Equality For Same-sex Couples and Their Families ร gra Fianna Fรกil Policy Document
Contents
Executive Summary
Introduction
Two Decades of Progress
The Civil Partnership Bill 2009
Equality for same sex couples and families– the view of Ógra Fianna Fáil
Other issues -
Employment Equality Act
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Civil Registration Act
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Blood Donation Ban
Executive Summary Fianna Fáil, the Republican Party is committed to equality for all Irish citizens. In that regard, the Government introduced the Civil Partnership Bill in June 2009. In November 2009, Ógra Fianna Fáil members voted to support the introduction of the Civil Partnership Bill and the implementation of the Government commissioned Colley Report. This policy document outlines the position of Ógra Fianna Fáil in relation to marriage equality. The document summarises the Civil Partnership Bill, its contents and where we believe it falls short. Ógra Fianna Fáil support adoption rights for same-sex couples and call on the Minister for Health and Children to introduce legislation to allow registered same-sex couples to be considered for adoption. Ógra Fianna Fáil believe no person or couple has the right to adopt a child; but every child has the right to grow up in a family home, supported by parents, who are recognised as such by the state. In regard to marriage equality, Ógra Fianna Fáil call on the Government to follow through on its commitment to equality by providing for Civil Marriage for same-sex couples once the Civil Partnership Bill has been signed into law. The document concludes by looking at some other issues in this area regarding the Civil Registrations Act, the Employment Equality Act and the ban on blood donations by gay people.
“The Republic guarantees religious and civil liberty, equal rights and equal opportunities to all its citizens, and declares its resolve to pursue the happiness and prosperity of the whole nation and of all its parts, cherishing all the children of the nation equally” – Proclamation of the Irish Republic Introduction We live in a changing society. Ógra Fianna Fáil must be part of that change. Ógra Fianna Fáil subscribes to the republican ideals of liberty, equality and fraternity. Ógra Fianna Fáil is proud to support the Civil Partnership Bill 2009. It represents the most fundamental change to family law since the foundation of the state. Ógra Fianna Fáil firmly believes that the partnership bill is a key stepping stone to full civil marriage for all. The vast majority of countries which have introduced equal access to civil marriage have piloted some type of civil partnership or civil union arrangement before implementing full equality. However Ógra Fianna Fáil recognises that civil partnership is not marriage and that inequality is discrimination. Ógra Fianna Fáil pledges to continue the fight for marriage, while celebrating progress. Ógra Fianna Fáil understands the frustration of some to the Civil Partnership Bill but it believes that you should not sacrifice something that is better and an improvement just because it is not the best. Ógra Fianna Fáil support the view of Taoiseach Bertie Ahern TD, speaking in 2006: “Our sexual orientation is not an incidental attribute. It is an essential part of who and what we are. Sexual orientation cannot, and must not, be the basis of a second-class citizenship. Our laws have changed, and will continue to change, to reflect this principle”.
Two Decades of Progress 1988: A Fianna Fail Minister introduces the Prohibition of Incitement to Hatred Act, propelling Ireland to the forefront internationally in providing legal protection for lesbian and gay people with one of the first uses of the term “sexual orientation” in legislation anywhere. 1993: Máire Geoghegan-Quinn legislates to decriminalise homosexuality and embarks on equality based legal reform with gender-neutral laws and a common age of consent. 1997: Taoiseach Bertie Ahern signs the Treaty of Amsterdam. Ireland had played a central role in including sexual orientation as a protected ground in the antidiscrimination clauses of the Treaty of Amsterdam, ensuring that lesbian and gay workers across the European Union now enjoy the legal protections that have existed in Ireland for more than ten years 2000 & 2004: Introduction of the Equal Status Act which protects against discrimination in the provision of services. 2009: Dermot Ahern publishes the Civil Partnership Bill fulfilling commitments made in both the Programme for Government and the 2007 Fianna Fail election manifesto. It is expected that the bill will become law before the end of 2010. Ógra Fianna Fáil call
on
the
Minister
to
ensure
the
bill
is
dealt
with
expeditiously.
Civil Partnership Bill The Civil Partnership Bill was published June 26, 2009. The Bill is the most farreaching reform of family law in a generation, making profound changes to the law as it affects same-sex couples. The Civil Partnership Bill proposes two schemes, civil partnership and cohabitation. Civil partnership applies to people of the same sex who register their relationship, while the cohabitation scheme applies to all cohabitants whether of the same sex or of the opposite sex. The 2006 census estimated that there are over 120,000 cohabiting couples in the State, about one-third of whom have dependent children residing with them. To enter into a Civil Partnership, the two parties must be aged 18 or over. They must be of the same sex; however they do not necessarily have to be gay or bisexual. The procedures for entering into a civil partnership are similar to those for marriage. The main difference is that while either a marriage registrar or a religious minister may perform a marriage ceremony, civil partnerships can only be celebrated in the presence of a civil registrar. The couple must give three months written notice of their intention to enter into a civil partnership. Both partners must deliver this notice, in person, to a registrar of marriages. The partnership declarations must be made in public before a registrar and at least two witnesses. The Bill makes provision for a partnership ceremony. Civil partners will enjoy an extensive range of legal rights, entitlements and obligations to their partners. Many of these have not been recognised in Irish law up to this point.
