The penalty was a maximum of two years imprisonment. The most famous person to be convicted under this act was Oscar Wilde.[4]
This prohibited soliciting or importuning for immoral purposes. It was originally intended as a measure against prostitution, however in practice these measures where almost solely applied to male-to-male sex acts.[3]
This allowed flogging to be used as a punishment against existing crimes in regards to sexual offences.[3]
Proposed to extend the provision criminalising gross indecency between males to gross indecency between women. This bill was dropped due to those who felt that to even criminalise female-to-female sex acts would draw attention to these acts and publicise them. As a result female-to-female sex acts were not illegal unlike male-to-male sex acts.[5]
David Norris, later to become a senator for Trinity College, Dublin and presidential candidate, took the Attorney General to the High Court over the criminalisation of male-to-male sex. He argued that the law infringed on his right to privacy to have consensual sex with a man and that since the introduction of the Constitution of Ireland the law passed under British rule became repugnant to the constitution. The High Court ruled against Norris. He appealed his case to the Supreme Court.[3]
Having lost his High Court case Norris appealed his case to the Supreme Court. The Supreme Court upheld the constitutionality of the law by a three to two verdict.[3]
Having lost the Supreme Court case Norris took his case to the European Court of Human Rights. The European Court struck down the law criminalising male-to-male sex on the grounds of privacy. It was held that this infringed on the right of adults to engage in acts of their own choice. Irish law was regarded as too narrow and extreme.[6]
These regulations affected the terms and conditions of employment of civil servants. These regulations prohibited discrimination on the grounds of sexual orientation or if a person was HIV positive.[7]
Prohibited inciting hatred on various grounds include a persons sexual orientation.[8]
This act regulates the service of fostering. This act permits same-sex couples to apply jointly for fostering. This may not have been originally intended. This situation is unlike the adoption laws which strictly confines adoption to married couples and single persons. A gay man or lesbian woman may apply for adoption singly.[9]
Decriminalised acts of male-to-male sex, repealed the relevant sections in the Offences Against the Person Act, 1861 and repealed as a whole the Criminal Law Amendment Act 1885. It also abolished the legal definition of ‘buggery’ for persons over the age of 17. This act also abolished ‘acts of gross indecency’ between males.[10]
Prohibited dismissing an employee on a number of grounds including sexual orientation.[11]
Allows for a partner in a same-sex cohabiting relationship to apply for safety order or an interim protection order but does not allow for a permanent barring order which is available to married couples and opposite-sex couples. There is currently a proposal to expand this law. See Civil Law (Misc Provisions) Bill 2010. [12][13]
Widened a persons right to grant power of attorney beyond their family or next of kin. A person could grant power of attorney to their partner where that person becomes unable to make decisions for themselves due to mental incapacity.[12][14]
Allows refugee status to be conferred on an individual on the basis of a fear of persecution arising from their sexual orientation.[15]
Sexual orientation was included amongst the grounds for prohibiting discrimination at work. See Treaty of Amsterdam.
