Out on the Inside

We are delighted to welcome this guest post from Deirdre Malone, Director of the Irish Penal Reform Trust. The Trust recently launched a report on the experiences of LGBT people in prison in Ireland. 

IPRT

On 22 May 2015 I stood in the yard of Dublin Castle with my own brand new husband and watched the whooping victory of equality over discrimination. As happy newlyweds ourselves, we felt the profound importance of the occasion deeply. We saw Ireland shedding her old identity, becoming something new and brave and proud. On that day, victory felt swift and definitive. In reality it was the culmination of a decade of tenacious work and thousands of brave conversations. It was a challenge to a social system that once felt monolithic, intractable and inevitable. It represented a final blow of years of steady chipping at the hard crust of institutionalized inequality. But I wondered, were LGBT people in prison celebrating too on that day? Would they feel safe to do so?

While for those who work in the NGO sector, 22nd May 2015 was a jolting, joyful reminder that monumental change is indeed possible, the 33rd Amendment did not mark the end of homophobia, harassment or discrimination of LGBT people. That is doubly true for lesbian, gay, bisexual and transgender people who are in prison. LGBT prisoners form a “twice marginalized” population, falling outside of the ‘mainstream’ of LGBT community organizing and support services but also hidden and largely overlooked in terms of current prison policy.

International research reveals that homophobia is often amplified in male prisons as a result of a culture of “hyper-masculinity” and the traditional hierarchical structure which prevails. Transgender prisoners, particularly women, face disproportionately high instances and severity of violence and discrimination, both in and out of prison. They are not easily accommodated within the strict male/female structure of most prisons and may also experience violence and voyeurism in the context of prison showers or toilets – a particular concern in Ireland where 45% of prisoners are still required to use the toilet in the presence of another.

LGBT prisoners are also particularly at risk of experiences of discrimination, violence, sexual coercion and verbal harassment. Putting up a front, threatening or even engaging in violence in order to avoid being a victim of abuse is seen as something necessary within the prison environment

Of course, issues of homophobia, transphobia and the wider culture of heteronormativity also affect LGBT prison staff who also have experiences of homophobia, including being the targets of abuse by prisoners. The Irish Prison Service currently participates in the GLEN Diversity Champions programme through the ‘Inside Out’ network for LGBT prison staff but to date there has been no research or policy response addressing the specific needs and experiences of LGBT prisoners.

General good practice measures for safer prisons such as single cell accommodation as standard would help. It is common in many jurisdictions for “at risk prisoners” and LGBT prisoners especially, to be placed in protective custody to safeguard them from victimisation. However in practice conditions in protective segregation are often identical to conditions for prisoners placed in segregation for disciplinary reasons thus breaching fundamental rights principles. This can lead to longer term issues including mental health difficulties caused by the effects of isolation and more limited access to services. It is vital therefore that violent cultures and opportunities for abuse are targeted through the education of prison populations, training of staff, and effective independent complaints procedures. Further research is also needed in the areas of sexual health and behaviours in prison, the experiences of young LGBT people in prison and on the issue of sexual violence and coercion and their prevalence within the prison context.

For many years now, the Irish Penal Reform Trust have been examining and listening to the experiences of diverse vulnerable groups in prison, including Travellers, women, children and young people, and immigration detainees. The recent passage of the Irish Human Rights and Equality Commission Act 2014 sets out the positive duties of public bodies to eliminate discrimination, promote equality and protect human rights, and should act as a catalyst to address this area which has been neglected to date. We also hope that the result of the recent same-sex marriage referendum and the passage of the Gender Recognition Act 2015 will provide further impetus for reform to ensure that no LGBT person, wherever they might be, is left behind.

All of this must be understood in the wider context of overuse of imprisonment generally, and the ineffectiveness of the idea of retribution in challenging the conditions which are at the root of most punished crime – poverty, unemployment, homelessness, mental illness, addiction, desperation. The reality is that prison warehouses human misery, and by doing so, compounds it. It takes courage to challenge the status quo, but in every generation it is those that do who will also see the rewards of that courage. A challenge to the overuse of prison would lead to a more progressive, more effective, more humane, evidence-led criminal justice system – something which ultimately benefits us all.

Deirdre Malone is Executive Director of the Irish Penal Reform Trust www.iprt.ie

The IPRT report “Out on the Inside” was launched on 2 February 2016 at Wood Quay Venue, Dublin on 2 February 2016. It is available to download here

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Out on the Inside

What did SCOTUS decide in Windsor (the DOMA case) and what does it mean for us?

