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An Irish “don’t ask, don’t tell”, but not tell what, exactly? July 3, 2015

Posted by Tomboktu in Equality, Freedom of speech, Human Rights, LGBT.

We got a chance in the Seanad yesterday to see some real, unscripted discussion on what a piece of law reform should be about, and thanks are due to Senator Averil Power and Aodhán Ó Ríordáin TD, the junior minister for equality for naming the issues and following through with the implications of what they thought about them.

After a break of 15 months, Senator Ivana Bacik’s bill to amend the notorious section 37 was back in the Seanad, following a decision by the government on Tuesday to accept it, but with amendments. Section 37 — specifically, subsection 1 — is the clause in the Employment Equality Act 1998 that allows church-run schools, hospitals and medical institutions, and other religious institutions to have certain exemptions from the ban on discrimination in order to protect their ethos.

The INTO and the other teacher unions, along with BeLonG To and GLEN, the main gay advocacy organisations, have been lobbying for many years to have it removed. Articles on religion and on education in the Constitution mean they were never going to get their way without a referendum, so the real question has been: how far can the exemptions be diluted?

Bacik’s approach was to add an exception to each of the exemptions in section 37(1). Her exceptions would apply to schools and medical institutions that are funded by the state. It would have the virtue of bringing the vast bulk of schools and hospitals within the scope of her exceptions while having the vice of not changing the fundamental underlying values in the law — the stronger protection for lgb people (and divorcees, cohabitants, and lone parents) would be an exception to the core piece of law.

Procedurally, the debate picked up yesterday from where it left off last year, on amendment no. 4 to the bill, from Senator Katherine Zappone. Under standing orders, when Ó Ríordáin was responding to that discussion, he should have dealt only with that amendment, but he read into the record his intention to bring forward amendments at the next stage of the process, the report stage debate. (Most of these have nothing to do with section 37.) His main amendment, he said, would introduce a three-part test that schools and medical institutions must meet if they want to take action in response to the conduct of an employee that the institution believes damages the ethos of the institution.

Having breached procedure by bring up matters unrelated to the business at hand in his first speech, Ó Ríordáin then unhelpfully respected procedure by not circulating the text of his amendments, but Power knows this subject inside out having been the first to bring in a bill to reform section 37 in the current Oireachtas — defeated when she pushed it to a vote in 2012 — and she tackled Ó Ríordáin on two of the key flaws in his proposal: that although abstract standards that are to apply to the conduct of teachers, doctors, etc., are to be spelt out, the ‘conduct’ is not defined; and that he appeared to be leaving Bacik’s distinction between state-funded and privately funded institutions untouched.

Three-part legal tests containing standards like “proportionate to the conduct” and “rationally and strictly related to the ethos” are the kind of rule that law lecturers and High Court judges get their kicks from, and are paid handsomely to get those kicks, but they’re not much practical use to a lesbian teacher who is wondering if it’s OK to mention in the staff room but not the classroom that she got engaged at the weekend, and who has no idea what the three-part test means — if she even knows it exists — if a student asks about her engagement ring when she’s driving him and two others to the inter-school debating competition.

Power challenged Ó Ríordáin on whether prohibited conduct under his three-part test could include a teacher responding to a student being bullied because he has two mothers with an admonishment to the bullies that all families are entitled to equal respect, or could it include taking part in a pride parade. She told the Seanad about a gay man in the USA who was legally sacked when he announced he was getting married; if we are not clear that this is not conduct a religious hospital or school can prohibit, we will make a mockery of the vote of the people in the marriage referendum.

Power probably did not intend her remark about the American man to be a pointed one, but it had an additional edge for some of those in the chamber. Zappone’s spouse, Dr Ann-Louise Gilligan, was in the public gallery. A decade ago, when she and Zappone took their High Court case to have their Canadian marriage recognised in Ireland, she feared that her job in St Patrick’s College of Education, in Drumcondra, Dublin — which is under the patronage of the Roman Catholic archbishop of Dublin — because of the scope of section 37(1). Both Dr Gilligan’s spouse — Zappone — and lawyer in that case — Bacik — were in the chamber on the other side of the protective glass.

Senator David Norris chipped in with a brief account of a school gardener in Scotland who was sacked from his job when he was seen at a pride parade, and whose dismissal was found to be lawful when he took a legal challenge against it. Power had tabled a detailed amendment to Bacik’s bill to deal with the gaps she sees in it on this and other matters, and when the debate moved to her amendment, she pushed the minister on the point. He was visibly concerned at the events in other countries that Power and Norris reported, and agreed to look at the meaning of ‘conduct’, effectively accepting that it is a flaw to leave unspecified questions like when and where the conduct occurs and what it is. However, he warned that care would be needed in adding amendments to narrow the scope of the conduct a school or clinic can oppose in order to avoid the amendments getting caught up in the Attorney General’s office for so long that the Bill would not be completed before the next general election.

Power was less successful in arguing for the distinction between state-funded and private schools and medical institutions being removed, though she made the strong point that this is not a distinction we see anywhere else in employment law. This distinction is one that Power raised more than once yesterday, and I expect she will press this point with an amendment at report stage.

But it was on a third item that Power drew out some of the more interesting discussion on the underlying issue in this country. A point was made in passing — I can’t remember by whom, and the debate is not yet published so I cannot look it up — that a “genuine, legitimate and justified occupational requirement” — a term in Bacik’s bill — would obviously allow a school to insist that a religion teacher be of the religion of that school. Power disagreed with that assumption. She didn’t mention it, but she probably has case law on her side. In the 2010 case of McKeever v Knocktemple National School, a Roman Catholic school was found to have discriminated when it withdrew an offer of employment to a teacher who is a member of the Church of Ireland. It does not appear to be have been part of the basis for the ruling, but the Equality Tribunal’s full case report does record that Ms McKeever had told the school she was familiar with and willing to teach the Roman Catholic Alive-O religious programme.

