List of laws and reports on LGBT rights in the Republic of Ireland

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This is a list of laws, court cases and reports on LGBT rights in Ireland.


Buggery Act 1533[edit]

The Buggery Act 1533 was passed by the English parliament under King Henry VIII and applied to England and Wales only. It is also known as (25 Henry VIII c. 6). It outlawed the practice of 'buggery' which is male-to-male sexual intercourse. The penalty was death. It was the first piece of civil law to outlaw male-to-male sex acts. Up until 1533 buggery was seen as a 'sin' and thus it was a matter to be dealt with by the church and not by state institutions. Ireland was a separate kingdom and had its own parliament. It is unclear if or when the Irish parliament passed a similar piece of legislation. Often the Irish parliament passed legislation that mirrored the legislation of England. Buggery may have been criminalised in Ireland under the Felony Act, 1634.

Offences Against the Person (Ireland) Act 1829[edit]

This act brought the provisions of the Offences Against the Person Act 1828 into law in Ireland. Under the Offences Against the Person Act, 1828 buggery was punishable by death.[1]

Offences Against the Person Act 1861[edit]

This act updated and streamlined the criminal law of Great Britain and Ireland. It outlawed many forms of practices including 'buggery' or male-to-male penetrative sex. The punishment was life imprisonment or a jail sentence of not less than 10 years. It abolished the death penalty for such acts, which had been law up to this point.[2]

Criminal Law Amendment Act 1885[edit]

Commonly known as the Labouchere Amendment. This act outlawed what was termed ‘acts of gross indecency’ between men both in public and in private. The definition was vague and included intimate acts falling short of penetrative sex between two men. Male to male sex was illegal under previous law but it was very narrowly interpreted by the courts. Usually the courts required that penetration to have occurred for 'buggery' to have taken place. This new act made it much easier to punish the intimate acts of men together. The penalty was a maximum of two years imprisonment. The most famous person to be convicted under this act was Oscar Wilde.[2]

Vagrancy Act 1898[edit]

This prohibited soliciting or importuning for immoral purposes. It was originally intended as a measure against male to female prostitution, however in practice these measures were almost solely applied to male-to-male sex acts.[2]

Criminal Law (Amendment) Act 1912[edit]

This allowed flogging to be used as a punishment against existing crimes in regards to sexual offences.[2]

Criminal Law Bill 1921[edit]

Proposed to extend the provision criminalising gross indecency between males to gross indecency between females. This bill was dropped due to those who felt that to even criminalise female-to-female sex acts would draw attention to these acts and publicise them. As a result, female-to-female sex acts were legal, unlike male-to-male sex acts.[3]

Norris v. the Attorney General (1980) (High Court)[edit]

David Norris, later to become a senator for Trinity College, Dublin and presidential candidate, took the Attorney General to the High Court over the criminalisation of male-to-male sex. He argued that the law infringed on his right to privacy to have consensual sex with a man and that since the introduction of the Constitution of Ireland the law passed under British rule became repugnant to the constitution. The High Court ruled against Norris. He appealed his case to the Supreme Court.[2]

Norris v. the Attorney General (1983) (Supreme Court)[edit]

Having lost his High Court case Norris appealed his case to the Supreme Court. The Supreme Court upheld the constitutionality of the law by a three to two verdict.[2]

Norris v. Ireland (1988) (European Court of Human Rights)[edit]

Main article: Norris v. Ireland

Having lost the Supreme Court case Norris took his case to the European Court of Human Rights. The European Court struck down the law criminalising male-to-male sex on the grounds of privacy. It was held that this infringed on the right of adults to engage in acts of their own choice. Irish law was regarded as too narrow and extreme.[4]

Regulations regarding sexual orientation in the Irish Civil Service (1988)[edit]

These regulations affected the terms and conditions of employment of civil servants. These regulations prohibited discrimination on the grounds of sexual orientation or if a person was HIV positive.[5]

Prohibition of Incitement To Hatred Act 1989[edit]

Prohibited inciting hatred on various grounds include a person's sexual orientation.[6]

Video Recordings Act 1989[edit]

This act regulates the sale and supply of video recordings. It allows the Censor to suppress videos that are likely to stir up hatred against a person or group of person on account of their sexual orientation as well as on other grounds. [7]

Child Care Act 1991[edit]

This act regulates the service of fostering. This act permits same-sex couples to apply jointly for fostering. This may not have been intended at the time to permit same-sex couples to foster children, however it has since become practise to allow same-sex couple to foster.[8][9]

Adoption Act 1991[edit]

Up until this act an adoption could only be granted to a married couple living together, the natural parents of the child, a relative of the child or a widow or widower. This act allowed a person not related to the child to adopt provided the Adoption Board was satisfied that this was in the best interests of the child. This meant that a single person irrespective of their sexual orientation could adopt a child. Presumably this was to take place in exceptional circumstances. Same-sex and opposite-sex cohabiting couples were not permitted to apply for adoption. This has since been changed by the Children and Family Relationships Act 2015. [10][11]

Criminal Law (Sexual Offences) Act 1993[edit]

Decriminalised acts of male-to-male sex. This act repealed the sections of the Offences Against the Person Act, 1861 on buggery over the age of 17 thereby setting an equal age of consent for same-sex or opposite-sex sexual intercourse. It also repealed as a whole the Criminal Law Amendment Act 1885, thereby abolishing 'acts of gross indecency between males' in law.[12]

Unfair Dismissals (Amendment) Act 1993[edit]

Prohibited dismissing an employee on a number of grounds including sexual orientation.[13]

Social Welfare (Consolidation) Act 1993[edit]