Today the US Supreme Court handed down United States v Windsor, the DOMA case. This concerned Edith Windsor (left; hearing the news (photo from the New Yorker)) who married her long-time partner Thea Spyer in Ontario, Canada in 2007 and whose Canadian marriage was recognised by the state of New York so that, in state law, they were a lawfully married couple. Not so, however, in federal law where DOMA—the Defence of Marriage Act—provided in s.3 that, when reading all federal laws, “marriage means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife”. When Thea Spyer died Edith Windsor did not, therefore, benefit from federal tax exemptions normally enjoyed by bereaved spouses and had to pay over $300,000 in inheritance tax. In essence, she sought a tax refund on the basis that DOMA was unconstitutional. In a split court (5-4; Kennedy J writing for the majority) the Supreme Court agreed that DOMA was, indeed, unconstitutional. There are lots of interesting things about Windsor particularly from a procedural perspective (the Department of Justice declined to defend the constitutionality of the Act, which then fell to an intervening party) and these are dealt with in p.p. 5-13 of the slip opinion; I will not go into them here. The remainder of the relatively short opinion deals head on with the question of constitutionality. In it, the Court finds DOMA unconstitutional on the basis of the 5th Amendment’s Due Process Clause as sharpened by the Equal Protection Clause of the 14th Amendment…all couched in a lot of language about states’ rights.

Unconstitutionality

As a general matter the regulation of civil marriage is a matter for individual states and not a matter for federal law. Of course, a number of federal laws relate to marriage in some ways—most particularly perhaps around federal benefits, immigration and so on—but the federal government does not define marriage as a general state of affairs. States do that, so that marriage definitions can (and do) differ from state to state. The sovereignty-related reasons why this is a state matter are not particularly complex in reality; they relate to the individual states’ capacities to regulate numerous matters such as inheritance, medical decision making, property ownership and so on (see esp. p.p. 17-20 of slip opinion for more). Based on all of this, one would expect that the Court might go down the simple route of states’ rights and invalidate DOMA on this very straightforward and, it seems to me, clearly correct application of a basic federal principle. However, the Court instead decided on a due process and equal protection basis.

In essence, the argument was that DOMA was a provision motivated by animus and mala fides, designed to deprive people of a status that states have conferred upon them and to “impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States” (p. 21). Here states’ rights are in some senses constructed as being mechanisms of conferring or recognising the dignity of same-sex spouses, in the same way as the general capacity to define marriage is seen not merely as a matter of practicality and governmental organisation but also as a means of recognition. When Congress rid those couples of that recognition at the federal level but treated their opposite-sex married neighbours whose marriages had precisely the same basis in municipal law as spouses by means of DOMA it contravened their constitutional rights, and not merely the rights of states (which seem to me to be implicitly recognised as having been violated here also). Thus, DOMA is unconstitutional.

What does this mean for us?

Of course Windsor has arguably limited significance outside of the US context because so much of the reasoning is constructed within a states’ rights framework. However, I do not believe this makes it insignificant. The recognition within the judgment that defining marriage is not merely a matter of practical arrangement by law-makers but also a matter of recognition—echoing Loving v Virginia, of course—is an essential element to the argument for marriage equality. Pragmatic arguments about benefits and practical inequalities and basic unfairness are, of course, made often and made well in the context of marriage equality advocacy and they are important; but they are only part of the story. Marriage equality matters, even for people who do not want to get married, because it is a matter of core, dignitarian recognition. Kennedy’s judgment acknowledges that, especially in its closing pages, and that is an elemental part of achieving equality in this field.

Related to this, marriage inequality is, resultantly, a denial of recognition. Where marriage inequality is deliberately imposed as it was in DOMA (introduced as states began to contemplate introducing same sex marriage) that is not merely a denial but a stripping of recognition. It strikes me that the Court wanted to make this a matter of due process and equal protection, and not a matter of states’ rights, because it was concerned to make that principle clear. That principle is not uniquely applicable in a states’ rights or federal context; it is generally applicable. I can imagine, for example, its deployment in Ireland where—one could argue—same-sex couples had a marriage right until that was stripped by the Civil Registration Act 2004 (introducing a same-sex marriage ban expressly for the first time in Ireland). For those of us who support marriage equality—and certainly for me—this elemental question of recognition is what makes this a human rights issue far more than the pragmatic and practical matters. It is why it matters that I can only ‘civilly partner’ and not marry the person I love; it is what causes marriage inequality to result in diminishment, even when a quite good alternative legal status exists. Today, in my view, SCOTUS went a long way towards recognising this, and that may well turn out to be the Windsor legacy.

