Rights in Exile Programme

Refugee Legal Aid Information for Lawyers Representing Refugees Globally

Ireland LGBTI Resources

(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)

 

International Law

As a member of the European Union since 1973, Ireland is subject to the Charter of Fundamental Rights and Freedoms. Article 21 of this stipulates that ‘any discrimination based on any ground such as sex … or sexual orientation shall be prohibited.’

Ireland must abide by the EU’s anti-discriminatory Directives and implement them via domestic legislation. Article 13 of the European Community Treaty focuses on forms of anti-discrimination which include sexual orientation. The Act Against Discrimination (Equality Directive 2000/78/EC) includes sexual orientation. Article 1 of the Directive states: ‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’ As a member of the EU, Ireland is bound by the Directive. Ireland implemented this Directive with Acts such as the Equality Status Act 2000 and the Employment Equality Act 1998.

Domestic Law

The 1937 Irish Constitution recognises the equality of Irish people before the law. Homosexuality was illegalised in Ireland until 1993 (See Norris v Ireland below). The Criminal Law (sexual offences) Act 1993 terminated the prohibition of same-sex sexual activity. Section 2 of the Act states: ‘Subject to sections 3 and 5 of this Act, any rule of law by virtue of which buggery between persons is an offence is hereby abolished.’ The act also included provisions for the equal age of consent (17) for both same-sex and opposite-sex couples and the ability for all to work in the armed forces.

Marriage in Ireland was governed by the Civil Registration Act 2004, which, prior to May 2015, invalidated same sex marriage (Interpretation (2) (e)). However, the Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015 has recently been passed with the Irish referendum that took place on 22nd May 2015. Ireland is now the first country in the world to bring in marriage equality by popular vote, rather than through parliamentary legislation.

Civil partnerships are recognised by the Republic, governed under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, which came into force in 2011.

Adoption by same-sex couples is now legal. The Government announced that a revised draft of the Children and Family Relationships Bill 2015 gives cohabitating couples and those in civil partnerships full adoption rights. The bill was passed by the Senate on 30 March 2015.

The Irish Refugee Act 1996 recognises applications based on a fear of persecution due to membership of ‘a particular social group’ (section 2) which specifically includes membership of a group of persons whose defining characteristic is their sex or sexual orientation (section 1).

Anti-discrimination laws include the Employment Equality Act 1998, as Section 6 (2) (d) prohibits discrimination on the grounds of sexual orientation. This is reinforced by s3(2)(d) of the Equality Status Act 2000 which explicitly recognises discrimination based on sexual orientation. The act states; ‘As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are: that they are of different sexual orientation’.

However, section 37 of the Employment Equality Act 1998 does allow religious organisations, medical institutions or educational institutions an exemption on employment grounds if it enables them to continue their religious ethos.

Northern Ireland only: The Gender Recognition Act 2004 enables transsexual people to align their UK birth certificates with their self-identified gender. The Act requires applicants to have lived in the acquired gender for two years before a certificate is issued. It makes no requirement for sex reassignment surgery to have taken place, although such surgery is accepted as supporting evidence. There is a significant difference to the proposed plans for transgender legislation in the Republic.

The Gender Recognition Act 2015 was passed in the Republic on 15th July 2015, and will come into force at the end of July 2015. It has been strongly criticised for enforcing a medical evaluation on those applying. It also obliges married applicants to divorce in order to obtain official gender recognition, pending the marriage referendum explained below. Legal gender recognition will not apply to individuals under the age of 16 years, while persons aged between 16 and 17 years will be subject to an onerous (probably impossible) four-part application procedure along with the prequisite of parental consent.

Domestic Jurisprudence

In the case of Foy v. An t-Ard Chláraitheoir & Ors, Dr Foy was a male-to-female transsexual and sought a finding that the existing legal regime infringed her constitutional rights to marry a biological man. In support of her claim, she relied on case law from the ECHR. McKechnie J noted that in Ireland it is crucial that parties to a marriage be of the opposite biological sex. The judge noted that Article 12 of the ECHR is equally predicated. Accordingly, he found that there was no sustainable basis for the applicant's submission that the law which prohibited her from marrying a party of the same biological sex as herself, was a violation of her constitutional right to marry. The judge concluded that the right to marry is not absolute and has to be evaluated in the context of several other rights, including the rights of society. Therefore, the state is entitled to hold the view which is espoused and evident from its laws.