This act provided the legal basis for social welfare payments and consolidated all previous acts regarding social welfare into one act. This act allowed for some social welfare payments to be given to cohabiting opposite sex couples. Same-sex couples were not recognised and thus were unable to apply for any social welfare payments as a couple.[14]

Health Insurance Act 1994[edit]

This act prohibited health insurance companies from varying their premiums on the grounds of a persons sexual orientation.[15]

Domestic Violence Act 1996[edit]

Allows for a partner in a same-sex cohabiting relationship to apply for safety order or an interim protection order but does not allow for a permanent barring order which was at the time available to married couples and opposite-sex couples. This has since been changed. See Civil Law (Miscellaneous Provisions) Act 2011 below. Also see Domestic Violence Bill 2017 [16][17]

Powers of Attorney Act 1996[edit]

Widened a person's right to grant power of attorney beyond their family or next of kin. A person could grant power of attorney to their partner where that person becomes unable to make decisions for themselves due to mental incapacity.[16][18]

Refugee Act 1996[edit]

Allows refugee status to be conferred on an individual on the basis of a fear of persecution arising from their sexual orientation.[19]

Freedom of Information Act 1997[edit]

This act allows the general public to have access to information and records kept about them by the civil service, state agencies and by private companies. The act allows information on a persons sexual orientation to be kept on record and to be shared.[20]

Treaty of Amsterdam 1997[edit]

Sexual orientation was included amongst the grounds for prohibiting discrimination at work. See Treaty of Amsterdam. In order to ratify the Treaty of Amsterdam a referendum had to be held to amend the Irish constitution. The 18th Amendment of the Constitution Act, 1998 amended the constitution in order to allow the state to ratify the Treaty of Amsterdam.

British-Irish Agreement 1998[edit]

The British-Irish Agreement provided the legal basis for the Good Friday Agreement. In the Good Friday Agreement the British government gave a commitment to establish a Human Rights Commission for Northern Ireland. It also committed all public bodies to carry out their duties with due regard for the need to promote equality of opportunity on nine grounds including sexual orientation. The Irish government gave a similar commitment. The 19th Amendment of the Constitution Act, 1998 allowed the Irish state to ratify the British-Irish Agreement.[21]

Employment Equality Act 1998[edit]

Prohibited discrimination at work on a number of grounds including sexual orientation. The act covered aspects such as terms and conditions in employment contracts; promotion and demotion; harassment at work; indirect discrimination; pay and work conditions; membership of unions and professional bodies; and participating in training courses. Mechanisms were put in place to ensure the enforcement of this Act. A person can seek mediation or adjudication with the Equality Authority or go to the Equality Tribunal for a binding ruling which can only be appealed to the courts on a point of law. Under Section 37 (1) of the original 1998 act a religious institution that provides religious, educational or medical services enjoyed a broad exemption from this act. The unamended Section 37(1) allowed religious run schools and hospitals to take action against an employee or prospective employee in order to uphold their ethos. Since 98% of primary schools and 52% of secondary schools are religious run, this meant that up until 2015 a school could legally discriminate against a gay or lesbian employee. Section 37.1 was amended to narrow the grounds for legal discrimination. See Equality (Miscellaneous Provisions) Act 2015. [22] [23]

Equal Status Act 2000[edit]

Prohibited discrimination on many grounds, including sexual orientation, in the provision of services and goods by commercial companies as well as by state institutions such as the civil service and state agencies. It covered a wide area of services such as financial produces–mortgages, savings, loans; access to building and clubs and societies–not be allowed to be told to leave on the grounds on ones sexual orientation from a nightclub etc.; the state through it civil service and its various agencies could not discriminate in matter such as–granting loans or grants to university, providing an individual dole to other social assistant; in terms of renting property a landlord could not refuse to offer accommodation to a gay man or couple or evict them on that basis. The Act also empowered the Equality Authority to monitor and enforce the law regarding equality in both the provision of goods and services and employment. A person can take a case to the Equality Tribunal in the event of discrimination occurring.[24]

Finance Act 2000[edit]

Allowed cohabiting couples either same-sex or opposite-sex to apply for relief on Capital Acquisitions Tax on their property in limited circumstances.[16][25]

Health Insurance (Amendment) Act 2001[edit]

This restated the prohibition of discrimination in the provision of health insurance on the grounds of sexual orientation under the Health Insurance Act, 1994. This applies to individuals and not same-sex couples.[26]

Implementing Equality for Lesbians, Gays and Bisexuals 2002[edit]

In a wide ranging report on the situation of gays and lesbian in Ireland the Equality Authority made many recommendations for change across many areas. Most of its recommendations were non statutory. It called for all policies of the government departments to be equality proofed on the grounds to sexual orientation. It called for many changes needed to help benefit gays and lesbians for example hospital visits of partners of same sex couples, provision of services where the provider are ignorant or unaware of the needs of gays and lesbian. It also called on for civil marriage to be widened to also for same sex couples to marry. It also called on for civil partnership laws to be introduced if same sex marriage is not allowed.[27]

European Arrest Warrants Act 2003[edit]

This act gave legal effect to the EU Framework Decision on the issuing of European Arrest Warrants. A European arrest warrant applies to all of the EU. However the Minister for Justice can refuse to surrender a person if it is believed that the European arrest warrant was issued in order to punish that person on the grounds of their sexual orientation as well as on other discriminatory grounds.[28]

Civil Registration Act 2004[edit]

Placed a bar on the ability of two men or two women from entering into marriage. This reinforced the common law understanding that marriage is between one man and one woman. This act allows for marriages (between a man and a woman) to take place in other locations than a church and a registry office. This bar has since been removed by the Marriage Act 2015. [29]

