LGBT rights in the Republic of Ireland

Decriminalisation

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 male 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 male homosexuality, its founding members including Senator Norris and future Presidents of Ireland Mary McAleese and Mary Robinson. Prior to 1993 certain laws dating from the nineteenth century rendered male 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Law (Amendment) Act, both enacted by the Parliament of the United Kingdom before Irish independence, and having been repealed in England and Wales in 1967, Scotland in 1980 and Northern Ireland in 1982.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 Norris v. Attorney General 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 male homosexuality in the Republic violated Article 8 of the Convention, which guarantees the right to privacy in personal affairs. The Oireachtas (Irish parliament) decriminalised male 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 male 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 Supreme Court and European Court of Human Rights case.

Marriage

Same-sex marriage is legal in Ireland, following approval of a referendum on 22 May 2015 which amended the Constitution of Ireland to provide that marriage is recognised irrespective of the sex of the partners. The measure was signed into law by the President of Ireland as the Thirty-fourth Amendment of the Constitution of Ireland on 29 August 2015. The Marriage Act 2015, passed by the Oireachtas on 22 October 2015 and signed into law by the Presidential Commission on 29 October 2015, gave legislative effect to the amendment.

Same-sex marriage became legally recognised in Ireland on 16 November 2015 and the first marriage ceremonies of same-sex couples occurred on 17 November 2015.

Background to legalisation of 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. Foy had also issued new proceedings in 2006 relying on a new ECHR Act, which gave greater effect to the European Convention on Human Rights in Irish law. The two cases were consolidated and were heard in April 2007. Dr Foy stressed the Goodwin decision where the European Court of Human Rights had found that the UK had breached the rights of a transgender woman, including her right to marry. 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. He issued a declaration that Irish law was incompatible with the ECHR and added that he would have found a breach of Dr Foy's right to marry as well if it had been relevant.

Fine Gael, the Labour Party, Fianna Fáil, Sinn Féin, the Socialist Party, and the Green Party 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.

On 2 July 2013, the Constitutional Convention delivered the formal report to the Oireachtas, which had four months to respond.

Civil partnership

Prior to the legalisation of same-sex marriage, civil partnership was permitted. The Civil Partnerships Bill 2009 was presented to the Cabinet on 24 June 2009 and was published on 26 June 2009. Although most LGBT advocacy groups cautiously welcomed the Government's legislation, there had been criticisms of the proposals. One major criticism stated that the legislation effectively enshrined discrimination in law insofar as separate contractual arrangements with greater privileges continued 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 to couples with a Civil Partnership had been cited as particularly discriminatory.

The Bill passed all stages in Dáil Éireann on 1 July 2010 with cross-party support resulting in it passing without a vote, and passed by a margin of 48 votes to 4 in the Seanad (Senate) on 9 July 2010. It granted gay couples several rights then only granted to married couples, but did not recognise children raised by gay couples as being their children. Irish law only allowed gay people to adopt children as individuals, while allowing gay couples to jointly foster. It also granted 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.

The ability to enter into a civil partnership ended on 16 November 2015.

Marriage Equality referendum

On 5 November 2013, the government announced that a referendum to allow same-sex marriage would be held in the first half of 2015. On 19 February 2015, Taoiseach Enda Kenny announced that the Marriage Equality referendum would take place on Friday 22 May 2015. The referendum passed by large majority and adds the wording "Marriage may be contracted in accordance with law by two persons without distinction as to their sex" to the Irish constitution.

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.

The protections provided remain uneven. As pointed out at page 26 in Review, the Journal of the Public Service Executive Union, July/August 2014, Section 81E (5) of the Pensions Act 1990, as amended, prevents pensioners, who retired more than one year before the Civil Partnership Act, 2010, from challenging the refusal of a survivor's pension for their civil partner. The Government uses this section to block legal attempts by LGBT people to obtain pensions as recently as March 2015.

Despite the passage of the Marriage Equality Amendment the Labour Minister for Public Expenditure and Reform, Brendan Howlin, told the Dáil that he will not allow, for example, a gay man, who opted not to give a (meaningless) pension benefit to his wife in 1984, the right to opt to give a pension benefit to his husband in 2015 the first opportunity he could have done so. This would remain the case even if the gay man paid the same pension contributions as his heterosexual colleague. This decision was condemned in a leading article and opinion piece in the Irish Examiner on 24 June 2015 as being contrary to the spirt of the Marriage Referendum but remains government policy.

