Kill Bills v 2 - Gay Rights in Ireland

Tuesday and Wednesday of this week saw members of Dáil Éireann discussing the Labour party’s proposed Civil Unions Bill 2006. (Information also available here.) Those evenings also saw the response from the government and other opposition parties.

- Read the transcript of the debate on Tuesday, 20th February 2007 here.
- Read the transcript of the debate on Wednesday, 21st February 2007 here.

I should begin by stating my own view clearly on the Bill itself.

The Civil Unions Bill is not marriage equality.

While the Bill may give same sex couples a broad range of marriage-like privileges, it does not confer equality of rights. Gay and lesbians are the only human beings for whom the right to marry is denied in Ireland.

This legislative proposal is to be welcomed, remembering all the while that the Civil Unions Bill is a step - a great step, but a step nonetheless - towards achieving full equality for same-sex relationships. (Personally, I favour the approach taken by FELGT in Spain [.doc].)

And so to the government’s response to this Bill.

On Tuesday, at the very last minute, just before Brendan Howlin was to introduce the Civil Unions Bill 2006, the government issued its “reasoned amendment”. (The full official response by An Tánaiste, Michael McDowell, including the government amendment, can be found here (ninth post down).)

The amendment stated that the government proposes to postpone the second reading of the Bill for six months. What this means is that, once the Dáil is dissolved with the general elections, the Bill will fall. “Not voting against the Bill” is utterly disingenuous and, frankly, insulting. As well the government knows, the effect of the so-called amendment is to kill this legislative proposal to recognise same-sex couples.

Government Amendment

Let’s look, then, at the reasons given by the government for this “amendment”.

Constitution

With some subtlety, the government introduces (as seems to be its consistent line) the assumption that Constitutional amendment is required. This assumption is flawed for two main reasons: this Bill deals only with same-sex relationships, and deals with them in the context of a non-marital scheme of recognition, that of civil unions. What is more, in fact – indeed, in law – the issue of marriage as defined in the constitution has not been defined by the courts. The Bill deals with same-sex couples who have no option to have their relationships legally recognised, in any way, marriage or otherwise. It is by no means established that the Consitution is an obstacle to legislating for same-sex marriage, let alone legislating for same-sex not-marriage.

The related spoiler argument that is tagged to this one is the “very unlikely to succeed” assumption, which is used to knock the idea of holding a(n unnecessary) referendum.

(As far as I’m aware Labour did get legal advice (although from who I don’t know), and that constitutional issues were said to be dealt with by the fact that the Bill is civil unions (like marriage, but not) and the civil unions are for same-sex couples only (no impact on opposite-sex couples, for whom marriage is an option).

I also understand that the Civil Unions Bill did consider the UK partnership legislation, and was seen to meet the equivalence provisions of the Good Friday Agreement.

Again, this is open to correction, as I’m not affiliated with Labour (or any other political party).)

Need for Reform and the Department of Justice, Equality and Law Reform “currently considering an approach”

We have heard all the wooly, hip-and-liberal-sounding noises from the government (and other parties) literally for years, and we have had reports coming out of our ears - par example - and yet we have seen nothing happen. All guff, and no action.

Nature of Relationships

The introduction of “all non-married couples” point distracts from the issue of same-sex couples (the issue of the Bill), who have no recourse to having their relationships legally recognised.

References to heterosexual, homosexual and “non-sexual” relationships does a number of things:

(a) Notwithstanding the fact that some may not wish to enter into marriage, cohabiting opposite-sex couples already have the option of availing of marriage;

(b) Introducing the issue of heterosexual relationships moves proposals for recognition of relationships on to even rockier Constitutional ground, by reason of the fact that opposite-sex couples - to whom marriage is already an option - could be said to be drawn away from marriage into these other forms of recognition; and

(c) Introducing the issue of non-sexual relationships shifts the debate, and reduces our relationships to something other than equal to heterosexual relationships, which are currently afforded recognition, status and protections. It implies that in fact no special status should be afforded to same-sex relationships: our relationships, unlike opposite-sex relationships have the same standing as McDowell’s beloved “bachelor farmers” or elderly siblings living together.

The government distracts from the central issue, and moves the discussion away from the issues that are the subject of the Civil Unions Bill - from that of same-sex relationships to that of “cohabiting couples” and “non-sexual relationships”.

Colley Report

Again, we see the discussion fudged and distracted in discussing “other” (lesser?) forms of recognition. It suggests to me that there is absolutely no intention on the government’s part of seeking to give full equality to same-sex relationships.

