As you know, Ireland has been elected by the international community to the United Nations Human Rights Council, and, from January 2013, will actively participate in the Council’s human-rights work.
This election strongly endorses our commitment to promoting and protecting human rights and the rule of law at home and abroad. It also adds force and weight to the State’s statements and actions in this field. The State takes –and must take – very seriously the responsibilities that come with this role.
The point of departure and the aspired-to destination for the struggle of lesbian, gay, bisexual and transgender persons against discrimination is equal citizenship, pure and simple. Ireland has made advances, both legislatively and socially, towards equality for LGBT persons in the 19 years since the Oireachtas voted to decriminalise consensual gay sexual activity. Securing and protecting the human rights of people irrespective of their sexual orientation should be a central objective of any civilised democratic state in the 21st Century.
Provision for Civil Partnerships contained in the cumbersomely named Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 was an important achievement. I also recognise that provision for same-sex marriage in Ireland is a core aspiration together with the full recognition of such marriages where effected abroad. The question of whether the Constitution of Ireland should or needs to be amended to provide for same-sex marriage is one of the matters referred by the Government this year for deliberation by the Constitutional Convention. The Taoiseach has given a formal commitment to the Oireachtas that the Government will give a public response, through the Oireachtas, to each recommendation from the Convention within four months of a recommendation being made. The deliberations and recommendation of the Constitutional Convention are central to any action that may be taken by Government and to an informed wider public consideration of this crucially important issue.
I am concerned about the impact that section 37 of the Employment Equality Act has on LGBT persons. This section is designed to allow schools and other institutions to maintain their religious ethos. It was examined by the Supreme Court in 1996 when the Employment Equality Bill of 1996 was referred to it under Article 26 of the Constitution. The Supreme Court found that it is a reasonable balancing in legislation of the different rights involved, including chiefly the right to earn a living and the rights to freedom of religion and association. I am concerned that the balance in practice is not a fair one and that in practice this provision can operate in a way that is unfair to LGBT persons. I begin from the unequivocal conviction is that it is simply wrong to exclude people from employment or other opportunities in life on the ground of sexual orientation or gender identity. And more specifically, it is unjust that people whose wages are paid by the taxpayer and who are employed to provide essential public services, like education or healthcare services, should feel oppressed or feel a need to live their lives in secret for fear that their sexual orientation should lead to victimisation by an employer.
In my view, we should assess the feasibility of an approach to amending legislation on the following lines. Section 37(1) could remain unchanged in respect of wholly autonomous religious institutions. But for educational and medical institutions, we might provide that
· first, more favourable treatment on the religion ground (37(1)(a) for the purposes of this section cannot be based on a person's characteristics under one of the other grounds;
· second, reasonable action to prevent an employee or prospective employee from undermining the religious ethos of the institution (section 37(1)(b)) may only be taken where an employee actively undermines or seeks to undermine, or where there is a reasonable belief based on demonstrable evidence that a prospective employee would so undermine or seek to undermine, the religious ethos of the institution concerned; and
· third, the section would be without prejudice to a person's constitutional right to privacy or freedom of expression;
The crucial thing would be to ensure that the power of the institutions to differentiate between employees or prospective employees should only apply where there is a real danger for the institution based on evidence. This might include:
· if the person acts with the conscious purpose of directly undermining the employer’s core religious beliefs or dogma , or
· if it is a genuine and demonstrably necessary occupational requirement of the employer that the employee act in a way consistent with the employer’s religious beliefs.
The provision might specify the specific considerations that must be weighed in arriving at this determination, including, for example, whether the employer’s action is rationally and strictly related to the employer’s core beliefs or dogma. One might also balance
· the consequences for the person, in particular in relation to his or her rights to dignity, equality, self-determination, self-expression, social life, and privacy; and
· the consequences for the employer should the distinction be allowed or not.
These are my current ideas on how reform might be approached. I am open to opinions on how to refine these ideas. I will ask the new Irish Human Rights and Equality Commission as a priority to examine this issue. The Commission will make recommendations following consultation with all interested parties. I am committed to bringing forward Government proposals for any necessary anti-discrimination amendment to this provision once this consultation process is completed.
