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The more time I spend here on the Isle of Saints and Scholars, the more obvious it becomes that the Republic of Ireland has outgrown its image of being the epicentre of social conservatism. Monumental is the only word I can use to describe the changes Irish society has undergone during the last twenty years.
Consider the magnitude of these transformations: * Divorce in the Republic of Ireland was against the law less than five years ago in this predominantly Catholic nation. It was not legalised until November 24, 1995, through a public referendum (which was quite close: 50.3% in favor, 49.7% opposed). This change is particularly stunning when one considers that Irish citizens had chosen to keep divorce illegal in a 1986 referendum.
* In February 1992, a pregnant fourteen-year-old girl sued for the right to leave Ireland in order to obtain an abortion. In a widely publicised decision, the High Court of the Republic of Ireland declared that the girl, called X by the media, could not legally leave the island for such an operation. Today, although abortion is still illegal within Ireland itself, Irish citizens are free to leave the island in order to obtain one. Also, a High Court decision in May 1995 permits Irish health centers to provide information to patients on where they may obtain an abortion abroad.
Perhaps the most momentous of these recent social changes, however, has been the government’s complete about-face with respect to homosexual rights. Twenty years ago, homosexuality and sodomy were strictly illegal and punishable by incarceration in Ireland. At that time, the nation’s court system did little to punish violence against homosexuals. In 1983, for example, a group of thugs convicted for killing a man in Dublin whom they suspected was gay were given suspended sentences by the Irish courts and set free immediately after they were found guilty of the killing.
Since that time, the governments of both the Republic of Ireland and Northern Ireland have actually become more liberal than the United States in many respects of their treatment of homosexuals. Unlike the U.S., where a number of states still have anti-sodomy laws, homosexual acts between consenting adults have been legal within Northern Ireland since 1982 and the Republic of Ireland since 1993. Unlike American cities like New York and Boston, the homosexuals of the Republic may legally march in the parades held on St. Patrick’s Day.
Despite all of this, the Republic of Ireland has historically been, and continues to be, a bastion of traditional Catholic values. One need only examine the opening phrase of the Irish Constitution - “In the name of the Most Holy Trinity” – for a confirmation of this. Yet, how did a nation known for its social conservatism and allegiance to the Pope become so liberal in its treatment of homosexuals? Do gay rights exist in Northern Ireland? The answers lie in a series of courageous activists, fascinating court cases, and two important interventions by the EU Court of Human Rights.
The Partition: A Crash Course
The Republic of Ireland (usually referred to as simply ‘Ireland’) and Northern Ireland are in fact two separate political beings. How did this come to be? In a nutshell, the Easter Rising of 1916 in Dublin along with the effective guerrilla warfare led by Michael Collins brought Britain, which had ruled over Ireland for over 700 years, to the negotiating table. The subject of the talks was how to grant Ireland independence while maintaining British rule in the industrialised northern counties, whose factories were quite profitable and whose Protestants demanded to remain a part of England. After long negotiations, a group of British and Irish representatives agreed to accept the Anglo-Irish Treaty on December 6, 1921. This controversial document split the 32 counties of the island into two sections: 26 counties were granted sovereignty (the present day Republic of Ireland) while the remaining six counties (today known as Northern Ireland) remained part of the U.K. The bitter conflict amongst the Irish over whether the decision to accept the treaty was a mistake plunged the island into a savage civil war that resulted in the deaths of thousands of women and men (including Michael Collins). By 1922, the death of Collins coupled with such a massive loss of life resulted in an eventual end to the war. The Partition of the island’s 32 counties (26 in the sovereign Republic of Ireland, 6 in the Northern Ireland) still exists and continues to be the source of violence and political strife even today.
Differences in the demographics and histories of the two sections of the island are striking. Approximately sixty percent of Northern Ireland’s 2 million citizens are Protestant. The North’s cities were industrialised during the 19th century and were heavily bombed by the Nazis during World War II since the North was a member of the Allies. By contrast, roughly 85% of the Republic of Ireland’s five million people are Catholic. The Industrial Revolution skipped over the Republic’s fair cities as did the Nazi bombs, since Ireland remained neutral throughout the Second World War (despite their official neutrality, many of the Republic’s citizens enlisted and fought for the Allies anyway). Because of the Partition, homosexuals of this island (which is slightly smaller than Maine) have had their legal difficulties doubled.
The Legislation of Homosexuality in Northern Ireland:
Jeff Dudgeon v. the U.K.