Social Welfare (Miscellaneous Provisions) Act 2004[edit]

This act prohibited unfair discrimination in the provision of occupational pensions on the grounds of sexual orientation. This related to individuals only. This does not make a requirement for pension schemes to pay a death grant to the surviving partner of a same-sex relationship. This has been partially amended with the enactment of civil partnership and the enactment of marriage for same-sex coupes. Married same-sex couples and civil partners are in general entitled by law to a death grant from an occupational pension scheme where that scheme does the same for married opposite-sex couples. A same-sex cohabiting couple do not enjoy this protection.[30]

Equality Act 2004[edit]

Allows for positive action to be taken in the workforce in order to promote greater equality on all nine grounds as outlined in the act including sexual orientation. It also closes a loophole in regards to harassment whereby a person does not have to have the characteristics imputed about them in a situation of harassment. For example, if a person is subject to homophobic jokes but that person is not gay or lesbian they may take legal action to redress the harassment. Another new provision covers people who suffer from discrimination by association. Such persons can make a case even if they do not fall into one of the nine specific groups which are covered under the legislation. For example, someone who defends a co-work who is gay from harassment could in turn suffer from harassment, that person can take a case to the Equality Tribunal. Another development deals with indirect discrimination where a particular measure, while appearing neutral on the face of it, has a disproportionate impact on a particular group or individual in the workplace. Companies are required to monitor the impact of their policies on their employers and adjust their policies to cater for different needs of their employees.[31]

Social Welfare Consolidation Act 2005[edit]

This act restated the limit contained in the Social Welfare Consolidation Act 1993 prohibiting the granting of social welfare payments to same-sex couples. Some social welfare payments were given to opposite-sex cohabiting couples while more were given to married couples as well as widows and widowers. This has since been changed by the Social Welfare and Pensions Act 2010. (see below)[32]

Criminal Law (Sexual Offences) Act 2006[edit]

This abolished the legal concept of buggery under the age of 17 and replaced it with a new offence of 'defilement of a child'. Buggery over the age of 17 had been abolished by the Criminal Law (Sexual Offences) Act 1993. The term 'defilement of a child' was gender neutral and this covered sexual intercourse with any person under the age of 17. Sexual intercourse with a person under the age of 15 carries a penalty of life imprisonment, while sexual intercourse with a person between the ages of 15 to 17 carries a penalty of 5 years or 10 if the person is in a position of authority.[33]

Zappone vs Revenue Commissioners (2006) (High Court)[edit]

Commonly known as the KAL case. Katherine Zappone and Ann Louise Gilligan, who got married in Canada and live in Ireland, took the Revenue Commissioners to court since they refused to recognise their Canadian marriage and for refusing to grant them joint tax assessment. Married couples in Ireland are entitled to have their income jointly assessed as this reduces the overall amount of tax paid. The couple argued that marriage is not defined in the constitution to specify either same sex or opposite sex. They also argued that their rights were being infringed by the lack of recognition of their marriage. The High Court rejected the arguments of the couple. Ms Justice Dunne did accept that the Irish Constitution does not define marriage as between opposite sex couples, however she argued that marriage was traditionally understood to be between a man and a woman and that this understanding of marriage ran through all court cases and legislation about the rights and duties of married couples. Katherine Zappone and Ann Louise Gilligan initially decided to appeal their case to the Supreme Court. However they decided to change the grounds of their challenge and this required them to issue a new legal challenge in the High Court. In their original case they did not challenge the constitutionality of the Civil Registration Act, 2004 which put into law an impediment on two couples of the same-sex from getting married. Since the opening up of marriage to same-sex couples under the 34th Amendment of the Constitution (Marriage Equality) Act 2015 this will arguably make their legal challenge mute .[34][35]

Options Paper (2006) (Dept. of Justice, Equality and Law Reform)[edit]

This was drafted by a working group of former politicians, civil servant and members from relevant NGOs. This working group was established by the then Minister for Justice, Equality and Law Reform. It was chaired by Anne Colley. This paper examined the various options open to the government in regards to legal recognition of cohabiting couples, both same-sex and opposite-sex. It acknowledged that only the introduction of same-sex marriage would grant full equality for same-sex couples. However the introduction of same-sex marriage would be constitutionally vulnerable. It recommended that civil partnership be introduced for same sex couples.[36]

Report on Cohabiting couples by the Law Reform Commission 2006[edit]

In this report the Law Reform Commission suggested a scheme whereby same sex and opposite sex couples who lived together for 3 years (2 years if they have a child) could make arrangements or sign a legally binding contract in regards to taxation, pensions, inheritance, custody and other matters between themselves. Married couples automatically have a wide range of rights, protections and duties under law. Same sex couples, who at the time could not marry, and opposite sex couples who live together but who choose not to marry do not benefit from many of these rights unless specifically provided so by law. There were very few rights at the time conferred by law to such couples. The report did not propose a scheme such as civil partnership as this would prescribe a fixed bundle of rights and duties and would require cohabiting couples to opt-in. Instead each couple would be free sign a cohabiting contract that would have the force of law. On the death or break up of a relationship one or both of the parties could apply to court to get various court orders for payment or property if they are economically dependent. The report recommended that cohabiting couples should have the right to opt out of this arrangement but the courts could lay aside this opt-out if it was judged that this opt-out would cause injustice to a former cohabitant. In this report the Law Reform Commission repeats the recommendations it gave in its previous consultation paper issued in 2004 but the Commission strengthened the recommendations to allow for a wider range of protections especially those effecting pensions and employment law. It contained a draft bill to allow for the legal recognition of cohabiting couples. Almost all of this draft bill was included as Part 15 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010.[37]