The Programme for Government contains a commitment to reform and modernisation of our family law. One of the great gaps in the Act of 2010 was the failure to specifically address issues relating to parental rights of gay couples and the legal relationship of gay parents to children being parented by them in circumstances in which the parents are parties to a civil partnership or individuals cohabiting in an intimate and committed relationship. I am acutely aware that we need to reform family law to secure equal citizenship for lesbian and gay parents and the best interests of their children. This reforming focus must also ensure that children in lesbian or gay family units are able to form a legal connection with their non-biological parent and that kindred relationships flow from such legal connection. Reforms are also needed in the areas of guardianship, custody and access, and to ensure maintenance and inheritance rights for the children of civil partners. If we are to address these matters comprehensively, we must take account of developments that have occurred in the area of assisted human reproduction that have, for too long, been ignored in our family law legislation. There is a need to provide clarity and legal certainty in relation to the parent/child relationship, and all that flows from it, in the context of children conceived as a result of assisted reproduction or born to a surrogate. There is a need to bring our laws in this area into the 21st Century and to ensure that they reflect the welcome new provisions now contained in Article 42A of the Constitution with regards to the rights of the child and ensuring that in this area the best interests of the child are the paramount consideration. It is not in the best interests of either parents or children that we deny the reality of the complexity of the diverse family relationships that factually exist in the Ireland of 2012. With a view to comprehensively addressing this area of the law, I am presently engaged in the preparation of a Family Relationships and Childrens Bill which I expect will be published next year and, I hope, enacted before the end of the year by the Houses of the Oireachtas.
On the issue of safety, I say that the State has an obligation to respect the objective equal value and dignity of every citizen regardless of sexual orientation. Having a stake as an equal in your community must mean - without a shadow of doubt - being able to walk safely on the streets while holding the hand of your partner. I realise that real progress has been made in policing with the establishment of Liaison Officers to the LGBT community. I accept that there is more work to be done in mainstreaming equality issues in this important field.
The Government has taken a strong stance on violations of the rights of LGBT persons both in Ireland and internationally. This is a position which we will develop during our membership of the UN Human Rights Council. The Government is concerned about developments in Uganda over the past months involving legislative proposals to further erode the human rights of LGBT persons. The proposals jeopardise the very right to life of LGBT persons. The Government has made known its concerns at the highest level with the Ugandan administration and the situation is being monitored closely. The fact that Uganda is a member of the United Nations Human Rights Council to which we have now been elected is a particular irony in the circumstances. I am unequivocal that if legislation of the type proposed is passed by any State, the consequences to that State should include withdrawal of Irish Government aid. Countries that receive our aid should, at the minimum, aspire to and progress towards proper human-rights and equality standards. And Ireland will continue to support measures for the protection of Human Rights Defenders at EU and international level and in our bilateral engagements with other countries.
Finally, we take on the Presidency of the EU as from 1st January. We have a range of priorities in the Justice and Home Affairs and in the Social Policy areas. I want to mention just two today.
First, I note with interest Commissioner Reding’s intention to bring forward proposals for a ‘justice scoreboard’ to evaluate the rule of law in EU Member States. Our Presidency will support the concept of a scoreboard on justice, rule of law, democracy and fundamental rights. Such an instrument, if crafted and negotiated with due proportion and sensitivity, has the potential to reinforce the highest rule-of-law standards across the Union. We think that the potential of the initiative will have to be realised on the basis of a consensus among Member States and that this would be a positive achievement for the EU in terms of enhanced governance and standard setting. The scope of this initiative needs to be broad enough to ensure that it is not seen as directed at any individual member states; we all have room for improvement.
Second, I note the work that has been undertaken by the European Parliament in relation to a roadmap on equality for LGBT persons. Officials from my Department’s Diversity and Equality Law Division met with representatives of the International Lesbian and Gay Association (ILGA) Europe in October, on the occasion of their annual conference which was held this year in Dublin. ILGA outlined their views on the value of an EU roadmap for equality for LGBT persons, and asked us to consider this proposal during the Irish Presidency. While this proposal is arising quite late in the planning of priorities for our Presidency, I know that the issue has also been raised with the Commission. We will wait to see what Commissioner Reding proposes and will support an initiative on these lines if it is tabled during our Presidency.
We can work together to achieve the fundamentals of equal citizenship. Every act of reform we make sends out a ripple of hope, and, as the late Senator Robert Kennedy said, ripples of hope can build a current that sweeps in the equality and justice that is every human person’s birthright.
20 November 2012