Not only that, but the government’s amendment contradicts its very own report - the Options Paper issued by Anne Colley’s Working Group on Domestic Partnership - which recommended full civil partnership for same-sex couples, as “a distinct institution”, providing equivalence with the Civil Partnership Act 2004 in Northern Ireland (and the UK).

Indeed, the Colley report informed the Labour party’s Bill, according to Brendan Howlin, speaking on Tuesday evening.

Zappone v Revenue Commissioners

To my mind, raising the Zappone case is another spoiler argument.

The plaintiffs’ claim is in relation to their Canadian marriage - it is not a civil union.

The legislature has the right to enact any legislation as it sees fit. There is a wonderful concept, known as “The Separation of Powers”. The judiciary - another arm of the separated powers - has the right to rule strike down any laws passed by the legislature which are found to be unconstiutional. Each of the separated powers is able to check the other. The purpose of the concept is to ensure this sort of balance. It’s almost zen-like.

Michael D. Higgins summed things up well, I think, on Wednesday:

“Dishonest arguments are being made. Last night, the Minister for Justice, Equality and Law Reform made reference to the Zappone-Gilligan case. He was asked to speak about the acceptance of what marriage is now, not what it should be or may be. It is an insult to you, Sir, and to me and to all of the others in the House to suggest that the Oireachtas, as the legislative arm, must wait until a Supreme Court decision is given.

“The Oireachtas is a separate arm, but in any case Article 26 of the Constitution gives a further right to the President if we pass something about which there is constitutional doubt to send it to the Supreme Court. The Minister was advocating something cowardly and something quite incremental. The choice in Deputy Howlin’s Bill is not a false choice between incrementalism that is deceitful or a confrontation with the Constitution on the definition of marriage. It is about civil union. If we have civil union in place, then we move on to all of the other areas.”

Indeed, judge Elizabeth Dunne, in her High Court ruling, suggested that the Oireachtas legislate. (And courts are happy to defer to the legislature, rather than be accused of legislating from the bench). Whatever the outcome of this legal challenge legislation will be required.

Moreover, let’s not forget that the State has elected to fight this case, and mount a strong defence against the plaintiff’s claims.

Legislation “to attract social consensus”

It is not the purpose of legislation to attract social consensus. It may be desirable, but it is not its purpose.

Nevertheless, late last year we were treated to the results of a GLEN/Landsdowne Research Market survey. It found that 84% of people favoured some form of legal recognition for same-sex relationships. Of the 84% who support legal recognition, the majority (51% of the population) support same-sex marriage.

Elaborating on these points

Moving on to the elaboration on these points in the speech by An Tánaiste and Minister for Justice, Equality and Law Reform:

Yessum, missah Tawnishtah, suh..

We were greeted with this kind of patronising and insulting rubbsh: “the government is unequivocally in favour of treating gay and lesbian people as fully equal citizens in our society”.

Excuse me? I am equal, and I certainly don’t need any government to tell me that they favour treating me that way: it is the violation of my equality that is the problem.

Similarly, we were subjected to condescending comments in relation to “gay activists” and Alan Turing (an interesting spin on Godwin’s Law).

That was preceded by (what must be now obligatory) a “tolerance” comment:

“A new tolerance has emerged based on our appreciation of the fact that homosexual people are in every respect entitled to be equally valued as members of society and not to be relegated to an inferior status.”

Was no-one aware, when writing this speech, of the inherent contradiction of that statement? To tolerate is to endure, bear, put-up-with. Someone can “tolerate” pain; someone can “tolerate” a bad smell; someone can “tolerate” an irritation. When we talk about tolerance, it is in this negative way. Therefore, I can only infer that homosexual people are begrudgingly viewed as having these entitlements, when in fact we are regarded as having (and actually have) inferior status.

How about (a) acceptance - now there’s a word - and (b) actions in the form of vindicating our rights?

How about that?

And finally, mention was made of funding for GLEN projects and BeLonG To. Was this an attempt at currying favour? I for one certainly won’t be bought off. I’ll take what I’m entitled to, including the likes of getting this government to support this country’s young LGBT people. Or, instead, was it a veiled threat?

Misleading as to equality “achievements”

Later in the Tánaiste’s speech, Michael McDowell lauded the current government’s “achievements” since 1997 in introducing equality legislation. He cited the Employment Equality Act 1998, the Equal Status Act 2000, amendments to health insurance legislation in 2001, extending force majeure leave to same-sex couples in 2006 legislation.