Prohibited discrimination at work on a number of grounds including sexual orientation. The acts covered aspects such as hire and fire; employment contracts; promotion and demotion; harassment at work; indirect discrimination; pay and work conditions; membership of unions and professional bodies; and participating in training courses. A general exception was granted to religious institutions under Section 37(1) of this act such as schools, hospitals and social services. Section 37(1) allows a religious run institution to claim an exemption where they can take reasonable action against an employee to uphold the ethos of their institution. This section has never been tested to date on the sexual orientation grounds. Mechanisms were put in place to ensure the enforcement of this Act. A person can seek mediation or adjudication with the Equality Authority or go to the Equality Tribunal for a binding ruling which can only be appealed to the courts on a point of law.[16]
Prohibited discrimination on many grounds, including sexual orientation, in the provision of services and goods by commercial companies as well as by state institutions such as the civil service and state agencies. It covered a wide area of services such as financial produces–mortgages, savings, loans; access to building and clubs and societies–not be allowed to be told to leave on the grounds on ones sexual orientation from a nightclub etc.; the state through it civil service and its various agencies could not discriminate in matter such as–granting loans or grants to university, providing an individual dole to other social assistant; in terms of renting property a landlord could not refuse to offer accommodation to a gay man or couple or evict them on that basis. The Act also empowered the Equality Authority to monitor and enforce the law regarding equality in both the provision of goods and services and employment. A person can take a case to the Equality Authority or the Equality Tribunal in the event of discrimination occurring.[17]
Allowed unmarried couples (including same-sex couples) to apply for relief on Capital Acquisitions Tax on their property in limited circumstances.[12][18]
Prohibited discrimination of the provision of health insurance on the grounds of sexual orientation. This applies to individuals and not same-sex couples.[19]
In a wide ranging report on the situation of gays and lesbian in Ireland the Equality Authority made many recommendations for change across many areas. Most of its recommendations were non statutory. It called for all policies of the government departments to be equality proofed on the grounds to sexual orientation. It called for many changes needed to help benefit gays and lesbians for example hospital visits of partners of same sex couples, provision of services where the provider are ignorant or unaware of the needs of gays and lesbian. It also called on for civil marriage to be widened to also for same sex couples to marry. It also called on for civil partnership laws to be introduced if same sex marriage is not allowed.[20]
This report backed up the report of the Equality Authority 2002 and recommended that legislation be enacted to allow for recognition of same sex couples.
In this consultation paper the Law Reform Commission suggested a scheme whereby same sex and opposite sex couples who lived together for 3 years (2 years if they have a child) could make arrangements or sign a legally binding contract in regards to taxation, pensions, inheritance, custody and other matters between themselves. Married couples automatically have a wide range of rights, protections and duties under law. Same sex couples who cannot marry and opposite sex couples who live together but who choose not to marry do not benefit from many of these rights unless specifically provided so by law. There are very few such rights conferred by law to such couples. The consultation paper did not propose a schemes such as civil partnership or domestic partnership that exist in other countries, as this would prescribe a fixed bundle of rights and duties. Instead each couple would be free sign a cohabiting contract that would have the force of law. On the death or break up of a relationship one or both of the parties could apply to court to get various court orders for payment or property if they are economically dependent. The report recommended that cohabiting couples should have the right to opt out of this arrangement but the courts could lay aside this opt-out if it was judged that this opt-out would cause injustice to a former cohabitant.[21]
Placed a bar on the ability of two men or two women from entering into marriage. This reinforced the common law understanding that marriage is between one man and one woman. This act allows for marriages (between a man and a woman) to take place in other locations than a church and a registry office.[22]
Enacted various provisions. It prohibited unfair discrimination in the provision of occupational pensions on the grounds of sexual orientation. This covers individuals only. This does not make a requirement for pension schemes to pay a death grant to the surviving partner of a same-sex relationship. It also limited the provision of social welfare to married couples and unmarried opposite-sex couple. Same-sex couples were to be treated as individuals and thus are ineligible for social welfare that opposite-sex cohabiting couple may benefit from. This has been changed under the Social Welfare and Pensions Act 2010.[23]