Parental Leave (Amendment) Act 2006[edit]

Entitles a person to take force majeure leave which is paid time off work to care for their same-sex partner and to make arrangements to have them taken care off in the event of a sudden illness or in an emergency. This did not cover parental leave which was only available to married couples and opposite-sex cohabiting couples until 2016. See Paternity Leave and Benefit Act 2016.[38]

European Communities (Free Movement of Persons) Regulations 2006[edit]

This statutory instrument put into law the EU directive 2004/38/EC. It allows a same-sex couples where one person is an EEA national and the other who is a non-EEA national to live in Ireland without the requirement of getting a work permit. The same-sex couple had to be in a relationship for 2 years and the relationship had to be attestable, that is there is proof that the relationship was genuine. This did not cover Irish nationals who were in a relationship with a non-EEA national. In 2008 this loophole was closed and non-EEA national who is cohabiting with an Irish national is not required to get a work permit.[39]

Treaty of Lisbon 2007[edit]

The Treaty of Lisbon was signed in 2007 and came into legal effect on 1 December 2009. In order for the Irish state to ratify the treaty the constitution had to be amended and this required a referendum to be held. The 28th Amendment of the Constitution (Treaty of Lisbon) Act, 2009 amended the constitution to permit ratification. The Treaty of Lisbon gives legal effect to the Charter of Fundamental Rights of the European Union. This Charter prohibits any discrimination in the workplace on the grounds of sexual orientation. The Charter is limited in its application to areas of law within the competencies of the EU. It is unclear what consequences this will have vis-á-vis Section 37 (1) of the Employment Equality Act, 1998 which grants an exemption to religious run institution to discriminate legally in order to uphold the ethos of their institution.[40]

Foy v. An t-Ard Chlaraitheoir & Others (2007) (High Court)[edit]

Lydia Foy was born male and had a gender reassignment operation in 1992. She had sought to get the Registrar General to recognise her change of gender and issue a new birth certificate in her correct gender. The Registrar General refused to do this. Lydia Foy took the state to the High Court seeking an order to compel the Registrar General to issue a new birth certificate. The initial case was heard in 2000 and in 2002 a judgement was handed down. The High Court refused to order the Registrar General to issue a new birth certificate. Lydia Foy appealed the case to the Supreme Court. Meanwhile, a number of other legal developments occurred. In 2002 the European Court of Justice heard a similar case about a transgender woman in the Christine Goodwin v. UK and the European Court of Justice ordered the UK government to recognise Christine Goodwin's new gender and issue a birth certificate. Also Ireland ratified the European Convention on Human Rights (ECHR) in 2003 and brought its provisions into domestic law. Lydia Foy brought a fresh case to the High Court arguing that her rights under the Convention were being breached. In 2007 the High Court found in favour of Lydia Foy and declared that Ireland's law was incompatible with the ECHR and ordered that a new birth certificate be issued to Lydia Foy. The state did seek to appeal the case but in 2010 it dropped the appeal and accepted the outcome.[41]

Passports Act 2008[edit]

This allowed the Passport Office to change the gender on a passport if a person had a gender reassignment operation. This was a first time in law that transgender persons were recognised.[42]

Criminal Justice (Mutual Assistance) Act 2008[edit]

With this act Ireland ratified a number of international conventions on the cooperation of justice systems concerning the arrest and extradition of criminals within the EU, with the United States and under UN conventions. The Irish state can refuse to provide cooperation if the Minister for Justice believes that to do so will result in a person been punished on the grounds of their sexual orientation.[43]

McD v. L (High Court) (2008)[edit]

In this case a lesbian couple P.L. and B.M. had a child using sperm donated by J.McD. a gay friend of theirs. They had arranged a contract with J.McD. The role of J.McD. was to act as an ‘uncle’ to the child but not be involved in the daily life of the child. J.McD. went to court to establish guardianship over the child, as its natural father. The High Court refused J.McD.'s application. The High Court upheld the contract agreed by P.L. and B.M. and granted them sole guardianship and custody of the child at the centre of the case. Significantly the High Court acknowledged the lesbian couple and their child as a de facto family who enjoyed the rights granted to families under Article 8 of the European Convention of Human Rights. The judge also called upon the Oireachtas to legislate for same-sex couple who raise children and recognise them as families.[44]

European Communities (Free Movement of Persons) (Amendment) Regulations 2008[edit]

This amended the 2006 regulations. It removed the requirement that a same-sex couple with one of the partners being a non-EEA national must have been resident in another member state in order to move to Ireland. This meant that an Irish citizen and his or her same-sex partner could move to Ireland. This change of law came about as a result of the Metock Case which was decided at the European Court of Justice.[45]

Health Insurance (Miscellaneous Provisions) Act 2009[edit]

This restated the ban on varying health insurance premiums on the grounds of sexual orientation and on other grounds. It is a similar provision to the Health Insurance Act, 1994 and the Health Insurance (Amendment) Act, 2001.[46]

McD v. L (Supreme Court) (2009)[edit]

Main article: McD v. L

The Supreme Court reversed the decision of the High Court. McD was not granted guardianship over the child as its natural father. The Supreme Court held that the family based on marriage was the only family type that is given constitutional recognition and thus refused to recognise the lesbian couple in this case as a family.[47]

Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010[edit]

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 allows for same-sex couples to enter a civil partnership on the same terms as married couples. The act deals with a number of areas such as succession of property, pension entitlements, domestic violence, and maintenance in the event of a breakdown of a relationship. The social welfare benefits and the tax entitlements of civil partners were dealt with in other pieces of legislation (see the Social Welfare and Pensions Act, 2010 and the Finance (No. 3) Act, 2011). The act makes provision for recognition in Ireland of same-sex marriages and civil partnerships performed abroad, however such unions will only be recognised as civil partners only. The act does not deal with residency of same-sex couples that wish to become civil partnered in Ireland. Civil partners must wait 2 years to get their partnership dissolved. Judicial separation is not allowed. Civil partners were not allowed at the time to adopt jointly though one civil partner was allowed to adopt a child as a single person. Also at the time civil partners could not have joint guardianship over any children they raised together. This has since been changed under the Children and Family Relationships Act 2015. The first public civil partnerships took place in April 2011. With the passing of the marriage equality referendum the law has changed and same-sex couples cannot now enter a civil partnership. See Marriage Act 2015.