The Prohibition of Incitement to Hatred Act, 1989 outlaws incitement to hatred based on sexual orientation. The penalties for violating this law are sentenced up to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6 months or to both on the first offense, or on conviction on indictment, to a fine not exceeding £10,000 or to imprisonment for a term not exceeding 2 years or to both.

On 3 June 2015, the Government Cabinet debated the Employment Equality Amendment Bill 2015. The amendment (when passed) would remove the provision in the Employment Equality Act allowing religious run schools to dismiss Teachers and Staff who are LGBT. On 11 July 2015, the bill passed the Oireachtas lower house. On 9 August 2015, the bill passed the Oireachtas upper house. On 16 August 2015, under formality a signature from the President of Ireland. The legislation went into effect immediately.

Gender identity

On 19 October 2007 Dr. Lydia Foy won her case in the High Court which ruled that the failure to allow her to obtain a new birth certificate recording her gender as female was in breach of her rights under the ECHR. The Government appealed this decision but dropped its appeal in June 2010 and stated it would introduce legislation in the future. A new Government took office in February 2011 and following the report of an advisory committee in July 2011, the Minister responsible announced that the Government would introduce gender recognition legislation as soon as possible. No legislation had been introduced by February 2013 and Dr. Foy commenced new legal proceedings seeking to enforce the decision made by the High Court in 2007. In June 2014, a gender recognition bill was announced and in September 2014, the government stated that it will be published by the end of the year. The bill was introduced on 19 December 2014. On 15 July 2015 the Gender Recognition Bill 2015 with major amendments passed both houses of the Oireachtas and the President of Ireland Michael D. Higgins signed the bill into law on 22 July 2015. Ireland, Argentina, Denmark, Malta and Colombia have all removed medical criteria from the gender identity legal recognition process. This means there is no requirement for medical interventions or diagnosis of a mental disorder. The law came into effect on 8 September 2015.

Adoption and parenting

Irish adoption law allows for applications to adopt children by married couples or single applicants. The legalisation of same-sex marriage in Ireland, in conjunction with the passage of the Children and Family Relationships Act 2015, means that married same-sex couples are in law permitted to adopt, though will not likely be able to avail themselves of this option until May 2016, when all provisions of the Act are expected to be in effect.

A single gay person or one partner of a couple may apply and a same-sex couple may submit a joint application to foster children. Additionally, lesbian couples have access to IVF and assisted insemination treatment. In January 2014, Government Minister for Justice and Equality Alan Shatter announced that the government intends bringing in laws by the end of the year to extend guardianship, custody, and access rights to the non-biological parents of children in same-sex relationships and children born through surrogacy and sperm and egg donation.

On 21 January 2015, the Government announced that a revised draft of the Children and Family Relationships Bill would give cohabitating couples and those in civil partnerships full adoption rights. The bill was set to become law before the May same-sex marriage referendum. The Bill was published on 19 February 2015, ratified by both houses of the Oireachtas by 30 March 2015 and was signed into law on 6 April 2015. Key provisions of the Act (including spouses, step-parents, civil partners and cohabiting partners being able to apply to become guardians of a child) went into effect on 18 January 2016. Portions of the Act allowing for full adoption rights have not yet come into effect.

On 5 May 2016, James Reilly, then Minister for Children and Youth Affairs, announced that the Irish Government has approved the publication of the Adoption (Amendment) Bill 2016. The purpose of this bill is to amend the Adoption Act 2010 and give legislative effect to the Thirty-first Amendment of the Constitution of Ireland (the Children Referendum). The bill would allow two people regardless of marital status to adopt children, thus granting married same-sex couples the right to adopt. Since the bill has been published, it is only a matter of formalities before it becomes law.

Blood donations

The Irish Blood Transfusion Service (IBTS) has placed a life 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, Sinn Féin, Fine Gael and the Labour Party have been campaigning for this ban to be repealed, but were unsuccessful. Currently this is under review.

On 23 June 2016, the IBTS voted to recommend removing the life ban on donations from men who have ever had sex with men, favouring a one-year deferral period instead. The recommendation was sent to the Minister for Health for consideration and decision.

On 27 June 2016, Minister for Health Simon Harris announced that he was accepting the recommendation of the IBTS and that the life ban would be removed in favour of a one-year deferral instead.

In October 2016, it was announced that the lifetime blood ban would be replaced with a one-year deferral beginning on 16 January 2017.