Allows for positive action to be taken in the workforce in order to promote greater equality on all nine grounds as outlined in the act including sexual orientation. It also closes a loophole in regards to harassment whereby a person does not have to have the characteristics imputed about them in a situation of harassment. For example if a person is subject to homophobic jokes but that person is not gay or lesbian they may take legal action to redress the harassment. Another new provision covers people who suffer from discrimination by association. Such persons can make a case even if they do not fall into one of the nine specific groups which are covered under the legislation. For example someone who defends a co-work who is gay from harassment could in turn suffer from harassment, that person can take a case to the Equality Tribunal. Another development deals with indirect discrimination where a particular measure, while appearing neutral on the face of it, has a disproportionate impact on a particular group or individual in the workplace. Companies are required to monitor the impact of their policies on their employers and adjust their policies to cater for different needs of their employees.[24]
This study published by the Irish Human Rights Commission explored the legal situation in regards to what it called de facto couples i.e. same sex and opposite sex unmarried couples. It argued that there may be a legal obligation on the Irish government to introduce legal recognition of same sex couples under the Good Friday Agreement, which has constitutional force. The Good Friday Agreement includes the principal of equivalency of rights. In other words any rights that exist in Northern Ireland must also broadly exist in the Republic of Ireland and vice versa. The study argued that since the introduction of civil partnership for same-sex couples in Northern Ireland in 2005 a case could be made for an obligation on the Irish government to introduce the same rights into the Republic.[25]
The All-party Oireachtas committee set up to examine the constitution published a report on the provisions effecting the part about the Family. It recommended that civil partnership be introduced for same sex couples but that marriage remain restricted to men and women and that provision should me made for opposite sex couples who live together but who do not marry. Any such provisions for opposite sex couples should exclude same sex couples.[26]
Commonly known as the KAL case. Two women, Katherine Zappone and Ann Louise Gilligan, who got married in Canada and live in Ireland, took the Revenue Commissioners to court since they refused to recognise their Canadian marriage and for refusing to grant them joint tax assessment. Married couples in Ireland are entitled to have their income jointly assessed as this reduces the overall amount of tax paid. The couple argued that marriage is not defined in the constitution to specify either same sex or opposite sex. They also argued that their rights were being infringed by the lack of recognition of their marriage. The High Court rejected the arguments of the couple. Ms Justice Dunne did accept that the Irish Constitution does not define marriage as between opposite sex couples, however she argued that marriage was traditionally understood to be between a man and a woman and that this understanding of marriage ran through all cases and legislation about the rights and duties of married couples. Katherine Zappone and Ann Louise Gilligan decided to appeal their case to the Supreme Court. No date has been set for the appeal although it is expected that it will be heard in 2011.[27]
This was drafted by a working group of former politicians, civil servant and members from relevant NGOs. This working group was established by the then Minister for Justice, Equality and Law Reform. It was chaired by Anne Colley. This paper examined the various options open to the government in regards to legal recognition of cohabiting couples, both same-sex and opposite-sex. It acknowledged that only the introduction of same-sex marriage would grant full equality for same-sex couples. However the introduction of same-sex marriage would be constitutionally vulnerable. It recommended that civil partnership be introduces for same sex couples.[28]
In this report the Law Reform Commission repeats it recommendations but strengthened them to allow for a wider range of protections especially those effecting pensions and employment law. It contained a draft bill to allow legal recognise of cohabiting couples. Almost all of this draft bill was included as Part 15 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010.[29]
Entitles a person to take force majeure leave which is paid time off work to care for their same-sex partner and to make arrangements to have them taken care off in the event of a sudden illness or in an emergency. This does not cover parental leave which is not available to same-sex couples but is available to married couples, cohabiting opposite-sex couples and single parents.[30]
This statutory instrument put into law the EU directive 2004/38/EC. It allows a same-sex couples where one person is a EEA national and the other who is a non-EEA national to live in Ireland without the requirement of getting a work permit. The same-sex couple had to be in a relationship for 2 years and the relationship had to be attestable. that is there was proof that the relationship was genuine. This did not cover Irish nationals who were in a relationship with a non-EEA national. In 2008 this loophole was closed and non-EEA national who is cohabiting with an Irish national is not required to get a work permit.[31]
The Treaty of Lisbon was signed in 2007 and finally came into legal effect on 1st December 2009. The Treaty of Lisbon gives legal effect to the Charter of Fundamental Rights of the European Union. This Charter prohibits any discrimination in the workplace on the grounds of sexual orientation. The Charter is limited in its application to areas of law within the competencies of the EU. It is unclear what consequences this will have vis-á-vis Section 37 (1) of the Employment Equality Act, 1998 which grants an exemption to religious run institution to discriminate legally in order to uphold the ethos of their institution.[32]