What did SCOTUS decide in Windsor (the DOMA case) and what does it mean for us?

CPCROCA 2010: de Londras on Civil Partnership and (Marriage) Inequality

In this contribution to our blog carnival on the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, regular HRinI contributor Fiona de Londras considers the implications and burdens of introducing civil partnership without liberalising civil marriage.

It goes without saying that the Civil Partnership and Certain Rights and Obligations Act 2010 is, in itself, a significant if not monumental piece of legislation for a country that only decriminalised male homosexual sex in 1993. However, even in the midst of the celebrations that rightly accompanied the passing and signing of the Act, it is appropriate to take pause and think about the implications and burdens of introducing a system of civil partnership without opening marriage up to same-sex couples.

One of the main objections to the failure to recognise same-sex relationships in Irish law was not only that it excluded people from a range of rights and obligations that attach to marriage (most of which are now attached to civil partnership), but also that recognising opposite-sex relationships without recognising same-sex partnerships constituted an inequality. In other words, it sent out a value-laden message from the State about what kinds of intimate adult connections are and are not worthy of recognition by the State. It is important to recognise that the introduction of civil partnership does not remove this inequality—it may lessen it somewhat; it may set in train a sequence of events in which it is eventually neutralised; but it does not remove it. Rather it constitutes the enshrinement of inequality in law without, in my view, the State properly having discharged the burden of proving that such inequality is justified. Continue reading “CPCROCA 2010: de Londras on Civil Partnership and (Marriage) Inequality”

CPCROCA 2010: de Londras on Civil Partnership and (Marriage) Inequality

Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010

This morning the President of Ireland, Mary McAleese (left) signed the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (text as passed by the Oireachtas) into law. Once commenced, the Act will introduce civil partnerships that are to be available to same-sex couples only as well as an opt-out system of cohabitant protection and obligations. There remain a number of difficult questions around the Act including whether it institutionalises inequality between same-sex and opposite-sex families, whether the cohabitation provisions are an undue interference on privacy etc… many of which will be addressed here on HRinI in a blog carnival we intend to host next week. For today, however, the focus is more appropriately on congratulating all those whose hard work is reflected in the Act, in spite of its imperfections. It is to be hoped that it will be commenced as soon as possible.

Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010

The De Facto Same Sex Family and Irish Law

The recent European Court of Human Rights (ECtHR) judgment in Schalk and Kopf v. Austria has been much commented upon in the last while (see here, here, here and here). In Schalk, the ECtHR found that there was no violation of Article 8 or Article 12 (alone or in conjunction with Article 14 of the European Convention on Human Rights) where a state did not provide for same-sex civil marriage.  However, the point of this post is to examine the decision of the ECtHR for the possible impact this may have on the concept of de facto family in Irish law, particularly as applying to same-sex couples. Continue reading “The De Facto Same Sex Family and Irish Law”

The De Facto Same Sex Family and Irish Law

LGBT Pride: 2009-2010 in Review

This weekend the streets of Dublin will be filled with the 2010 L(esbian) G(ay) B(isexual) T(ransgender) Q(ueer) Pride parade—the culmination of weeks of cultural and other celebrations for Dublin Pride 2010. Indeed, all summer long there will be Pride festivals and parades in towns and cities all over the country: Cork, Waterford, Limerick and Sligo being the largest. In this post I want to reflect on the year in LGBT rights in Ireland and a little on Pride itself.

2010 has not been a terrible year from an LGBT rights perspective. There have been three very significant developments, all of which we have considered in some depth here on HRinI. The first is the continued passage of the Civil Partnership Bill 2009 through the Oireachtas. This Bill will create a new legal status of civil partnership, available only to same-sex couples, and carrying with it many (although not all) of the same rights and obligations as marriage. It will also allow for some default obligations and protections in cases of both opposite-sex and same-sex cohabitation where there is neither a marriage nor a civil partnership. Although the Civil Partnership Bill 2009 will not, when introduced, answer the calls for substantive equality between families based on an opposite-sex couple and families based on a same-sex couple, it will go some way towards answering the immediate and real needs of same-sex couples and in that sense is quite significant. Continue reading “LGBT Pride: 2009-2010 in Review”

LGBT Pride: 2009-2010 in Review

StandUp: LGBT Awareness Week

This week is LGBT Awareness Week, during which–among other things–BelongTo, a fantastic organisation for LGBT youth, are running their StandUp campaign. According to their website, the campaign “is aimed at creating positive understanding of lesbian, gay, bisexual and transgender young people and their issues”.

