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.

LGBT rights in the Republic of Ireland
Template:Map caption Template:Map caption
Same-sex sexual activity legal?	Legal since 1993, with an equal age of consent
Gender identity/expression	Transsexual persons not allowed to change legal gender after sex reassignment surgery
Recognition of relationships	No recognition of same-sex couples
Restrictions:	Civil Registration Act 2004 limits marriage to man/woman
Adoption	No joint adoption by same-sex couples
Military service	Gays and lesbians allowed to serve openly
Discrimination protections	Sexual orientation protections (see below)

Lesbian, gay, bisexual, and transgender (LGBT) persons in the Republic of Ireland 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 lesbian, gay, bisexual, transgender rights in the Republic of Ireland has expanded greatly over the past two decades. Homosexuality was decriminalised in 1993, and discrimination based on sexual orientation is now outlawed. The Republic of Ireland also forbids incitement to hatred based on sexual orientation.

Former laws against homosexuality

Homosexuality 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 current and former President 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Law (Amendment) Act, both enacted by the Parliament of the United Kingdom before Irish independence, and having been repealed in the UK in 1967.

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, 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 Irish parliament (Oireachtas) 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.

Gender identity/expression

Sex changes are not legally recognised by Ireland.. There is at present a case being taken by Lydia Foy to have her changed sex legally recognised. On 19 October 2007 Dr. Foy won her case in the High Court to get a new birth certificate recording her as having been born female.

The Government indicated in April 2008 that the state was appealing the Lydia Foy case to the Supreme Court. The State has since dropped its appeal and may introduce legislation in the future.

Recognition of same-sex relationships

Marriage in Ireland is currently regulated by the Civil Registration Act 2004. 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. 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 to consider the issues in light of the Goodwin decision 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 Civil Partnerships Bill (2008) was presented to the Cabinet on 24 June 2009. It is expected to complete the parliamentary process by mid 2010 at the latest.

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.

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 July 16, 2007, Taoiseach Bertie Ahern said that "we will legislate for Civil Partnerships at the earliest possible date in the lifetime of this Government." Following a cabinet meeting on 30 October 2007, the government said it would introduce legislation by the end of March 2008 and expects 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.

A survey carried out in 2008, showed that 84% of Irish people supported civil marriage or civil partnerships for same-sex couples, with 58% (up from 51%) supporting full marriage rights in registry offices. The number who believe same-sex couples should only be allowed to have civil partnerships fell in the same period, from 33% to 26%. Other surveys suggest that there is even stronger support for same-sex couple being allowed to marry.

Northern Ireland, which is part of the United Kingdom, was the first part of the UK to recognise same-sex civil partnerships on 19 December 2005, with Scotland following on 20 December and England on the day after that.

Former Justice Minister Brian Lenihan described it as one of the most important pieces of social legislation in the history of the country.

Lenihan said that the bill would deal with pension rights, maintenance and powers of attorney.

Under the bill, he said, same-sex couples would be allowed to register their relationships. The Civil Partnership Bill was published on the 26th of June 2009. and was debated on the 3rd of December 2009.

Currently the Labour Party, the Green Party, Sinn Fein, the Socialist Party, and Ógra Fianna Fáil (Fianna Fáil's youth wing) all support the right of marriage for same-sex couples.

Adoption and family planning

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.

Discrimination protections

Discrimination on the basis of sexual orientation is outlawed by the Employment Equality Act, 1998 and the Equal Status Act, 2000. 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 outlaws incitement to hatred based on sexual orientation.

Blood donation issues

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 table

Homosexuality legal	Since 1993, See Norris v. Ireland
Equal age of consent	since the Criminal Law (Sexual Offences) Act 1993
Anti-discrimination laws in employment	Employment Equality Acts, 1998 and 2004
Anti-discrimination laws in the provision of goods and services	Equal Status Acts, 2000 and 2004
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech)	Prohibition of Incitement to Hatred Act, 1989
Recognition of same-sex couples	(Expected to be provided by the Civil Partnership Bill 2009)
Adoption by single gays
Adoption by same-sex couples
Fostering by same-sex couples
Homosexuals allowed to serve in the military
Right to change legal gender	A case was taken by Dr Lydia Foy to have her new gender recognised - she won this case in the High Court in 2007 but the State appealed the decision to the Supreme Court. The State has since dropped the appeal
Access to IVF for lesbians	Under the Equal Status Acts 2000 and 2004, lesbian couples may not be discriminated against in the provision of IVF services, except where the service has a religious ethos that precludes such services. In practice, however, services are few and mostly limited to the private sector
MSMs allowed to donate blood

See also

• Campaign for Homosexual Law Reform (Ireland)
• Non-gender specific definition of Family in the Constitution, Bunreacht na hÉireann, An Teaghlach, Airteagal 41.3.1°), from Wiktionary.

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

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