The home in which civil partners live is described as the ‘shared home’ in the Bill. The Civil Partnership Bill prevents one partner from agreeing to a sale, lease or mortgage of the shared home without the written consent of their civil partner. Civil partners will be entitled to financial support from each other during their relationship. When a civil partnership is dissolved, the former civil partners will be entitled to seek orders relating to financial support, property rights, pension entitlements and a range of other things. On the death of a partner, the surviving civil partner will be entitled to claim from the estate of the deceased in a manner similar to how widows and widowers can at the moment. The Civil Partnership Bill makes it illegal to discriminate on the basis of their civil status, whether married, part of a civil partnership, divorced, widowed, separated, single, or a former party in a now dissolved civil partnership. The Bill ensures it is not possible to discriminate in the workplace or through the provision of goods and services on grounds that the person is or was in a civil partnership. There is no freedom of conscience provision contained in the Bill. The Bill extends the definition of a ‘member of the family’ contained in the Employment Equality Act 2004 to include civil partners and his or her children. A hospital cannot differentiate between spouses and civil partners in relation to visiting entitlements and consultation. Employers who give special leave to newlywed members of staff will also be required to make similar provision for new civil partners. Any benefit of employment that is extended to the spouses of employees will be extended to civil partners. In assessing pension entitlements, civil partners will be treated as if they were spouses. In this regard, the Bill amends over 130 pieces of legislation so that civil partners are treated in a manner identical to spouses.
Under current laws, if a person does not make provision for their non-martial partner in a will, then this person has no right to claim from his or her estate. Under the Civil Partnership Bill, civil partners will enjoy legal protection on the death of a partner in the same way a widow or widower can presently. The Civil Partnership Bill also provides for the dissolution of a civil partnership, in a manner broadly similar to divorce following the breakup of a marriage. A court will only grant the dissolution when it is satisfied that the financial security and postpartnership accommodation of both partners has been settled. Again, this is broadly, though not exactly similar to the rights of married couples who are divorcing. For technical reasons, certain matters will be dealt with in other legislation. The Minister for Justice, Equality and Law Reform has indicated that the same rights married spouses enjoy will be extended to civil partners in the areas of taxation, social welfare and immigration. The entitlement to a widow or widower’s pension or widowed parent’s grant will be extended to civil partners.
Equality for same sex couples and families – the view of Ógra Fianna Fáil Ógra Fianna Fáil view the Civil Partnership Bill as a progressive step forward which offers same-sex couples a broad range of civil rights, protections and obligations, currently enjoyed by married couples. However, we acknowledge that the Civil Partnership Bill is not equal to marriage, and that significant differences remain. While civil partners will have many legal rights, entitlements and obligations under the Civil Partnership Bill, they are not described as a ‘family’ unit. The use of the word ‘shared home’ rather than ‘family home’ is one such instance. Despite all the rights and obligations civil partners will receive once the Civil Partnership Bill is introduced, they do not enjoy all the rights of married couples. These differences relate to children and the relationship civil partners have to the children they live with; under the Civil Partnership Bill, this relationship doesn’t exist.1 Under current law, or the Civil Partnership Bill, a same-sex partner has no legal relationship with the biological child of his/her partner, even though they may be a de facto parent of this child. Various issues arise as a result of this situation: 1. Children living in a ‘shared home’ are not entitled to receive financial support from the non-biological parent following the dissolution of a civil partnership. 2. Childrens’ rights of succession if a civil partner of their biological parent dies. 3. The interests of children in a ‘shared home’ are largely ignored. 4. Unlike a divorce, a dissolution of a civil partnership can be granted without regard for the children of the individual partners. 5. The civil partner of the biological parent of a child cannot seek guardianship or custody of the child while the other guardians are living. 1
Under Section 11B of the Guardianship of Infants Act 1964 a person who is in loco parentis in respect of the child can apply for visitation rights. The phrase in loco parentis would include a civil partner who has lived with the child.