Gay rights activist, scholar and prolific author Kieran Rose laments in his writings that, “It is a debilitating effect of Partition that gay men in a small island should have to undertake two separate law reform campaigns and take two cases to the European Court in order to establish their rights”. While homosexuality in Northern Ireland was decriminalised in 1982, homosexuals within the Republic of Ireland were forced to wait an additional 11 years for their right to express their sexuality.
In 1967, an act of Great Britain’s Parliament decriminalised homosexual acts that took place in strict privacy between consenting persons over the age of 21. This reform did not, however, transfer to Northern Ireland, even though it is subject to many of the laws issued by Great Britain. Thus, in 1976, it was legal for the members of Northern Ireland’s police force to arrive at the doorstep of Jeff Dudgeon, a 30-year-old shipping clerk residing in Belfast, and rigorously question the gay man regarding his sexuality. Dudgeon and other gay rights activists complained about this blatant harassment, and the following year the Northern Ireland Human Rights Commission recommended that the law be reformed. This greatly enraged the Reverend Dr. Ian Paisley, a prominent radical Protestant politician. Dr. Paisley quickly mounted a ‘Save Ulster from Sodomy’ campaign, to which gay activists responded with a ‘Save Sodomy from Ulster’ movement. Unfortunately, nothing came of the numerous efforts to motivate England’s Parliament to reform Northern Ireland’s anti-homosexuality law. The movement seemed to reach a dead end.
The European Union: the Next Step in the Process
Both Great Britain and Northern Ireland are members of the EU, so their laws are subject to review by the European Commission of Human Rights. If the Commission finds that a member nation’s law is repugnant to the European Convention on Human Rights, then it can recommend that the government strike down the law. Dudgeon’s legal team decided that the EU should hear the case and they appealed to the Commission for relief.
On Match 13, 1980, after hearing Dudgeon’s complaint, the Commission ruled that Northern Ireland’s laws prohibiting buggery violated an individual’s right to privacy guaranteed in Article 8 of the European Convention on Human Rights. Northern Ireland’s government quickly exercised its right to reject the Commission’s decision and appealed to the European Court of Human Rights, a court that has the authority to strike down the legislation of EU nations.
As the legal teams of both sides of the case prepared for their day in the Court, the unlikeliest of alliances emerged. The Catholic and Protestant Churches of Northern Ireland worked together in a tireless campaign to ensure that Dudgeon would not prevail. Despite the combined efforts of the two Churches, the Court in 1981 ruled 15-4 that the anti-sodomy laws of Northern Ireland did indeed violate the ‘right to privacy’ clause of Article 8 of the European Convention on Human Rights. This forced England’s Parliament to legalise homosexuality within Northern Ireland, which it finally did in October of 1982.
The Legislation of Homosexuality in the Republic of Ireland:
David Norris v. the Attorney General
Although homosexuality was decriminalised in Northern Ireland in 1982, it took an additional eleven years and another European Court of Human Rights decision for the Republic of Ireland to legalise sodomy. In the early 1980s, a gay English professor at Dublin’s Trinity College, David Norris, challenged both of the laws that criminalised sodomy. After hearing Norris’ case, Justice McWilliams of Ireland’s High Court proclaimed in his decision that sodomy should remain illegal, because, “Nature dictates that the purpose of reproduction is procreation.” (It should be noted that sodomy between heterosexuals also remained illegal because of this decision.)
Norris’ lawyers wasted no time in appealing to Ireland’s Supreme Court. Yet their efforts to decriminalise sodomy were not to be realised; on April 22nd, 1983, in a 3-2 decision, the Court upheld the constitutionality of both of Ireland’s anti-sodomy laws. Writing for the majority, former Chief Justice Higgins cited England’s 1957 study on homosexuality – known as the Wolfenden Commission Report – which determined that homosexuality is likely to “have damaging effects on the family.” That gave the former Chief Justice an opportunity to uphold Article 41 of the Irish Constitution, which “pledges [the State] itself to guard with special care the institution of Marriage, on which the family is founded, and to protect it against attack,” the Irish government must outlaw sodomy and anything else that is deemed destructive to family life.
Norris’ lawyer, Mary Robinson (who later became Ireland’s first female president), refused to admit defeat. Robinson made a successful appeal to the EU Commission on Human Rights, which promptly ruled in favor of Norris. Despite the recent Dudgeon case, the Irish government exercised its right to appeal to the European Court of Human Rights. The Court decided to strike down the Republic of Ireland’s anti-sodomy laws with a slim 8-6 margin. Because of the Court’s decision, EU law forced the Republic of Ireland to legalise homosexuality.
