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

No automatic alt text available.

(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, organic or inevitable. It took a big push, great effort and sacrifice, from a lot of very brave people. What we take for granted now in terms of LGBT rights and legal protection was not inevitable; it had to be fought for, often incrementally.

While the law has improved considerably for LGBT people, there are still gaps in protection and provision and there are still social and financial vulnerabilities particularly for trans, intersex, and bisexual people. For transgender people, Ireland has some of the best laws in the world around gender recognition. For adults, legal recognition of one’s gender identity requires simply the completion and submission of a statutory declaration, with minimal additional conditions.[2]  Legal recognition, however, is unavailable to those under 16 and to non-binary people. Irish law still operates a rigid gender binary, though the recent Report of the Gender Recognition Act Review[3] offers some hope of change in this area.  The absence of provision for aggravated sentencing for hate crime in Irish law[4] is particularly acute in the case of transgender people, who experience disproportionately high levels of discrimination, abuse and violence. Our hate speech laws[5] cover sexual orientation but not gender identity or expression.

In practice, there are significant barriers also to transgender people accessing appropriate best practice healthcare.  Doctors and psychiatrists still act as gatekeepers, often operating a diagnostic approach (requiring referral to a mental health specialist and a diagnosis of gender dysphoria) instead of an informed consent model to access hormone treatments and surgical interventions. The ideal is that people who are transgender should be the key healthcare decision-makers, with full support and information from medical professionals.

While we have made huge steps forward in the recognition and protection of same-sex couples, there remain challenges in relation to legal recognition of parenting following donor assisted human reproduction. Parts 2 and 3 of the Children and Family Relationships Act have yet to be commenced (brought into operation), three years on (though we might see that this October).[6] This delay has had a knock-on effect for the children of same-sex couples where parents seek an Irish passport on behalf of the child based on a relationship with an Irish adult who is not the child’s biological parent. There are also problematic legacy issues for older same-sex couples in the area of pensions as illustrated by the Parris v TCD[7] litigation in the Court of Justice of the European Union.

On perhaps a more theoretical level, there remain some unanswered questions on how marriage law applies to same-sex couples. The heteronormative aspects of marriage law[8] have received comparatively little attention in the wake of the marriage referendum. Marriage laws, for instance, have been shaped with a traditional model of heterosexual family life in mind. In applying those marriage laws to same-sex couples, little thought has been devoted to whether those laws actually support and work to the benefit of LGBT families (or indeed to any modern family).

Outside the sphere of marriage, couples that cohabit have some legal protection,[9] but marriage remains highly privileged, at the expense of the growing number of non-marital unions. Notwithstanding the marriage referendum result, the Family as envisaged by Article 41 of the Constitution remains exclusively the family based on marriage alone. We see this preference for marriage in our tax laws and in relation to inheritance and citizenship laws that generally (with a few exceptions) reserve important legal entitlements to civil partners and spouses. Recognition for cohabitants applies in certain contexts (such as social welfare and domestic violence) but not in many others.

For LGBT individuals, social and financial challenges often remain. Arguably, there is inadequate attention at official levels to HIV prevention and a lack of urgency around rolling out PrEP. In a similar vein, while medical outcomes have improved dramatically since the 1990s, people with HIV are still stigmatized and silenced.

While conditions for LGBT people have undoubtedly improved in Ireland, we cannot and should not be blind to the precarious and often oppressive experience of LGBT people worldwide. The recent Supreme Court decision in India, declaring laws that criminalized consensual homosexual acts unconstitutional is a rare beacon of hope,[10] but it belies the unacceptable conditions for LGBT people in significant swathes of the world. Brutal crackdowns on LGBT people are a common feature of life in Indonesia, parts of Africa and Asia, the Middle East, and Russia (particularly Chechnya). For those who seeks to escape this appalling treatment, severe challenges remain. In this context, I should also highlight the very challenging position of LGBT asylum seekers in direct provision in Ireland, who are, in that context, vulnerable to abuse and discrimination, and often revictimised in the system that purports to offer them protection.