Awareness of the needs of younger LGBT people in our schools, universities, sports clubs and society in general is vital to ensuring full flourishing. Being young and being gay, bisexual, trans or intersex is not a whole lot of fun for many people, particularly before they go to university and discover lots of other people “like” them. If you work somewhere with younger people, why not print out one of the posters or logos and put it in your office space or on your door. Show the young people in your environment that you support them and their friends and colleagues who are not LGBT that they should support them too. Even if there are not many younger people in your work place, put the poster up. The likelihood is that one of your colleagues or friends has an LGBT child, relative or friend. Supporting their children supports them. If you are a parent, this might be an opportune time to ask the principle or teachers in your child’s school about their policies on homophobic bullying and diversity within the school and express your support for ensuring a safe educational space for all young people.

Stand Up and support your LGBT friends and colleagues.

StandUp: LGBT Awareness Week

Combating Hate Crimes Perpetrated Against LGBT Persons and Persons with Disabilities

The Commencement Order for the Offences (Aggravation by Prejudice) (Scotland) Act 2009 was issued last week bringing the Act into force.  The legislation creates new statutory offences that protect victims who are attacked on the basis of their disability, sexual orientation or transgender identity in Scotland.   Specifically section 1 of the Act makes provision for offences aggravated by prejudice relating to disability (or presumed disability).  Section 2 of the Act makes provision for offences aggravated by prejudice relating to sexual orientation (or presumed sexual orientation) or transgender (or presumed transgender) identity.  Under the Act where it is proven that an offence was motivated by malice or ill will towards a victim on the basis of their identity the court is required to take that motivation into consideration when determining the sentence to be imposed.   This legislation builds upon Scottish law on hate crimes carried out on the basis of race and religion or belief under the Crime and Disorder Act 1998 and the Criminal Justice (Scotland) Act 2003.  Similar legislation is in force in England and Wales.

Continue reading “Combating Hate Crimes Perpetrated Against LGBT Persons and Persons with Disabilities”

Combating Hate Crimes Perpetrated Against LGBT Persons and Persons with Disabilities

Update on the Civil Partnership Bill 2009

The progress of the Civil Partnership Bill 2009 through the Oireachtas continues and today’s Irish Times contains two pieces on the cohabitation provisions of the Bill. As we have documented here and here the cohabitation provisions (i.e. for cohabiting couples who are neither married nor in civil partnerships) attempt to establish a kind of safety net. However, they apply only to ‘qualifying cohabitants’ and there is a serious fear—articulated in the Irish Times by Professor John Mee of UCC—that non-qualifying cohabitants will assume themselves protected when in fact no such protection exists.

Continue reading “Update on the Civil Partnership Bill 2009”

Update on the Civil Partnership Bill 2009

Irish Aid, Malawi and Gay Rights

In 2007 Irish Aid—the international aid branch of the Department of Foreign Affairs—establish bilateral aid programmes with Malawi. This action was a follow-up to the commitment in the White Paper on Irish Aid to establish more partner countries in the African continent. At the moment, the programmes are conducted by means of the funding of Irish NGOs working in Malawi. Slightly out-of-date information on the Malawi programme is available here. Of course, Irish Aid has important agreements with a number of countries in Africa and carries out very valuable work in partnership with NGOs and governmental agencies, but reading this news story this morning brought Malawi to mind.

The story concerns a same-sex couple that was arrested following the first public (and, of course, symbolic as opposed to legally binding) same-sex wedding in the country. Today they were refused bail while the police investigation proceeded. If they are tried and prosecuted for homosexuality and sodomy—both of which are offences in Malawi—the couple could be sentenced to up to 14 years in jail. Notwithstanding the fact that homosexuality is a crime in Malawi, it is perhaps a little surprising to see this action being progressed by the police and courts as the government of Malawi, as part of its attempts to tackle HIV/AIDs in the country, has at times encouraged gay people to come out. Continue reading “Irish Aid, Malawi and Gay Rights”

Irish Aid, Malawi and Gay Rights