The future of the LGBTQ+ movement in Ireland three years after the Marriage Act

(Speaking notes: Trinity College Dublin Politics Society and Q Soc Panel Discussion, Robert Emmet Theatre, TCD, 18 September 2018)
It is important to open by acknowledging just how much legal and social progress the LGBT community has made in Ireland over the space of 30 years.I was a student here in Trinity in the mid-1990s. At that stage, social conditions as well as the legal landscape were already improving for LGB people.[1] Nonetheless, we really could not have envisaged at that time that, 20 years later, we would have marriage via referendum or a gender recognition law based on a self-determination model.Throughout the European continent too, there has been a sea-change in perspectives on LGBT people and rights, as reflected in European Court of Human Rights case law and in developments at EU level (such as the Framework Directive on Employment and Article 21 of the Charter of Fundamental Rights).
It is equally important, however, to remember that this progress was not effortless…

New Adoption laws signal significant shift in policy

The Adoption (Amendment) Act 2017 has come into force today (19 October) in Ireland.
The Act represents a significant shift in the policy underpinning adoption in Ireland. 
Originally, adoption was viewed as a way of providing marital families for non-marital children, 'rescuing them' from what was long considered the stigma of 'illegitimacy'. The 2017 Act signals a sea-change in this regard, allowing, as it does, the adoption of children born inside marriage, and allowing cohabiting couples to adopt jointly.
Who can adopt Prior to the 2017 Act, only married couples (including those of the same sex) could jointly adopt children. Unless the circumstances were extreme, children couldonly be adopted if they were orphans or born outside marriage.Previously, a child born inside marriage could only be adopted in cases of extreme abandonment or where both parents had died.
The Act also allowscivil partners and cohabitants to apply to adopt children jointly. Previously, only a marr…

New laws will ban payment for prostitution

While various activities associated with prostitution have long been illegal, the act of paying a person to engage in sexual activity had not been a crime in Ireland up until 27 March 2017.  In the past, prostitution was generally viewed as a legal problem only when it manifested itself in the public domain. Hence, the legal regulation of prostitution tended to focus on issues such as public solicitation, loitering for the purpose of prostitution, brothel-keeping, and the advertisement of prostitution. Up until relatively recently, what happened in the bedroom had generally beenregarded as legally irrelevant (provided all participants were of age and consented).
Payment for sex This has just changed with the passage of the Criminal Law (Sexual Offences) Act 2017. The Act has been passed by the Dáil and Seanad, and signed by the President. The provisions relating to prostitution have now been commenced with effect from 27 March 2017.  These new provisions make it an offence to pay, offer…

A modest proposal

For some years now, Northern Ireland has been debating the introduction of marriage for same-sex couples.Polls show strong support for such reform amongst the public.A majority in the Assembly now supports change but, due to the lack of sufficient cross community support in the chamber, equal marriage currently remains elusive.
England and Wales, Scotland, the Isle of Man, and the Republic of Ireland have all extended marriage to same sex couples. This may be a persuasive factor.  That said, the fact that ‘everyone else is doing it’ is not a compelling reason in itself to follow suit.  Northern Ireland must decide for itself.
While the prospect of same-sex couples marrying may seem radical to some, I suggest that it is in fact a relatively modest proposal.  Same-sex couples in Northern Ireland may already enter into civil partnership, and have been able to do so for 11 years now.  Civil partners enjoy virtually all of the same rights and obligations as married couples.  There are some l…

Confused about consummation?

The issue of consummation of marriage has arisen in the current debate around the marriage referendum. A great deal of confusion has arisen as a result. As such, some clarification of the law may be useful in analysing claims made in relation to consummation:

1. At the moment, a marriage is voidable if either party is unable to consummate the marriage, for either physical or psychological reasons. The inability may be general or relative to one's spouse only. That is, a person may be able to avoid a marriage because they were unable, at the time of the marriage and thereafter, to have sexual intercourse with their spouse, even if they go on to have sexual intercourse with a third party.

2. Until such time as a voidable marriage is avoided, the marriage remains valid. A voidable marriage is valid, but can be avoided by one of the parties to the marriage. If but only if one of the spouses avoids the marriage, the marriage is then deemed to be void with retrospective effect. In other …

On heterosexuals in same-sex marriage

The Referendum Commission has issued a statement, at the request of the Iona Institute, stating that it will be possible if the marriage referendum passes for two straight friends of the same sex to marry each other.  The question itself presupposes that this is not already possible for straight friends of the opposite sex. In fact a marriage between two friends of opposite sex is already legally possible. They can only annul if they are unable to consummate. Even if a refusal to consummate did also render marriage voidable, it is likely the parties would potentially lose the right to avoid if they agree in advance that their marriage will be sexless. Two straight men could marry in the same way if the referendum passes but (a) their marriage could be voidable on grounds of inability to form and sustain a normal and caring marital relationship with each other due to their sexual orientation (though again they could lose this right to avoid) and (b) why would they want to? Let us exa…

Should equal marriage be put in Article 40.1 instead of Article 41?

One of the issues that has arisen in the context of the marriage referendum is the precise part of the Constitution in which the proposed amendment should be placed. The proposal is that a new Article 41.4 be inserted into the article in the Constitution that deals with marriage and the family. Some on the no side argue that the amendment should have been placed in Article 40, which deals with personal rights and, in particular, in the subarticle dealing with equality (Article 40.1).

Let's contemplate what might happen if the proposed marriage amendment were to be included as part of the equality guarantee (let's say as an addendum to it, or as Article 40.1.2) rather than in the Family provisions.

Would many no voters vote yes if this referendum addressed Article 40.1 instead of Article 41?
Probably not. It is highly unlikely many committed no voters would change their minds if this were an amendment to Article 40.1 rather than Article 41.

What do the relevant provisions do?