“Romeo and Juliet”: Gender discrimination law challenge rejected

The High Court has today rejected a challenge to the Criminal Law (Sexual Offences) Act, 2006 which was based on a claim of gender discrimination. The case involved a young man, now aged 18, who had sexual intercourse with a girl of 14 when he himself was 15.

The legislation in question provides for the offences of “defilement of a child under 15 years of age” (s. 2) and “defilement of a child under 17 years of age” (s. 3). Under both of these provisions it is an offence to engage in a sexual act with a child under the relevant age. However, s. 5 of the 2006 Act states that

A female child under the age of 17 years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse.

The claim before  the High Court was that the 2006 Act involved old-fashioned gender discrimination, which had no legitimate justification.

BNP Constitution is Unlawful

The British Nationalist Party’s new rules on admission to the party were held to be unlawful in a case before Judge Collins in the Central London County Court today.

The BNP voted on 14 Feburary 2010 to amend the 11th ‘edition’ of their constitution to permit ‘non-white’ members of the public to join the party. However, all prospective members would be required to adhere to the BNP manifesto. The new edition of the constitution has not been made publicly available but was sent to the Equality and Human Rights Commission (EHRC) for consideration. Today’s court judgment arises from an action brought by the EHRC on foot of its analysis of the new document. The BNP webpage for the 11th edition contains the following proviso:

This Constitution, the 11th edition, ceased to operate on 14th February 2010, when an Extraordinary General Meeting of the BNP, following on from an in principle decision taken by the Voting Members at last autumn’s Annual Conference, voted by an overwhelming majority to adopt a new version 12.1. The new Constitution, while building on the now defunct one, is massively expanded and far fit for purpose. It will be published shortly after the court hearing with the Equalities Commission on March 9th.

The EHRC action was taken on the basis of section 1B of the Race Relations Act 1976 (as amended). The judgment comes as the Government has announced that there will be no ban on members of the BNP serving as teachers in schools.

Should the Civil Partnership Bill 2009 contain a ‘conscience clause’?

In the continued second stage debate on the Civil Partnership Bill 2009 which took place in Dáil Éireann yesterday the matter of so-called ‘conscience clauses’ arose with a number of Deputies suggesting that the Bill ought to include such a clause to allow people whose ‘conscience’ indicated that homosexuality or civil partnerships were a moral wrong to refuse to engage in the creation of such civil partnerships. This proposal, which did not gain purchase in the Dáil to any great extent, brings a number of questions to my mind that I want to briefly address here. In the main the debate concentrated on the public servants and registrars, but previously noises were made about private service and goods providers as well (marvellously covered by Suzy Byrne here and here) so I will briefly address that matter below.

Should ‘conscience clauses’ exist within equality legislation?

The first question is one of principle. If a piece of legislation is introduced with the purpose of trying to create formal legal equality or in some way to reduce inequalities (and I think the Civil Partnership Bill can be firmly placed in that latter category) then ought such legislation contain any ‘get out’ clauses of this nature? One’s conscience, surely, is a private matter. Directing that registrars may not refuse to conduct a civil partnership ceremony on the basis of their own beliefs does not direct that those beliefs may no longer be held; it simply precludes someone from using those beliefs as a reason to refuse to carry out a state function. The registrar, as a private citizen, may hold and profess whatever moral positions s/he wishes but as a public servant s/he is required to carry out public functions. This separation of the private individual and the professional is a normal requirement of professional life; there seems to me to be no basis for changing that in the context of this Bill. If the Oireachtas has, through legislation, decided to take equalising/decreasing-inequality measures then it seems nonsensical for such a clause to be included as, through such clauses, agents of the state would be enabled to act in a manner squarely in contrast with the policy and legislative objectives of the State. At the very least this sends unwelcome mixed messages from the State to those affected. It also does nothing to minimise the likelihood that same-sex couples would come into contact with behaviours of the state that are perceived as being homophobic. It therefore has the capacity both to undermine the State’s objectives and to give rise to feelings of humiliation and grievance in gay and bisexual people’s interactions with the State.  

16 Days: Day 17 – Violence Against Transgender People

Over the past two and a half weeks, this blog has marked the 16 Days of Activism Against Gender Based Violence event by highlighting many of the campaigns and issues touching on violence against women. The focus of these posts has been on violence against women as this is the theme of this year’s event. However, a notable exception to this discussion has been the issue of violence against transgender people.

Transphobia encompasses not just the revulsion and irrational fears of transgender and transsexual people, but also includes cross dressers, feminine men, and masculine women. Therefore, it covers complex issues of gender roles and gender identities.

Transgender people are often denied legal recognition in their preferred gender identity. Such is the legal situation in Ireland, as has been discussed on this blog here and here. Yet, the prejudices and injustices experienced by transgender people are not limited to the lack of legal recognition.