Power said that all primary teachers in Ireland are required to be religion teachers, and therefore allowing the criteria that you must be of the religion of the school to be a religion teacher would amount to a requirement of religious affiliation in order to be a primary teacher of any subject. She also pointed out that at second level, many religion teachers are not simply teachers of religion, but have two subjects of which religion is one.

Power’s challenge to the assumption that a school should be allowed to insist that a religion teacher actually be of that faith appeared to prompt Ó Ríordáin to note that every country in Europe that he has looked at has a section 37(1). The implication that we are not different from the rest of Europe quickly drew the observation that, on the contrary, we are very different because, unlike other countries, the overwhelming majority of our schools are under church control. A section 37(1) in another country has the effect of protecting a minority of schools (those under religious control) and the religious rights of parents. Here, because we have so few schools not under religious patronage, it has the effect of putting the minority at a disadvantage. Bacik, possibly worried where this kind of talk might lead, said that this was a debate for another day.

And so to Tuesday next, when the Seanad will hold its debate on the report stage of Bacik’s bill and discuss and decide on the government’s amendments. The original “don’t ask, don’t tell” was a US policy introduced by Bill Clinton when, for political reasons, he was not able to simply lift the ban on lgb soliders serving in the US Army. The policy paved the way for the ban to be repealed 18 years later under President Obama (although a ban on trans soldiers still applies). We are in a different time and a different jurisdiction, and those two differences pull in opposite directions. Our different time is one in which we can no longer expect a person’s homosexuality to be confined to the private sphere. Six weeks ago, 1,201,607 people voted to change our Constitution to release homosexuality from the confines of the private and allow it into the registry office and the official records of the State on an equal footing with heterosexuality. Our different jurisdiction is that Articles 42 (education) and 44 (religion) of the Constitution prevent the complete removal of any restriction by legislation or regulations.

Furthermore, the lawyers and officials advising Ó Ríordáin do not have any legal precedents that they can look to for guidance on where the balance of rights falls in 2015: section 37(1) has never been invoked in a case by a school, hospital, or employee, and nor has the corresponding EU law been invoked before the Court of Justice. Even if those precedents were available, May 22 changed the context in ways we have yet to understand. On Tuesday, we will learn if the remaining injunctions on teachers, nurses, and doctors to not tell is clear and narrow, or if it is opaquely buried under abstract legalistic three-part tests that will, in years to come, need court cases, and therefore victims going to court, to clarify and limit in light of the new values we have written into our constitution.


1. dublinstreams - July 3, 2015

what it says they will do in the programme for government
People of non-faith or minority religious backgrounds and publically identified LGBT people should not be deterred from training or taking up employment as teachers in the State

Click to access Programme_for_Government_2011-2016.pdf


2. Tomboktu - July 4, 2015

Re-reading the post, I see one of my points was pure fantasy. Teenage boys would never notice an engagement ring.


3. EWI - July 4, 2015

There are (obviously) LGB people in the Defence Forces, but it has always seemed to be ‘don’t ask, don’t tell’. The military justice system in there, a fairly mediaeval construct (the ‘National Army’ owes at least as much parentage to the British system of the start of the last century as to the Volunteers etc.) hasn’t been notably reformed, as far as I can see.

There was a certain fairly recent judicial appointment in there which ended in considerable embarrassment – the holder clearly held to the hanging and flogging school of the 1700s.


EWI - July 4, 2015

My point being, that although homosexuality’s not illegal since 1993, that doesn’t preclude someone from trying an angle on it, and what the outcome could be.


4. Tomboktu - July 8, 2015

What the government is proposing the law on this should be:

37 (1) Subject to subsections (1A) and (1B), a religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part or Part II if—

(a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or

(b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.

(1A) Where an educational or medical institution referred to in subsection (1) is maintained, in whole or in part, by monies provided by the Oireachtas, more favourable treatment on the religion ground referred to in paragraph (a) of that subsection shall be taken to be discrimination unless—

(a) that treatment does not constitute discrimination on any of the other discriminatory grounds, and

(b) by reason of the nature of the institution’s activities or the context in which the activities are being carried out, the religion or belief of the employee or prospective employee constitutes a genuine, legitimate and justified occupational requirement having regard to the institution’s ethos.

(1B) Where an educational or medical institution referred to in subsection (1) is maintained, in whole or in part, by monies provided by the Oireachtas, action of the type referred to in paragraph (b) of that subsection shall be taken to be discrimination unless by reason of the nature of the employment concerned or the context in which it is
carried out—

(a) the action is objectively justified by the institution’s aim of preventing the undermining of the religious ethos of the institution,

(b) the means of achieving that aim are appropriate and necessary.

(1C) An action referred to in subsection (1B) shall not be objectively justified in accordance with paragraph (a) of that subsection, or appropriate and necessary in accordance with paragraph (b) of that subsection, unless the action of the institution is—

(a) rationally and strictly related to the institution’s religious ethos,

(b) a response to conduct of the employee or prospective employee undermining the religious ethos of the institution rather than a response to that employee’s, or prospective employee’s, gender, civil status, family status, sexual orientation, age, disability, race or membership of the Traveller community, and

(c) proportionate to the conduct of the employee or prospective employee, as the case may be, having due regard to—

(i) any other action the employer may take in the circumstances,

(ii) the consequences of that action for that employee or prospective employee, and

(iii) the actual damage caused to the religious ethos of the institution by the conduct of that employee or prospective employee.


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