The act also provides for legal recognition of cohabiting couples, both opposite-sex and same-sex, where they have been together for 5 years or 2 years if they have a child in common. Cohabiting couples are able to enter into a legally enforceable written contract where they can arrange their affairs on finance and property. Prior to this act the courts refused to regard any contract between cohabiting couples as legally enforceable. Where a cohabitation relationship ends on breakdown or on death one or both of the cohabitants can apply to court to get a maintenance order, property adjustment order, pension adjustment order and other such orders that married couples can get when they are separating or divorcing, provided that the person bringing the case is or was economically dependent on the other cohabitant.[48]

Social Welfare and Pensions Act 2010[edit]

Part 2 of this act deals with the social welfare entitlements of civil partners. This act amends the Social Welfare Consolidation Act, 2005, which gives the legal basis to most of the present social welfare entitlements and schemes. Civil partners are treated the same as married couples and are entitled to all benefits that married couples can get. Same-sex cohabiting couples who choose not to enter a civil partnership are entitled to claim benefits as a 'Qualified Adult' on the same basis as cohabiting opposite-sex couples. Since the coming into effect of this Act same-sex cohabiting couples will have their income jointly assessed when claiming social welfare. Since 2010 civil partners and married couples have been treated the same under subsequent acts on social welfare.[49]

Immigration, Residence and Protection Bill 2010[edit]

This bill proposes to reform the law regarding immigration and residence in Ireland. It is designed to replace all previous legislation. Under amendments proposed by the Minister of Justice, Equality and Law Reform civil partners will be treated the same as married couples in immigration law. Some concern has been raised about family reunification for same-sex couples where one partner is a non-EU national.[50]

Finance (No. 3) Act 2011[edit]

This act grants civil partners the same tax entitlements as married coupled in income tax, stamp duty (which covers the buying and selling of homes), capital acquisitions tax (which covers the inheritance of property), capital gains tax, value added tax (VAT) and other taxes and fees. This act covers civil partners only. Same-sex cohabiting couples are not entitled to the same range of tax entitlements and must enter a civil marriage or have entered into a civil partnership to avail of this. Some of the tax entitlements of civil partners have been made retrospective to 1 January 2011 such as capital acquisitions tax and stamp duty. Relief on income tax starts from the date of entry into a civil partnership. Married couples are treated in the same way as they gain relief on income tax from the date of marriage.[51][52]

Civil Law (Miscellaneous Provisions) Act 2011[edit]

This is an omnibus act covering many areas. It amends the Domestic Violence Act, 1996. A person who is living or has lived in an intimate and committed same-sex or opposite-sex relationship will be able to apply for a barring order or a safety order. This expands the grounds of relief that a person can get. Previously same-sex couples could only get temporary relief such as stopping orders and interim protection orders. Also this act will also allow a person to apply for a safety order against a person with whom he or she had a child in common but who have never lived together.[53]

Finance Act 2012[edit]

This act amended the tax code to correct some anomalies between civil partnership and marriage. For example, civil partners might have had to pay tax on any maintenance payments where there is a child or other dependent involved due to separation or divorce. Married couples do not have to pay tax in this circumstance.[54]

Protection of Employees (Temporary Agency) Act 2012[edit]

This act gives the same protections to persons employed through an agency as to those who are directly employed on a temporary basis. The protections on unfair discrimination on the grounds of sexual orientation and other grounds is the same for agency workers as it is for other employees.[55]

Health Insurance (Amendment) Act 2012[edit]

This act prohibits the varying of the terms of health insurance policies or the premiums on the grounds of sexual orientation. This is similar to the Health Insurance Act 1994, the Health Insurance (Amendment) Act 2001, and the Health Insurance (Amendment) Act 2009.[56]

Social Welfare and Pensions (Miscellaneous Provisions) Act 2013[edit]

This act corrected very minor anomalies between the treatment of married couples and civil partners.[57]

Courts and Civil Law (Miscellaneous Provisions) Act 2013[edit]

This act allowed the press to attend family law cases provided the anonymity of the persons involved is respected. Up until then all family law cases were held in private. If sensitive personal information is to be shared, the court can refuse the press entry or restrict the publication of any information shared in the court. Information relating to a person's sexual orientation is regarded as sensitive personal information.[58]

Irish Human Rights and Equality Commission Act 2014[edit]

This act merged the Irish Human Rights Commission and the Equality Authority together into one body known as the Irish Human Rights and Equality Commission. This act required that as far as possible members of the commission be drawn from the various minority groups including members from the gay and lesbian community.[59]

Freedom of Information Act 2014[edit]

This act allows the general public to have access to information and records kept about them by the civil service, state agencies and by private companies. The act allows information on a persons sexual orientation or their civil status (i.e. that they are married or in a civil partnership) to be kept on record and to be shared. The original Freedom of Information Act, 1997 was amended in 2003 to restrict the information shared and to increase the charges on members of the press and public in accessing information on record. The 2014 act reversed many of the restrictions introduced in 2003.[60]