Violence, based on their gendered status, is regularly experienced by many transgender people. November 20^th last, marked the 11^th Annual International Transgender Day of Remembrance, which commemorates the fact that every day, all over the world, thousands of trans people are excluded, persecuted, hated, mistreated, subjected to aggression and routinely murdered or driven to suicide because of the transphobia of others.

Recently, the Transgender Equality Network Ireland published an excellent report ‘Transphobia in Ireland’. We want to draw readers’ attention to this much needed research.

Thornton on Budget 2010: Human Rights and Equality Infrastructure

With the massive cuts in Budget 2009 for the Irish Human Rights Commission and the Equality Authority, both bodies have maintained their much reduced budgets for 2010. The Office of the Children’s Ombudsman has also maintained its 2009 Budget.

Danielle and Fergal have discussed the impact of the budget on children’s rights here, while Vicky has commented upon the increases and cutbacks in the criminal legal aid scheme and criminal justice here. Eilonoir has noted the increases and cutbacks for those with disabilities here.

I will concentrate on the other areas within the broad human rights and equality infrastructure in this post.

Civil Partnership Bill Second Stage Debate Highlights

December 3  saw the second stage debate on the Civil Partnership Bill 2009, which will establish new schemes for the legal recognition of co-habiting couples and same-sex civil partnerships.  The Bill, in Minister Dermot Ahern’s words:

creates for the first time in Irish law a scheme under which a same sex couple can formally declare their allegiance to each other, register their partnership under new provisions in the Civil Registration Act 2004, commit themselves to a range of duties and responsibilities and at the same time be subject under new law to a series of protections in the course of their partnership in the event of a failure of either party to maintain the other and in the event of disputes between them as to ownership of property.

Such a couple will have additional protections in the event of violence between them in their home and new rights to succeed to the property of each other are also being established. In the event of a dissolution of the partnership, there will be considerable protections in place for a dependent partner, where necessary, by way of power to the court to order maintenance, to order financial relief by way of lump sum payment, to redistribute the ownership of property between them and to provide for transfer of rights between them under any pension scheme of which either is a member. Where a person dies after dissolution of a civil partnership, the court may order provision from the estate of the deceased for his or her surviving former partner…

…The Bill will substantially change the legal landscape for same-sex couples. As well as dealing with many vital and pressing legal difficulties experienced by same-sex couples, including maintenance, pension provision, protection of tenancies, their shared home and succession, it will also address very practical matters for same-sex partners. The Bill ensures they will be always entitled to visit if one is hospitalised, can be treated as next-of-kin and on the death of a partner are entitled to notify the death and arrange the funeral. Gay and lesbian organisations deal daily with problems about which most of us never have to think but which routinely arise for gay couples or a surviving partner. These can range from the inability to access State benefits like the carer’s allowance to care for a seriously ill partner, to a man’s additional grief that his partner is recorded on his death certificate as being single, an official denial of thirty years of life together….

…

[The Bill will also] provide protection in the law to long-term cohabiting couples and a safety net for an economically dependent cohabitant at the end of the relationship on break-up or on death.

On break-up, a financially dependent cohabitant may apply to court for maintenance from the other cohabitant, possibly for a pension adjustment order or a property adjustment order. If the relationship ends on death, a dependent cohabitant may apply to court for provision from the estate of the deceased if, as often happens, no provision is made for the surviving cohabitant. The courts will have a substantial discretion in considering such applications.

The Bill recognises the right and capacity of couples to freely choose the legal form their personal relationships will take and the legal consequences of this choice. Some couples will prefer to opt out of the redress scheme. We should respect their autonomy to choose not to regulate their relationships. The Bill addresses this by providing for the legal recognition of cohabitants’ agreements made by couples regulating their joint property or financial affairs. At the same time, it is important to achieve a balance between interfering in personal autonomy and protecting vulnerable persons. The Bill strikes that balance by providing that the courts in exceptional circumstances can vary or set aside a cohabitants’ agreement where its enforcement would cause serious injustice.

You can read our previous coverage of the Bill here. Although the Bill will have serious implications for tax and social welfare, these reforms will be part of separate future Bills.

Traveller Focus 2009

November 30th marks the start of Traveller Focus 2009. The aim of Traveller Focus is to ‘celebrate the contribution Travellers make both within their own communities and to Irish society as a whole, through their culture, enterprise, sporting excellence, professional expertise across every area and unique history and tradition.’

