Annual Review 2011
Ireland opted out of implementation of the EU Asylum Qualifi cation Directive (2011/95/EU), which among other provisions covers sexual orientation and gender identity.
- The Programme for Government included a commitment to address homophobic bullying in schools. The Department of Education and the Gay and Lesbian Network (GLEN) jointly produced guidelines on creating safe and supportive schools for young LGB people, which were endorsed by all education partners (trade unions, principals, religious bodies, etc.) and were distributed by the Department to all secondary schools. At the launch of the guidelines for school principals, the Minister for Education called for “the elimination of homophobic bullying,” and established a working group to draw a strategy to this aim.
- The Department of Education, in collaboration with GLEN and BeLonG To Youth Services, are producing LGBT curriculum content for social and person education of secondary school students.
- An in-service course for primary teachers addressing homophobic bullying in primary schools, created by Educate Together and BeLonG To Youth Services and approved by the Department of Education and Skills, was launched. This was the first ever in-service course on the topic.
- BeLonG To’s Stand Up Campaign ran in youth groups and some schools and produced an anti-homophobic bullying video which went viral on YouTube.
- In March, the Equality Tribunal ruled on the employment discrimination case of a trans woman who was dismissed following her revelation of her true gender identity to her employer and the subsequent process that she undertook towards living in accordance with it fulltime (including presenting herself as a woman at work). While the employer had originally agreed to the transition, he eventually told her that she had to revert back to her former male identity and wear male clothes when seeing clients. Moreover the Operations Manager continued to refer to her by her former male name, and she was told that she could not use the female toilets (even though male staff occasionally used them as well). Following further similar incidents, she was told that her productivity had reduced dramatically. The Equality Tribunal ruled that she was a victim of a constructive dismissal and awarded her more than €35,000 in compensation for the discrimination that she suffered. In this case the Tribunal could did not rely on the ground of gender identity and/or gender expression as they are not expressly covered by Irish law, and instead relied the grounds of gender and disability (taken to include Gender Identity Disorder) as was argued by the complainant.
- GLEN, the Irish Business and Employers Confederation (IBEC) and the Irish Congress of Trade Unions (ICTU) jointly produced a guide LGB Diversity in the Workplace which was launched by the Minister for Employment.
- The ICTU produced a number of publications in partnership with GLEN and the Transgender Equality Network Ireland (TENI), including workplace guidelines to inform unions and LGBT workers about their rights at work as well as an Introductory Guide to promote equality and help foster understanding of gender identity and trans experiences in the workplace.
- Section 37 of the Employment Equality Act contains an exception allowing any institution with a religious ethos (e.g. hospitals, social services, schools, etc.) to give preference to employees based on their religion and permits them to take “reasonably necessary” actions to prevent an employee or a perspective employee from undermining the religious ethos of the institution. This has led to concerns that this leaves the door open to all these institutions to directly discriminate against LGBT individuals. The Minister of Education, addressing the annual conference of the Teachers’ Union of Ireland, said that he would develop a Code of Practice to address the issue as he believed the best approach to deal with the legislation was to seek to change attitudes. Delegates at the conference expressed their support for a change in the legislation.
Equality and non-discrimination
Ireland was reviewed during the UN Universal Periodic Review process in 2011 and the fi nal report of the review will be adopted in 2012. Ireland received recommendations to deepen the reform of the law on marriage of same-sex partners and to change the concept of traditional family as enshrined in the Constitution.
- In the General Election all political parties committed to further progress for same-sex couples and rainbow families, with some parties advocating marriage for same-sex couples.
- The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 took eff ect on 1 January giving civil partners similar rights, protections and obligations to those of married couples, including in pensions, shared home protection, immigration, next of kin, inheritance, residential tenancies, maintenance and domestic violence. The Equality Legislation was also updated to extend protections to civil partners in the provision of goods and services and in employment. The Cohabitation Scheme in the Act aff ords some legal protection to both same and different-sex cohabitants.
- As of 1 January, for the purposes of immigration, the Irish Naturalisation and Immigration Service (INIS) treats same-sex couples in a civil partnership the same as married couples and de facto same-sex couples the same as unmarried diff erent-sex couples.