Civil Registration (Amendment) Act 2014[edit]

This inserted new provisions to prevent civil partnerships of convenience and it allows for civil partnership ceremonies to take place in the embassies of Ireland.[61]

Children and Family Relationships Act 2015[edit]

This act is wide ranging in its reform of the law regarding children. It provided for the legal regulation and recognition of donor assisted human reproduction. It changed the law on guardianship of children. Before the act married parent automatically had guardianship rights over their children and the natural mother had automatic guardianship rights. The natural father did not have automatic guardianship rights although he could go to court to establish those rights or the natural mother could extend those rights to him by statutory declaration. This act automatically gives guardianship rights to natural fathers provided that they have been cohabiting with the natural mother for at least 3 months after the birth of a child in common. It also allows same-sex couples, either in a civil partnership or cohabiting, to apply for guardianship rights over any child they are raising together. It also allows for other relatives of a child such as, grandparents, aunts, uncles to also apply for guardianship rights over a child they are raising. The act changed the law on adoption and civil partners and cohabiting couples (either opposite-sex or same-sex) can apply for adoption after they have been living together for 3 years. The act extends adoption leave to civil partners and to cohabiting couples.[62][63]

Gender Recognition Act 2015[edit]

This act provides for the legal recognition of a person’s new gender where they have gone through a gender reassignment operation or are about to go through a gender reassignment operation. A person who has changed their gender can get a gender recognition certificate. This certificate entitles a person to have important documentation changed to reflect their new gender such as birth certificates. In general a person must be over the age of 18 to get a certificate however an exemption to this can be granted by the courts to a person under the age of 18. Previously a transgender person was required to obtain a divorce if they were married but this condition has since been dropped. A person who wishes to change their gender does not have to go through an exhaustive medical or physiological assessment, rather they need their GP to state that they have gone through a gender reassignment operation or they are about to undergo the operation.[64]

34th Amendment of the Constitution (Marriage Equality) Act 2015[edit]

This act amends the Constitution of Ireland to enable the Oireachtas (Irish Parliament) to pass legislation in order to allow two persons, irrespective of their sex, to get married. The constitution was amended by the insertion of Section 4 of Article 41, which states 'Marriage may be contracted in accordance with law by two persons without distinction as to their sex.' The proposal was put to the people in a referendum and it was carried with 60% of the electorate voting, 62% voting Yes and 38% voting No. [65]

Marriage Act 2015[edit]

The 34th Amendment of the Constitution requires that the Oireachtas pass a law allowing same-sex couples the right to get married. The Marriage Act 2015 fulfils this requirement and commenced on the 16th November 2015. Same-sex couples who wish to marry will have to give 3 months notice, the same as opposite-sex couples. Same-sex couples who entered a civil partnership will remain in that civil partnership. Same-sex couples who are already in a civil partnership can get married by giving 5 days notice. Should any couple in a civil partnership get married then their civil partnership is dissolved. Same-sex couples who got married abroad have had their marriages recognised from the 16th November 2015. Since the coming into legal effect of the Marriage Act 2015 same-sex couples are not allowed to enter into a civil partnership in Ireland. The first same-sex couple to get married took place on the 17th November 2015. The situation regarding same-sex couples who enter into a civil partnership abroad since the 16th November 2015 is unclear as to whether their relationship will be recognised as marriage or as a civil partnership.[66][67][68][69][70]

Equality (Miscellaneous Provisions) Act 2015[edit]

This act is an omnibus piece of legislation and amends various unrelated laws. This act amends Section 37.1. Section 37.1 as previously worded allowed a religious institution that provides religious, educational or medical services the right to legally discriminate against their employees in order to uphold their ethos. Given that some hospitals and many nursing homes as well as 98% of primary schools and 52% of secondary schools are religious run, then a gay or a lesbian teacher, doctor or nurse could have been discriminated against as their sexual orientation could have been seen to undermine the ethos of the school or hospital. This act narrows the scope of Section 37.1. It requires that any employer who wishes to use Section 37.1 must satisfy three tests. These test are that (1) religion is a genuine occupational requirement of the position, (2) the action is objectively justified and (3) the means of achieving the aim are appropriate and necessary. Any action to take place under Section 37.1 must be about the conduct of the employee and not about their sexual orientation. Also employees who work in religious run institutions enjoy a right to privacy.[71]

Education (Admission to Schools) Bill 2015[edit]

This bill deals with the admission policy to primary schools, post-primary schools and third level educational institutions. It prohibits educational institutions from refusing a pupil entry on a number of grounds including sexual orientation. However religious run schools can continue to refuse admission to a pupil if they are not of the same religion of the school. 98% of state funded primary school are religious run and 52% of state funded post-primary schools are religious run. This means that on the religion ground many students could be discriminated against. This has proved to be controversial.[72][73]

European Communities (Free Movement of Persons) Regulations 2015[edit]

This regulation transposes into Irish law the EU Directive 2004/38/EC. This provides an updated regulation on the right of residency. The Regulations provide for the facilitation of entry and residence for EU citizens and their family members. The Regulations also provide for a wider definition of "family member", to include a partner with whom the EU citizen has a durable relationship, duly attested, and the dependent parents, children under 21 and other dependent children of that partner. This does not involve the recognition of such partnerships for other purposes.[74]

Adoption (Amendment) Bill 2016[edit]

This bill aims to legislate for the 31st Amendment of the Constitution (Children) Act, 2012. The bill also proposes to allow civil partners the right to apply for adoption, that children in long term foster care can be adopted and that step parents may apply to adopt their spouses' child. Civil partners were given the right to apply for adoption under the Child and Family Relationships Act 2015.[75]