He neglected to include, however, the current government’s achievements in introducing discriminatory legislation:

• s.37 of the Employment Equality Act (EEA) - LGBT teachers’ jobs at risk in schools with a “religious ethos”;
• s.14 of the Equal Status Act (ESA) - discrimination placed in legislation cannot be challenged;
• s.19 of the Social Welfare (Miscellaneous Provisions) Act 2004 - inserts into statute discrimination against same-sex couples for a range of welfare provisions - see also s.14 ESA, above;
• s.39 of the Residential Tenancies Act 2004 - specifically discriminates against same-sex couples in terms of access to benefits - see also s.14 ESA, above;
• s.2 of the Civil Registration Act 2004 - “For the purposes of this Act there is an impediment to a marriage if both parties are of the same sex” - see also s.14 ESA, above.

[None of these include, by the way, other anti-equality provisions, such as those of the Equality Act 2004, amendeding the EEA and ESA, which impeded access to third level education grants to non-EU persons - an example would be a health worker, such as a nurse, who wishes to add to their qualifications by studying, while working, in Ireland.]

I would like to point out that s.19 of the 2004 social welfare legislation was introduced by the then Minister for Social and Family Affairs, Mary Coughlan, in response to a settlement by the Department in relation to free bus passes for older people and their partners (concerning a challenge under the Equal Status Act by a man and his male partner in relation to non-statutory guidlelines). Yet McDowell even had the gall to include this legislation in the list of achievements. In addition, last autumn we saw the insistence by the current Minister for Social and Family Affairs, Séamus Brennan, that a settlement by his Department in relation to the Adult Dependant Allowance (concerning a terminally ill man and his male partner) “does not set a precedent“.

Reference was also made to a “root and branch review of … schemes under the Department of Social and Family Affairs”. This, supposedly, has been under way for approximately three years now, and followed the Social Welfare (Miscellaneous Provisions) Act 2004. According to that Department’s press office at the time, the inclusion of the discriminatory s.19 of the Act was necessary before this review of its schemes could take place. Needless to say, I’m not convinced.

I don’t think any of us could - or should - be grateful for having some of our basic rights as citizens being vindicated by the likes of the Equal Status Acts, and at the same time being discriminated against in statutory provisions which violate other of our basic rights as citizens.

McDowell’s speech boasted of these “incremental improvements”, but I’m afraid they are simply not good enough. I won’t doff my cap or accept crumbs. In any event, he went on later to slate the Civil Unions Bill as “piecemeal”. The government seems happy to “express its commitment to full equality” as often as it likes (except when Michael McDowell states that inequality is good), but taking action to ensure full equality is sorely lacking. In fact, as we’ve seen, the government has been happy to act to discriminate, rather than to ensure equality.

Approach

The lack of uniform approach to recognising same-sex relationships is yet another spoiler argument: We can be innovative, like Belgium, Spain, South Africa were. If, however, we are (as so often) afraid of taking such steps, we can fall back on the Good Friday Agreement’s equivalence provisions, and give effect to mirroring their Civil Partnership Act. (Note that this does not mean we have to go through every aspect of law, running to hundreds of sections, as they did; we merely have to give effect to equivalence of rights. How novel..)

Moreover, despite relying on a “lack of uniform approach” in this area, this point is then followed by the insistence that “[i]n legislating in this area, each country is faced with its own unique set of complex political, legal and social circumstances”.

Is the government once again, wanting to have it both ways?

Conclusion

As stated earlier, Civil Unions are not marriage. The Civil Unions Bill is a step – a great step, but a step nonetheless – towards achieving full equality for same-sex couples.

But this week, we saw that even this issue of Civil Unions was rejected out of hand by the government. In fact, many of the points raised by the Tánaiste in his speech last night are the same points raised in 2005, in his speech to the Dublin Lesbian and Gay Film Festival - and they have been the same points over and over until, as we have seen, this week. This government, therefore, has not moved one iota on the issue of recognition for same-sex relationships in this country. The most they have done is to offer to us is crumbs with one hand, and to take them away with the other.

I don’t think there is anything sincere about the government’s approach to this issue as a whole - be it this Civil Unions Bill or anything else that’s been raised in the past 2-3 years.

The government stance is (yet again) non-committal, it’s stonewalling (no pun intended), and it’s careful vote-checking. It’s is not liberal, it’s not progressive, and it is most certainly not radical.