- The Finance (No. 3) Act 2011 updated the tax codes to treat civil partners equally to diff erent-sex married couples and treats children of parents in a civil partnership as children in a different-sex marriage for tax purposes. While the vast majority of rights have been granted through this Act, there are minor anomalies in the tax codes which the government has guaranteed will be dealt with in future finance bills.
- Civil partnership legislation came in force in April and over 550 civil partnerships took place across every county in Ireland by the end of the year. These were met with widespread public acceptance, support and celebration, including very positive coverage in national and regional media. People from 29 countries entered civil partnerships in Ireland.
- Whilst the LGBT community welcomed the law, the legislation has also been criticised for a number of gaps, including failing to properly address the needs of dependent children, a point made by the Ombudsman for Children. The Programme for Government (2011-2016) made commitments to address any omissions in civil partnership in particular those in relation to children. The Law Reform Commission published recommendations which include extending guardianship, custody and access to civil partners, which were under consideration by the government at the end of 2011.
- Under the Civil Partnership Act a list of relationships from 27 diff erent foreign jurisdictions are recognised as equivalent to civil partnerships in Ireland; this list also includes marriages from other jurisdictions. In December, the Government updated this list to include new marriage equality legislation of same-sex couples and civil partnerships abroad, including marriage equality of same-sex couples in New York.
- All political parties and successive Attorneys General have stated that a Constitutional Referendum would be required in order to open up marriage to same-sex couples. However, a case remains pending before the Supreme Court to address the constitutional position relating to the marriage of same-sex couples. The case involves a lesbian couple who were married in Canada in 2003 but were refused recognition of their marriage in Ireland.
- Though civil partnerships for same-sex couples exist in Ireland, they were not explicitly included in the 2011 Census (as the Civil Partnership Bill had not yet been passed by Parliament when the Census forms were being designed), and there were no questions which included or acknowledged trans or intersex individuals. The question of ‘sex’ was limited to male or female.
The Irish Association of Social Workers (IASW), in collaboration with GLEN, published a new guide of best practices for social workers working with LGB people. The Visible Lives study of the needs and experiences of older LGBT people, commissioned by GLEN, was launched by the Minister for Equality. The Health Service Executive established a high-level LGBT Health Advisory Committee to develop an LGBT strategy for the national health service. This Advisory Committee also established a working group to identify care pathways for trans people.
Legal gender recognition
- A trans woman from an EU country (other than Ireland) was granted permission to enter into a civil partnership with her female partner in Ireland. As the Civil Partnership Act requires that civil partners be legally of the same sex, the registration ceremony amounts to legal recognition in Ireland of the woman’s acquired gender, which is fully recognised in her own country. An Irish citizen in the same position could not enter a civil partnership as Irish law does not provide for legal gender recognition of trans people.
- The Government published a report by the Gender Recognition Advisory Group (GRAG) and whilst the publication was welcomed, it was criticised for not meeting the standards of the Council of Europe Commissioner for Human Rights’ recommendations regarding legal gender recognition.
- There was still no draft legislation on gender recognition, four years after the High Court decided in favour of a trans woman who fought to have her gender legally recognised by amending her birth certifi cate.
Participation in public/political life
- Every political party included a commitment to rights of LGBT people in its election manifesto, and the new Programme for Government contained further commitments to the LGBT community. Katherine Zappone, a known lesbian and gay rights human rights defender was appointed to the Senate, and two openly gay men were elected to the Irish Parliament.
- Openly gay Senator David Norris, who previously successfully challenged the criminalisation of consenting sexual acts between adult men in the European Court of Human Rights (Application no. 10581/83), stood as an Independent in the Presidential Election. He received 6.2% of the fi rst preference votes, placing him 5th out of seven first round candidates.
A 2011 poll by Irish Independent/Millward Brown Lansdowne (Ireland’s largest selling daily newspaper and a leading market research company) reported that more than 60% of voters believe marriage for same-sex couples should be allowed in Ireland, while only 27% of voters oppose such legal recognition.