In this case a lesbian couple P.L. and B.M. had a child using sperm donated by J.McD. a gay friend of theirs. They had arranged a contract with J.McD. The role of J.McD. was to act as an ‘uncle’ to the child but not be involved in the daily life of the child. J.McD. went to court to establish guardianship over the child, as its natural father. The High Court refused J.McD.'s application. The High Court upheld the contract agreed by P.L. and B.M. and granted them sole guardianship and custody of the child at the centre of the case. Significantly the High Court acknowledged the lesbian couple and their child as a de facto family who enjoyed the rights granted to families under Article 8 of the European Convention of Human Rights. The judge also called upon the Oireachtas to legislate for same-sex couple who raise children and recognise them as families.[33]
This amended the 2006 regulations. It removed the requirement that a same-sex couple with one of the partners being a non-EEA national must have been resident in another member state in order to move to Ireland. This meant that an Irish citizen and his or her same-sex partner could move to Ireland. This change of law came about as a result of the Metock Case which was decided at the European Court of Justice.[34]
The Supreme Court reversed the decision of the High Court. McD was granted guardianship over the child as its the natural father. The Supreme Court refused to grant constitutional recognition to any relationship outside of marriage.[35]
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 allows for same-sex couples to enter a civil partnership on the same terms as married couples. Civil partners must wait 2 years to get their partnership dissolved. Judicial separation is not allowed. Civil partners are not allowed to adopt jointly though one civil partner may adopt singly. Also civil partners cannot have joint guardianship over any children they raise together. The act provides for the of succession of property, pension entitlements, domestic violence, and maintenance in the event of a breakdown of a relationship. The social welfare benefits and the tax entitlements of civil partners are dealt with in other pieces of legislation (see below). The act makes provision for recognition of foreign relationships in Ireland as civil partnerships. The act does not deal with residency of same-sex couples that wish to become civil partnered in Ireland.
The act also provides for legal recognition of cohabiting couples (both opposite-sex and same-sex) where they have been together for 5 years or 2 years if they have children. Cohabiting couples will be able to enter into a written contract where they can arrange their affairs on finance and property and these contracts will have the force of law. Where a cohabitation relationship ends on breakdown or on death one or both of the cohabitants will be able to apply to court to get a maintenance order, property adjustment order, pension adjustment order and other such orders that married couples can get when they are separating or divorcing, provided that the person bringing the case is or was economically dependant on the other cohabitant. It was signed by President Mary McAleese on 19 July 2010.[36] It took legal effect on 1 January 2011. The first public civil partnerships took place in April 2011.[37]
Part 2 of this act deals with the social welfare entitlements of civil partners. This act amends the Social Welfare Consolidation Act, 2005, which gives the legal basis to most of the present social welfare entitlements and schemes. Civil partners get the same benefits as married couples. Same-sex cohabiting couples who choose not to enter a civil partnership are entitled to claim benefits as a 'Qualified Adult' on the same basis as cohabiting opposite-sex couples. Since the coming into effect of this Act same-sex cohabiting couples will have their income jointly assessed when claiming social welfare.[38]
This act grants civil partners the same tax entitlements as married coupled in income tax, stamp duty (which covers the buying and selling of homes), capital acquisitions tax (which covers the inheritance of property), capital gains tax, value added tax (VAT) and other taxes and fees. This act covers civil partners only. Same-sex cohabiting couples are not entitled to the same range of tax entitlements and must enter a civil partnership to avail of this. The provisions of this act were originally to have been included in the Finance Act, 2011 but they were left out as a shorted Finance Act was passed. This was due to the general election which was held on the 25th February 2011. Some of the tax entitlements of civil partners have been made retrospective to 1 January 2011 such as capital acquisitions tax and stamp duty. Relief on income tax starts from the date of entry into a civil partnership. Married couples are treated in the same way as they gain relief on income tax from the date of marriage. [39][40]
This is an omnibus act covering many areas. It amends the Domestic Violence Act, 1996. A person who is living or has lived in an intimate and committed same-sex or opposite-sex relationship will be able to apply for a barring order or a safety order. This expands the grounds of relief that a person can get. Previously same-sex couples could only get temporary relief such as stopping orders and interim protection orders. Also this act will also allow a person to apply for a safety order against a person with whom he or she had a child in common but who have never lived together.[41]
This bill proposes to reform the law regarding immigration and residence in Ireland. It is designed to replace all previous legislation. Under amendments proposed by the Minister of Justice, Equality and Law Reform civil partners will be treated the same as married couples in immigration law. Some concern has been raised about family reunification for same-sex couples where one partner is a non-EU national.[42]
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