There is a challenge also in ensuring that the LGBTQ community maintains its critical, campaigning edge. I am not saying that if you are LGBT you have to be a radical leftist but…as a community that has experienced marginalization and stigma we cannot look away when those in the ascendancy unjustly treat vulnerable and marginalized communities and peoples. There is a significant risk that we (as LGBT people) become part of the problem, marginalizing vulnerable parts of our own community. We see, for instance, some lesbians and gay men seeking to undermine and exclude our trans brothers and sisters by denying and undermining their gender identity; we see racism within our community; we experience an often toxic culture of gay masculinity that breeds misogyny and fat-shaming, and that penalizes feminine gender expression among gay men. We risk becoming homonormative, assimilating into the dominant, mainstream, heterosexual culture, slotting into ‘acceptable’ white-picket fence identities, and implicitly marginalizing those who do not conform. We must remain alive to injustice, both inside and outside our community, and maintain solidarity with oppressed and marginalized people everywhere.

La luta continua – the struggle continues.

[1] The Prohibition of Incitement to Hatred Act 1989 prohibited public incitement to hatred on grounds including sexual orientation.  The Criminal Law (Sexual Offences) Act 1993 decriminalised consensual adult male homosexual acts, while the Unfair Dismissals (Amendment) Act 1993 made it explicitly unlawful to dismiss a person from employment based on sexual orientation. The mid-1990s also witnessed the first steps towards employment equality and equal status laws, and an acknowledgement of the right to seek asylum based on the prospect of persecution on grounds of sexual orientation.
[2] Gender Recognition Act 2015.  Adults aged 18 or over who meet certain residence or birth/adoption registration requirements simply fill out and return a statutory declaration to the Minister for Employment Affairs and Social Protection.  There are no preconditions relating to medical certification or approval, and no requirement to have undergone any surgery or treatment. For those aged 16 and 17, however, court approval (based in turn on medical and parental approval) is required before one may seek a Gender Recognition Certificate.
[4] While it is an offence to attack or threaten violence against any person, Irish law does not expressly require a motivation that is transphobic or homophobic to be taken into account as an aggravating factor in sentencing.  Though see the Criminal Justice (Aggravation by Prejudice) Bill 2016, a private member’s bill.
[5] Prohibition of Incitement to Hatred Act 1989.
[6] Same-sex couples who are spouses, civil partners and long-term cohabitants may now jointly adopt children.  Spouses, civil partners and long-term cohabiting partners of parents may also avail of second parent adoption. The Adoption (Amendment) Act 2017 made this possible.  The Children and Family Relationships Act 2015 (CFRA) allows a person to apply for guardianship of a child where they have shared parenting duties with the parent of the child, where the parent is the spouse, civil partner or long-term cohabitant of the applicant.  The 2015 Act also makes provision, in Parts 2 and 3, for a woman who gives birth to a child following donor assisted human reproduction treatment. In such a case, that woman is treated as the child’s mother (as is normally the case) but Parts 2 and 3 allows the mother’s spouse, civil partner or cohabitant to be considered a second parent (subject to certain conditions).  Parts 2 and 3, however, have yet to be brought into operation.  The Minister for Health has indicated commencement will take place in October 2018.
[7] CJEU, 24 November 2016. The Court found that a rule that required a member of a pension scheme to marry or enter into a civil partnership prior to reaching the age 60 in order to avail of full survivors’ benefits did not discriminate on grounds of age or sexual orientation and was thus valid under the Framework Directive on Employment. This was despite the fact that the applicant in this case could not marry or enter into a legally recognised civil partnership prior to reaching that age.
[8] Such as rules that define adultery and consummation as requiring an act of heterosexual sexual intercourse.
[9] Part 15 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.
[10] Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016 (Supreme Court of India):


Popular posts from this blog

Civil Partnership v Marriage? Some examples of remaining differences

9 things the marriage referendum isn't actually about