The Supreme Court, Equality, Golfing and ‘Need’

UPDATE: The full text of the judgment (4 opinions) is now available here. (h/t Vicky Conway)

The Irish Times reports today that  the Supreme Court has held that Portmarnock Golf Club is not a “discriminating” club under the Equal Status Act. Women are permitted to play at Portmarnock but may not become full members. By a majority of three to two, the Supreme Court upheld a 2005 High Court decision (Equality Authority v. Portmarnock Golf Club & Ors [2005] IEHC 235 (10 June 2005) that the club, while refusing to admit women as members, is not a “discriminating” club under the Act because it fell within exemption provisions in Section 9 of the Act. Section 9 provides that a club “shall not be considered to be a discriminating club…if its principal purpose is to cater only for the needs of persons of a particular gender..\[or] it refuses membership to other members”. There is an account of some of the argument in the Supreme Court here. The Times reports quotes from the judgments of Denham and Hardiman JJ (pictured at left)

The authority argued the club is a discriminatory club under the Act on grounds its “principal purpose” is to play golf, not to cater only for the “needs” of men. The club contended its principal purpose was to cater only for the golfing needs of men.

In his judgment allowing the appeal, Mr Justice Hardiman said the club argued it was a gentlemen’s golf club, a golf club for gentlemen. The authority said that could not be so within Section 9 because, in the authority’s view, the club provided facilities for the game of golf which was not a “need” of men.

The ordinary, natural and literal meaning of the word “needs” is that set out in the Oxford English Dictionary and it was broad enough to embrace social, cultural and sporting needs as well as more basic needs for things such as air, food and water, the judge said.

In his view, the authority’s construction of the term needs was “a narrow, outdated and unnatural one”.

Dissenting, Ms Justice Denham said she was of the view the principal purpose of Portmarnock golf club was golf and that it catered for the needs of men and women, not just men.

A spokesman for the Equality Authority said the authority welcomed the fact that the Supreme Court had now clarified the law and said the Oireachtas could now examine whether or not the Equal Status Act needed to be amended. Joanna McMinn of the Equality Rights Alliance said the law needed to be changed and the decision was a bad day for equality and a bad day for women. Commentaryto follow when the judgment is published in full. Back at the time of the High Court decision, the Equality Authority were closer to the mark:

The Judgement maintains an unsatisfactory status quo. A significant institution in our society can continue to exclude women from membership. It can continue to set a standard that runs counter to any aspirations we might have as a society for greater equality between women and men. This is unsatisfactory in a context of significant and persistent inequalities experienced by women in a broad range of sectors. We still hope that Portmarnock might consider their options and change their membership rules so as to establish a new and more acceptable standard in regard to gender equality

Update 2:

• Mr. Justice Geoghegan latched on to one of the stranger aspects of this body of law. “He described as “extraordinary” the fact, where a club is found to be discriminatory, the only sanction that may be imposed on it under the Act is withdrawal of its drinks licence (if it has one). If it chose to lose its licence, a club could continue to forever discriminate without penalty… This “tiptoeing” by the drafters had created real problems of interpretation of the Act.” The link also covers Mr. Justice Hardiman’s sharp criticisms of the Equality Authority.

Update 3:

Lots of coverage in Wednesday’s papers:

• Carol Coulter in the Irish Times says that ‘the unmentioned elephant in the court-room was the undefined, but undoubted, social and business advantages conferred by membership of a historically exclusive club, whose exclusivity was maintained by yesterday’s judgment.’ The Equality and Rights Alliance make the same point.
• The members of Portmarnock golf club talk about ordinariness and common sense here
• The Times also gives a summary of the dissenting judgments here while the Examiner has a pithy quote from Denham J. : “Portmarnock Golf Club is exactly what its name says – a golf club in Portmarnock,” she said.

http://www.irishtimes.com/newspaper/ireland/2009/1104/1224258028551.html

Wedding Industry Fears Persecution by Equality Legislation?

Manufactured controversy has long been the coin of the realm at the Sunday Independent, a paper that last broke a proper news story around the time the Ballinspittle statues got their groove on. In a week where Dónal Og Cusack came out and Germany appointed a gay Foreign Minister, a reaction was probably inevitable. Dredging the unfathomable depths of the barrel of newsworthiness, it reported on Sunday from a meeting of the Fianna Fail parliamentary party which was attended by (wait for it) up to 20 TDs last week. Among the contributors was the inevitable and seemingly ubiquitous director of the Iona Institute, David Quinn. The Iona Institute is a non-governmental organisation dedicated to the strengthening of civil society through making the case for marriage and religious practice.

Equality and Human Rights on the Political Agenda

Now that the referendum to amend the Constitution in respect of the Lisbon Treaty has been passed by a 2/3 majority, domestic political attention can finally be focused elsewhere. Top of the agenda this week is surely the process of renegotiation of the Programme for Government between the Green Party and Fianna Fáil with a document submitted from Mary Harney who, of course, is now party-less following the demise of the Progressive Democrats. The Green Party has made it clear that equality and human rights and, particularly, securing budgets for organisations committed thereto is within their agenda for this week’s talks.

There is little doubt but that this process is being driven by the Green Party whose leader, John Gormley, has said that unless the revised programme for government is passed by a 2/3 majority of the Green Party at conference next weekend the party will be obliged to pull out of government, thereby most likely triggering a general election. (For commentary see this piece in the Sunday Tribune)