http://caffeinatedthoughts.com/wp-content/uploads/2013/02/rainbow-flag.jpgThe last week or so has been significant from the perspective of LGBT rights in Ireland in respect of employment equality and marriage equality. In both areas legislative change to remove clear inequalities has been proposed over the past week and, in the case of marriage equality, the attention of the Constitutional Convention has been directed towards the matter. In this short post I want to outline the proposed legislative changes in both of these areas that have appeared over the past ten days or so. I also want to reflect on the prospects of success in both cases, which I consider to be rather low in the case of the marriage equality proposal but much higher as regards employment equality.We have written before on HRinI on the damaging and difficult effects of the exemption in the Employment Equality Act 1998 which permits institutions with a particular ethos to take that ethos into account in hiring and employment practices. One of the implications of this which has been particularly difficult is that religiously oriented schools (which in Ireland is an extremely important category of publically funded schools) are empowered to discriminate against people who identify as ‘not-straight’ on an ethos basis. Although Senator Averil Power proposed legislative change to this in the recent past, there had been very little concrete action since. However, last week the Labour Party introduced an amendment to the Act in the Employment Equality (Amendment) (No 2) Bill 2013. Once passed this Bill will greatly reduce the ‘ethos’-based employment-related discretion of religious organisations and this is a very welcome development.

As is well known, Irish marriage law currently prohibits marriage between people of the same birth sex under the terms of the Civil Registration Act 2004 (recalling of course that there is still no mechanism for having reassigned gender recognised on a birth certificate). Although an important strand in the public debate on marriage equality has been the claim that the Constitution does not permit it, the accuracy of this position cannot be verified in advance of a Supreme Court decision precisely on that point. It has long been the position of a number of academics (although not all) and activists, including myself and Eoin Daly here on HRinI, that the Constitution can accommodate same-sex marriage and that the appropriate approach would be to introduce and pass a very straightforward amendment to the Civil Registration Act 2004. Once passed, this provision could be sent by the President to the Supreme Court for anticipatory constitutional review under Article 26 (and in my view certainly would be) and the Court would then have the opportunity—quite quickly and without having wait in the normal process for Supreme Court adjudication—to make clear the boundaries of the Constitution. Yesterday the Labour Party finally proposed a piece of legislation that follows this extremely straightforward path towards acquiring a definitive interpretation of the Constitution on this point by proposing the Civil Registration (Marriage Equality) Bill 2013 (text can be downloaded here). Senator Ivana Bacik, who is one of the proposers, says on her website that this is part of Labour’s commitment to equality and its introduction is certainly welcomed by me and, I am sure, by other advocates of marriage equality, although as I discuss below I could not describe myself as wholly optimistic about its prospects for success.

There are two important observations about these two developments in LGBT rights. The first is that in both cases they are long overdue simple steps towards equality but with potential constitutional implications; Eoin has written about the implications of an amendment to the employment equality legislation and the constitutional implications of marriage equality amendments are obvious. They are, thus, not uncontroversial measures, not least within the coalition parties to the government (Fine Gael and Labour). Indeed, as I have observed here before, Fine Gael is to my knowledge now the only mainstream party that has not expressed support for marriage equality at official levels. However, in the case of employment equality one expects that this has agreed by the parties and will be passed to finally bring this employment inequality to an end, which is very welcome indeed. It is somewhat different in the case of the marriage equality proposal.

One would expect that a coalition partner would usually propose its legislative proposals by means of the core government legislative agenda, indicating a joint commitment to the proposals and a government plan to impose of a whip on the relevant vote. Introducing the marriage equality proposal through a somewhat circuitous route (through Labour members but not by the government per se) at the very least suggests that there is no governmental agreement on the matters in question and that the proposed change will not succeed in proceeding safely through the legislative stages. This is not to suggest that it is insignificant; the introduction of the Bill from a coalition partner might at least guarantee it some decent debating time and ministerial attention, and of course activists and the LGBT community would most likely welcome and appreciate the important semantic of support that the Bill communicates from its proposing party. However, one can quite easily imagine how the scenario will proceed; the Bill will be proposed, a debate featuring a painful mixture of (in)tolerance, equality, outrage (on both sides), stereotype, offensiveness and thinly veiled homophobia will grace our legislative chambers (and—it is important to note—most likely cause huge offence and hurt to people who identify as LGBT); the government will note that the matter is before the Constitutional Convention and kick it to touch until the deadline for response to the findings of the Convention arise (which will take us almost to the summer); claims of constitutional incompatibility will be made (notwithstanding that the Bill is clearly designed to offer the opportunity to test those claims); and the Bill will not proceed past early stages. Those of us who want to marry and continue to be excluded from this legal institution will remain so excluded and little will actually change.

This is not, again, to suggest that proposal of the Bill is unwelcome; quite the opposite is the case, in fact, in my view. Rather it is to draw attention to the significance of the fact that this Bill is not proposed by the government; it will draw attention to the matter, offer the opportunity to make public and express the contested nature of the claim of constitutional impossibility, and is extremely well timed (the Convention considers marriage equality early in April). It is difficult, however, to see how it might succeed at this point in time.

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Written by Fiona de Londras

Fiona de Londras is a Professor of Law in Durham University. Her third book, Detention in the War on Terrorism: Can Human Rights Fight Back?, was published by Cambridge University Press in 2011. She specialises in terrorism and counter-terrorism, human rights protection in Ireland and more generally, and international criminal law. You can contact Fiona at fiona.de-londras[@]durham.ac.uk