Sadly, it took the Oireachtas until 1993, more than four years after the Court’s decision, to pass a law that would decriminalise sodomy in Ireland’s 26 counties. In 1990, the Minister of Justice at the time, Mr. Ray Burke, issued a promise that “I assure the House that as early as I can within a year, a gay law reform Bill will be introduced.” This promise was repeatedly broken over the next few years, much to the chagrin of civil rights groups such as the Gay and Lesbian Equality Network (GLEN).
The Question of 'Institutions with a Religious Ethos:
Eileen Flynn v. Sister Mary Anna Power and the Sisters of the Holy Faith
When Ms. Eileen Flynn was a teacher at a Roman Catholic school in the Republic of Ireland in 1982, her school’s learned of an alleged affair with her and a married man. Livid parents blasted the school for employing a teacher who was clearly in violation of the Catholic principles she was supposed to emulate. After a series of enquiries, Flynn eventually admitted she was in fact having an affair with a married man and was pregnant with his child. She steadfastly refused to heed the school administration’s pleas to end the affair even after she gave birth to an illegitimate child on June 8, 1982. A few months later, on August 6, the school offered Flynn a choice: to resign and receive three months pay (which the school was under no obligation to provide) or to be fired.
After consulting with her lawyers for several days, Flynn refused to resign. The school consequently fired her on August 22 (though the school gave her three months pay anyway). Her lawyers brought the matter to the Employment Appeal Tribunal and argued that a school could not dismiss teachers for events in their private lives. Despite the best efforts of her legal team, Flynn lost the case and also lost subsequent appeals heard by both the Circuit and High Courts.
In 1985, the High Court argued that the private behaviour of Flynn, “…was capable of damaging [the nuns’] efforts to foster in their pupils…religious tenets the school had been established to promote.” The Flynn decision has legal ramifications for homosexuals since it allows medical, educational, and religious institutions with a religious ethos to discriminate against anyone deviating from the institution’s set of moral tenets. This issue arose again twelve years later, when, on May 15th, 1997, Ireland’s Supreme Court ruled that dismissals and selective hiring practices motivated by an institution’s religious ethos were in fact constitutional.
The Employment Equality Act of 1998
Despite the Norris victory, gays and lesbians soon discovered that equals rights legalisation did not entail an end to discrimination in the workplace. Thus, legislation resulting from the Flynn decision and Ireland’s Equal Pay and Equal Treatment laws of 1974 and 1977 did not apply to homosexuals and members of several other minority groups. This was unfortunate since the largest workers unions in Ireland had used both of these laws to protect their members from discrimination.
The patent need to protect more groups from discrimination led to a series of long and complex efforts on the part of unions and social activist groups. Their battle eventually led to the adoption of the Employment Equality Bill of 1998, which protects workers in the Republic of Ireland from discrimination on nine specific grounds, including sexual orientation. The Act also defined sexual harassment for the first time in Irish law and prohibited both sexual harassment and harassment generally in the workplace. The Act failed to include homosexual sexual harassment, however. An Equal Status Bill is currently working its way through the legislature, which attempts curb discrimination in education, property, land accommodation, partnerships and clubs.
The enforcement of the Employment Equality Act of 1998 has been a time-consuming task. Among other provisions, the Act calls for the establishment of a twelve-member Equality Authority commission, whose members shall oversee the Act’s implementation. All twelve members of the Authority have currently been selected (eight were appointed by the Minister of Justice, two by unions, and two by employers’ groups). However, more decisions regarding how the new infrastructure shall operate are still to be made; hence the Act is not yet in effect.
Parting Thoughts
The accomplishments of these two civil rights movements over the past twenty years have been monumental. Homosexuality has been decriminalised, anti-discrimination legislation is in the works, and a gay and lesbian society can be found at nearly every university on the island. Yet, outside of the major cities of Belfast, Cork, and Dublin there exist very few venues for gay social interaction. Homosexuals still face harassment and even violence; a 1995 study on the quality of homosexuals’ lives within Ireland found that 41% of the 159 respondents had been threatened with violence because they were assumed to be lesbian or gay.
Discrimination against homosexuals is also rampant in both Northern Ireland and the Republic. It’s strange that such hatred and hostility towards certain people can exist in a country that claims to be so religiously principled. One should hope that the members of the homosexual community as well as other minority groups on this small island receive their rights soon. As the Reverend Dr. Martin Luther King Jr. was known to say, “Injustice anywhere is a threat to justice everywhere.”
Mike Farrel ’00 is a Government Major. He would like to thank members of Foyle Friend, GLEN, Ireland’s Dept. of Justice, SIPTU, the staff and students at UCC, and the Northern Ireland Equal Opportunity Commission for their help with this article.
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