The Irish Supreme Court returned Foy's case to the High Court in 2005 to consider the issues. Foy had also issued new proceedings in 2006 relying on a new ECHR Act, which gave greater effect to the European Convention on Human Rights in Irish law. The two cases were consolidated and were heard in April 2007. Dr Foy stressed the Goodwin decision where the European Court of Human Rights had found that the UK had breached the rights of a transgender woman, including her right to marry.

McKechnie J was very reproachful of the government in his judgment and asserted that, because there is no express provision in the Civil Registration Act, which was enacted after the Goodwin decision, it must be questioned as to whether the State deliberately refrained from adopting any remedial measures to address the ongoing problems. He emphasised that Ireland is very much isolated within the member states of the Council of Europe with regards to these matters. The judge concluded that by reason of the absence of any provision which would enable the acquired identity of Dr Foy to be legally recognised in this jurisdiction, the state is in breach of its positive obligations under Art 8 of the Convention. He issued a declaration that Irish law was incompatible with the ECHR and added that he would have found a breach of Dr Foy's right to marry as well if it had been relevant. From 1997 to 2013 Dr Foy was not granted legal recognition as a woman in the form of a birth certificate. Ireland will not be compatible with EU regulations until the Gender Recognition Act comes into force.

Hannon v First Direct Logistics Limited 2007 demonstrated the effectiveness of anti-discrimination within the workplace, as future employers will have to offer protection for the transgender community. As seen in Hannon, discrimination in the workplace on the basis of gender identity and/or sex is being addressed by institutions of justice. This does not however, extinguish the existing discrimination to the LGBTI community that remains in Ireland.

 

CASE LAW

In 1988 Norris took a case to the European Court of Human Rights to argue that Irish law was incompatible with the European Convention on Human Rights. The court, in the case of Norris v. Ireland, ruled that the criminalisation of male homosexuality in the Republic violated Article 8 of the Convention, which guarantees the right to privacy in personal affairs. In Norris the Court addressed “the detrimental effects which the very existence of legislative provisions in question can have on the life of a person of homosexual orientation.” This led to the acknowledgement that “the mere criminalisation is sufficient for the conclusion that the right to private life in Article 8 of the European Convention on Human Rights of a person to whom these laws might be applicable is violated.” This case was a catalyst to the change in Irish statute and the decriminalisation of homosexuality.

This progressive legislation, however, often does not cover the rights of asylum seekers who suffer legislative and public discrimination and criminalisation in other countries. The Irish Tribunal refused the appeal of a Pakistani lesbian woman stating: 'I accept that homosexuality in Pakistan is a criminal offence. However, it appears as if cases involving homosexuality are rarely prosecuted.' 

Due to the ruling in H.N. v The Minister for Justice, Equality and Reform Act in May 2014, new asylum applicants in Ireland will be considered for refugee status as well as subsidiary protection. The additional protection is examined if the applicant’s refugee status is rejected. The protection offered includes an interview and recommendation from ORAC, which could potentially lead to a fresh trial in the high court for asylum status.

In Z.K v The Refugee Appeals Tribunal & Ors, the high court quashed the tribunal’s decision to refuse status to a Georgian national. They reached the decision on the grounds that the tribunals’ focus had been on the applicant’s lack of knowledge and involvement of LGBTI organisations. The High Court emphasised the importance of giving a reasoned consideration to country of origin information in relation to whether or not a claim is corroborated by other sources in an objective or independent way. The High Court, therefore, granted leave to apply for judicial review and subsequently quashed the decision of the Tribunal.

In P.M v Refugee Appeals Tribunal & Ors, the High Court once again quashed the Tribunal’s decision to deny asylum to a Malawian national claiming asylum due to country of origin discrimination based on his sexual orientation. The High Court recognised the Tribunal had been selective in their reliance on country of origin information. The decision emphasises that applicants need not seek asylum in the first ‘safe’ country they pass through in order to be granted asylum, as the applicant had passed through Kenya, and the Netherlands before reaching Ireland.

