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