LGBT Youth Strategy[edit]

As part of its programme for government, the newly elected minority government has promised to devise a LGBT Youth Strategy. The strategy is to focus on equality of opportunities, education, preventative health care, and support services. The Programme for Government states ‘We will develop an LGBT Youth Strategy that will encompass education, youth services, mental health and other issues. As part of this strategy, we will review implementation of the National Action Plan on Bullying in our schools.’ The Minister for Children Katherine Zappone in May 2016 stated that she hoped the LGBT Youth Strategy would be published in one years time. [76]

Paternity Leave and Benefit Act 2016[edit]

This extends paternity leave from 3 days to 2 weeks. It allows paternity leave to be combined with maternity leave and adoptive leave in certain tragic circumstances. Same-sex couples are treated the same as opposite-sex couples. [77][78]

Criminal Justice (Aggravation by Prejudice) Bill 2016[edit]

The Republic of Ireland is somewhat unusual in that it does not have a hate crimes law. Ireland does have the Prohibition of Incitement To Hatred Act 1989, which prohibits incitement to hatred but that law is difficult to enforce. It is unclear if there have been any successful convictions under the 1989 Act. Under the Criminal Justice (Aggravation by Prejudice) Bill 2016 if a person is convicted of an offence the courts may determine that that offence was caused by a hatred towards a person and may impose a higher sentence if the courts deems that appropriate. Sufficient evidence will have be given in the court for an offence to be considered an aggravated offence. The bill does not set out any minimum penalties. The bill names disability, sexual orientation and transgender identity as grounds for an aggravated offence. As this is a private members bill it remains to be seen if it will pass through the Oireachtas.[79][80]

Education (Admission to Schools) Bill 2016[edit]

This bill appears to be exactly the same as the Education (Admissions to Schools) Bill 2015. The 2016 bill contains the same prohibition on religious run schools from discriminating against any pupil on the basis of their sexual orientation. However under this bill schools may continue to give preference to children who are of the same religion of the school over children who are not baptised or who are of another religion.[81]

Modification of the Blood Ban[edit]

Ireland introduced a ban on all men who have sex with men from donating blood. It was a ban for life. This ban was introduced in 1985 at the height of the AIDS crisis. The Minister for Health announced that the ban will be eased in light of evidence that has emerged in recent decades. Men who have sex with men will be able to donate blood provided they have abstained from sexual intercourse for at least one year. Men who have a history of sexually transmitted diseases will have to wait for five years to donate. This measure has been welcomed as a progressive step by GLEN (Gay and Lesbian Equality Network) however they note that the new measure still discriminates against men who are in a committed and sexually active relationship. [82]

Convictions for Certain Sexual Offences (Apology and Exoneration) Bill 2016[edit]

This bill proposes that all men convicted of buggery or gross indecency under previous criminal law be exonerated from their conviction and that they be given an apology. The basis for the exoneration and apology is that it was wrong for the State to have prosecuted men who had consensual sexual acts with other men. The bill goes onto state that the apology and exoneration does not give cause to sue the State nor does it impose a liability on the State. This law does not apply to convictions for sexual acts with minors. Some concern has been raised over non-consensual sexual acts between adult men in the past.[83]

Pensions (Equal Pension Treatment in Occupational Benefit Scheme) (Amendment) Bill 2016[edit]

This is a private members bill. It arose out of the Parris v TCD case that came before the Labour court and the European Courts. Mr David Parris had been living for over 30 years in a stable relationship with his same‐sex partner. His employer’s pension scheme provided for the payment of a survivor’s pension to the spouse or, since the 1st January 2011, the civil partner of a member. However, the survivor’s pension was payable only if the member had married or entered into a civil partnership before reaching the age of 60. In December 2005, it became possible to enter into a civil partnership in the United Kingdom and Mr Parris did so in April 2009, when he was aged 63. At that time Irish law did not recognise such a UK civil partnership. In July 2010 the Civil Partnership Act was enacted and it entered into force the following January. On the 12th January 2011 Mr Parris’s UK civil partnership was recognised in Irish law. In January 2010 Mr Parris obtained an option allowing him to take cost‐ neutral early retirement from the end of that year. He made a request to TCD that, on his death, his civil partner should receive a survivor’s pension. The request was rejected in November 2010. Mr Parris’s appeal to the Labour Court was referred to the Court of Justice of the European Union, but no breach of EU law was found. The European Court found that this issue is purely effects national law that the application of ostensibly non‐ discriminatory pension scheme rules, in this and other cases, in practice impose requirements on scheme beneficiaries which cannot be complied with by same‐sex couples. This bill would close this loophole and require occupational pension scheme to retrospectively recognise same-sex relationships. [84]

Domestic Violence Bill 2017[edit]

The purpose of the Bill is to amend and consolidate the law in relation to domestic violence. The Bill consolidates the provisions contained in the Domestic Violence Act 1996, the Domestic Violence (Amendment) Act 2002 and relevant provisions of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, the Civil Law (Miscellaneous Provisions) Act 2011, the Courts and Civil Law (Miscellaneous Provisions) Act 2013 and the Children and Family Relationships Act 2015. The Bill also includes new provisions which must be enacted in order for Ireland to be able to ratify the Council of Europe Convention on preventing and combating violence against women and domestic violence, more commonly known as the Istanbul Convention. Ireland signed the Istanbul Convention in November 2015. These new provisions include allowing a person to apply for an emergency barring order where that person has lived in an intimate and committed relationship with the respondent without being their spouse or civil partner or where that person is the parent of an adult respondent, and the inclusion of a provision to criminalise forced marriage. The Bill also removes the underage marriage exemption in order to help to protect minors against forced marriage, as requiring both intended spouses to be at least 18 should assist in ensuring that potential spouses have the maturity to withstand parental or other pressure to marry a particular person.[85]