6. Civil partners cannot adopt together as a ‘family unit’, but rather must adopt separately. The Colley Report on Domestic Partnership, published in 2006, focused on three distinct types of cohabiting relationships; opposite-sex couples, same-sex couples and non-conjugal relationships. The report makes a number of recommendations on the rights of Irish citizens. In relation to children, and the rights of same-sex couples to adopt children, the report notes: “A single person may apply to adopt regardless of sexual orientation. Same-sex couples may, and do, foster children… same-sex couples who are married or in a full civil partnership should be eligible for consideration to adopt any child who is eligible for adoption.” Ógra Fianna Fáil support this call for adoption rights and calls on the Minister for Health and Children to introduce legislation to allow registered same-sex couples to be considered for adoption. Ógra Fianna Fáil believe no person or couple has an automatic right to adopt a child; but every child has the right to grow up in a family home, supported by parents, who are recognised as such by the state. The report explores a number of options for civil partnership and found that: “The introduction of civil marriage for same-sex couples would achieve equality of status with opposite-sex couples and such recognition that would underpin a wider equality for gay and lesbian people. Civil marriage offers legal certainty and predictability in terms of the consequences for each partner. It would be administratively straightforward as the registration arrangements already in place for marriage would apply and would also be straightforward in terms of recognition… Full civil partnership falls short of full equality for samesex couples as it excludes such families from the protection given to families in the Constitution.” Ógra Fianna Fáil support the views expressed in the Colley Report that civil partnership is not full equality. We welcome and support the commitment in the Renewed Programme for Government to review the legislation on guardianship, custody and access following
the current Law Reform Commission consultation on Legal Aspects of Family Relationships. These issues are of critical importance for same-sex families, and we urge the full inclusion of circumstances of same-sex couples and families in the review. We call for legal reform to allow for the extension of guardianship to civil partners. This would provide important protections for children being parented by same-sex couples enabling them to establish a legal relationship with their parents, and enabling civil partners to take on guardianship responsibilities. Ógra Fianna Fáil call on the Government to follow through on its commitment to equality by providing for Civil Marriage for same-sex couples once the Civil Partnership Bill has successfully passed all stages of Dáil and Seanad Éireann.
Other Issues
Employment Equality Act Section 37 of the Employment Equality Act allows religious organisations, medical institutions or educational institutions an exemption to equality legislation. If such an organisation wants to maintain the religious ethos or prevent the religious ethos from being undermined then it is not illegal under section 37 for them to discriminate. While Ógra Fianna Fáil recognises that religious institutions need to be able to maintain their ethos, it is anathema to the republican spirit of this party to allow doctors, nurses and teachers to be sacked solely on the grounds of their orientation. The situation is particularly acute when you consider that 92% of primary schools and the majority of hospitals in this state are under the patronage of the Catholic Church. Ógra Fianna Fáil calls for the Tánaiste & Minister for Enterprise, Trade and Employment to immediately repeal section 37 of the Act.
Civil Registration Act The main purpose of this bill was to provide to new legislative framework for civil registration and support the modernisation of the Civil Registration Service. However, there were unintended consequences. The Civil Registration Act 2004 is the only place in Irish law where marriage is defined as between a man and a woman. Ogra feels that this was a regressive step and calls for this to be amended using gender neutral references as has been past practice. This fact was referenced by Ms. Justice Dunne in Katherine Zappone and Anne Louise Gilligan vs The Revenue Commissioners, Ireland and the Attorney General.
Blood Donor Ban The Irish Blood Transfusion Service (IBTS) note that only 3% of the Irish population gives blood, 3,000 blood donors are needed each week and blood lasts for just 35 days. The recent shortage in blood donations have been well reported by the media. Yet, men who have had sexual relations with men are banned for life from donating blood in Ireland. This ban was introduced in the early 1980’s as a reactionary measure to the growing AIDS epidemic. With advances in screening procedures; today, this ban is nothing but discrimination. Risky sexual behaviour by a heterosexual will result in a temporary ban, while a homosexual male would be banned for life from giving blood. The IBTS policy is clearly discriminatory against gay men, and labels all gay men as being at increased risk of HIV. It singles out gay men from other groups in the community who have an increased risk of acquiring HIV. Ogra Fianna Fail recognise that the priority of the IBTS must be the primacy of the blood supply. There must be a supply which is safe and adequate and one in which the public have confidence. It is essential that all decisions are taken on scientific grounds and not as a result of political lobbying or a misunderstanding of the issue as an equality one. Ogra Fianna Fail are calling for a review of the current policy as we believe that the blunt classification of all men who have ever had sex with another man is neither fair nor best practice as it leads to the exclusion of many who could provide blood. Ogra believe that a scientific model restricting people engaged in “risky sexual practices” in a given timeframe prior to donation, such as has been adopted in Australia, should be considered. We urge the Minister for Health, and her European counterparts to remove this blanket ban on blood donation by gay men.
We also recommend that the Blood Service revisit the information they provide on their website and in other media to make sure that people understand that their policy is not based on homophobia.