The Tribunal has also been reported to have relied on country of origin information incorrectly in the case of a homosexual Pakistani man, where the Tribunal considered that the applicant had previously concealed his sexual orientation in Pakistan and he could do so again on his return, consequently finding that internal relocation was an option. In an Irish decision refusing the refugee appeal of a Nigerian gay man, the Tribunal stated: 'While it is accepted that state protection may not be available to homosexuals in Nigeria, internal relocation to avoid any possible threat would be an option.' The decision did not address the implications of this lack of state protection. Several other Irish Tribunal cases propose internal relocation as an alternative to seeking asylum.

In 2009, an Iranian man was raped and photographed. His application was refused by the Tribunal on the basis that the alleged pictures indicated he was not gay. The High court asked the Tribunal to reconsider.

Although not a prerequisite, medical submissions by transgender and intersex people seeking asylum in Ireland have been accepted by decision makers, as reports indicate. Eye witnesses and ‘attestations’ from LGBTI organisations are also accepted during the decision making process. There are cases reported that suggest that Irish Tribunals apply weight to ‘knowledge’, requiring the applicants to have LGBTI organisational links in order to add to his/her credibility.

 

PUBLIC ATTITUDES AND/OR STATE'S CAPACITY TO PROTECT

ILGA’s Rainbow Europe Map 2014 indicated that Ireland rated 34% rating for LGBTI rights against the benchmarks for LGBTI equality. However, Research in 2012 showed that 73% of voters believed same sex marriage should be allowed in the Irish constitution. 

In February 2015, the Irish government launched a resource in collaboration with Ireland’s Gay and Lesbian Equality Network in order to tackle homophobic bullying from a young age.

Despite the quantity of anti-discriminative provisions in Ireland, discrimination continues to exist. In February 2015, Roisin Prendergast and Ciara Murphy were the victims of a hate crime attack, directed against their sexual orientation.

Changing Attitudes Ireland has encouraged the Church of Ireland to accept LGBTI people. This is not without limitation. ILGA’s Rainbow Europe Map 2014 indicated that Ireland rated 34% rating for LGBTI rights against the benchmarks for LGBTI equality. This research may change with the passing of the referendum.

In 2012 TENI (Transgender Equality Network Ireland) created the landmark publication 'Touching the Surface: Trans Voices in Ireland'. The book represents more than forty contributors and reflects a broad range of ages and gender identities. The publication was launched in Dublin by the Deputy Lord Mayor, Cllr. Maria Parodi on 17 May 2012 as part of Dublin City Council’s Social Inclusion week and also marked the International Day Against Homophobia and Transphobia. The event drew over 150 people. There were also launches of the publication in Cork by Deputy Lord Mayor, Cllr. Tony Fitzgerald, Waterford by Mayor Jim Doherty and Derry in conjunction with Foyle Pride. The book was made possible through generous funding from LGBT Communities Fund from the Community Foundation for Ireland and the Social Inclusion Unit of Dublin City Council.

In 2012, TENI acted as local host for the Fourth European Transgender Council, which brought over 300 activists from across Europe and beyond to Dublin to share research, best practice and set the agenda for trans rights work. The event was nominated for a Gay and Lesbian Award (GALA) for Event of the Year 2012.

While Ireland’s rural areas mostly do not have an active LGBTI scene, the larger cities host some of the most popular occasions. Dublin hosts the LGBTQ Pride Festival, the International Dublin Gay Theatre Festival, as well as GAZE: Dublin International LGBT Film Festival, one of the most respected of its kind in the world.

 

NON-GOVERNMENTAL ORGANIZATIONS (NGOs)

We do not currently list any LGBTI NGOs in Ireland, but we welcome suggestions.

 

COUNTRY OF ORIGIN SPECIALISTS

We do not currently list a specialist on LGBTI issues in Ireland, but we welcome suggestions.

 

Researched by: Jessica Sweet

Email: jessicajanesweetatgmail [dot] com  

 

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