See also[edit]


  1. ^ source retrieved from Google books under Offences Against the Person (Ireland) Act, 1829
  2. ^ a b c d e f Lacey, Brian (2008) Terrible Queer Creatures: Homosexuality in Irish History. Dublin
  3. ^ Vanessa Munro and Carl F. Stychin (eds.) Sexuality and the Law: Feminist Engagements (n.d.) (n.p.)
  4. ^ NORRIS v. IRELAND - 10581/83 (European Court of Human Rights)
  5. ^ Circular 12/88: Civil Service policy on AIDS (PC 160)
  6. ^ "No. 19/1989: Prohibition of Incitement To Hatred Act, 1989". Office of the Attorney General of Ireland. Retrieved 23 November 2008. 
  7. ^
  8. ^ Dr. John Mee and Kaye Ronayne (2000) Partnership Rights of Same Sex Couples (Equality Authority) Dublin
  9. ^ CC-BY icon.svg This content is available under the Creative Commons Attribution License 4.0.
  10. ^
  11. ^
  12. ^ "No. 20/1993: Criminal Law (Sexual Offences) Act, 1993". Office of the Attorney General of Ireland. Retrieved 23 November 2008. 
  13. ^ "No. 22/1993: Unfair Dismissals (Amendment) Act, 1993". Office of the Attorney General of Ireland. Retrieved 23 November 2008. 
  14. ^
  15. ^
  16. ^ a b c Mee and Ronayne (2000) Partnership Rights
  17. ^ "No. 1/1996: Domestic Violence Act, 1996". Office of the Attorney General of Ireland. Retrieved 23 November 2008. 
  18. ^ "No. 12/1996: Powers of Attorney Act, 1996". Office of the Attorney General of Ireland. Retrieved 23 November 2008. 
  19. ^ "No. 17/1996: Refugee Act, 1996". Office of the Attorney General of Ireland. Retrieved 23 November 2008. 
  20. ^
  21. ^
  22. ^ "No. 21/1998: Employment Equality Act, 1998". Office of the Attorney General of Ireland. Retrieved 23 November 2008. 
  23. ^
  24. ^ "No. 8/2000: Equal Status Act, 2000". Office of the Attorney General of Ireland. Retrieved 23 November 2008. 
  25. ^ "No. 3/2000: Finance Act, 2000". Office of the Attorney General of Ireland. Retrieved 23 November 2008. 
  26. ^ "No. 17/2001: Health Insurance (Amendment) Act, 2001". Office of the Attorney General of Ireland. Retrieved 23 November 2008. 
  27. ^ Equality Authority (2002) Implementing Equality for Lesbians, Gays and Bisexuals
  28. ^
  29. ^ "No. 3/2004: Civil Registration Act, 2004". Office of the Attorney General of Ireland. Retrieved 23 November 2008. 
  30. ^ "No. 9/2004: Social Welfare (Miscellaneous Provisions) Act, 2004". Office of the Attorney General of Ireland. Retrieved 23 November 2008. 
  31. ^ "No. 24/2004: Equality Act, 2004". Office of the Attorney General of Ireland. Retrieved 23 November 2008. 
  32. ^
  33. ^
  34. ^ High Court Zappone &Anor. vs. the Revenue Commissioners & Ors. IECH 404 (2006)
  35. ^
  36. ^ Options Paper presented by the Working Group on Domestic Partnership, 2006
  37. ^ Law Reform Commission (2006) Report on the Rights and Duties of Cohabitants (LRC 82-2006) Dublin
  38. ^ "No. 13/2006: Parental Leave (Amendment) Act, 2006". Office of the Attorney General of Ireland. Retrieved 23 November 2008. 
  39. ^ Directive 2004/58/EC and Statutory Instrument (S.I.) No. 656 of 2006 European Communities (Free Movement of Persons) (No. 2) Regulations 2006
  40. ^ "Charter of Fundamental Rights". Retrieved 2012-10-02. 
  41. ^
  42. ^
  43. ^
  44. ^ High Court J.McD. vs. P.L. and B.M. (2008)
  45. ^
  46. ^
  47. ^
  48. ^ "Civil Partnership Bill signed into law". The Irish Times. 17 July 2010. Retrieved 17 July 2010. 
  49. ^ "Ã" CuÃv – key areas of reform in new Social Welfare Bill". 2010. Retrieved 2012-10-02. 
  50. ^
  51. ^ "Civil Partnership". 2011-01-01. Retrieved 2012-10-02. 
  52. ^ "Karl$$$Xml" (PDF). Retrieved 2012-10-02. 
  53. ^ "Civil Law (Miscellaneous Provisions) Bill 2011 [Seanad] As Initiated - Tithe an Oireachtais" (PDF). 2009-11-13. Retrieved 2012-10-02. 
  54. ^ "Finance Bill 2012 Extends Equal Treatment for Civl Partners in the Tax Codes". 2012-02-08. Retrieved 2012-10-02. 
  55. ^
  56. ^
  57. ^
  58. ^
  59. ^
  60. ^
  61. ^
  62. ^
  63. ^
  64. ^
  65. ^
  66. ^
  67. ^
  68. ^
  69. ^
  70. ^
  71. ^
  72. ^
  73. ^
  74. ^
  75. ^
  76. ^
  77. ^
  78. ^
  79. ^
  80. ^
  81. ^
  82. ^
  83. ^
  84. ^
  85. ^