The Eagle: Trinity College Law Gazette

Partnering with Trintiy Women in Law VOL 7, ISSUE 2

INSIDE THIS ISSUE: Gender Identity in Sports (p. 9) Trinity’s Own: Professor Frances Elizabeth Moran (p.13) Secrets, Silence, and Shame (p. 36)

Table of Contents Letter from the Editor (p. 2) Samantha Tancredi and Áine Doyle Accessibility, Technology and Intersectionality: The Legal Profession for Women During Covid-19 and Beyond (p. 3) Adepeju Ayoade The 2010s: A Decade of Firsts for Women in Law (p. 4) Laura O’Sullivan Interview with Celia Reynolds: From Trinity to Harvard (p. 6) Katharina Neumann Gender Identity in Sports (p.9 ) Áine Doyle and Julia Best Sex Disqualification (Removal) Act 1919: Empty Compromise or Pragmatic Milestone? (p. 12) Lucy Lu Trinity’s Own: Professor Frances Elizabeth Moran (p. 13) Muireann McHugh More than a Number: A Journey to LGBT+ Inclusion in the Irish Legal Profession (p. 15) Orla Hughes Reflections on Amy Coney Barrett (p. 19) Eoin Jackson Hold Up the Mirror: The Absence of Intersectional Feminism in Politics (p. 21) Georgia Dillon Filling RBG’s Shoes: The Next Woman of the US Supreme Court (p. 23) Megan McGavigan Interview with Niamh O’Shea, Partner at Maples Group (p. 27) Orla Murnaghan The Philosophy of Unpopular Laws: Poland and Abortion (p. 29) Ellen Hyland Mother and Baby Homes: Political Activism Ensures Survivors Access to their Information (p. 31) Martha McGarry Interview with Ursula Quill (p. 33) Emma Bowie Secrets, Silence and Shame (p. 36) Jill Rothwell

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Letter from the Editor

As an American, I am often discouraged by female representation in our government. When interning in Washington, D.C. in the House of Representatives, I was consistently shocked by the number of times I was the only female in the room; this proportion was not solely interns. In an entire congressional hearing, there was no female other than myself present in the room. I grew up being taught that neither law nor politics are gendered fields, yet here I sat, feeling remarkably uncomfortable and noticed by all. A microcosm for a worldwide reality, my experience in D.C. affirmed in my mind how much remains in the fight for equal representation in fields like law. Thus, it is with tenacious spirit and rich excitement that I introduce our first themed issue for this academic year: Women in Law. I am excited to share this issue with you, and I am so grateful to Trinity Women in Law for joining us in this endeavor. While the pieces before you may not be representative of thew whole of Trinity’s women, more specifically those who study law, this issue serves to grant a stage to voices that are trying to be heard. Within the confines of this publication rest ideas, theories, and opinions; a beautifully compelling consistency I found when reading the final version of this issue was the quality of drive. Women across the world have exceptional drive, and I am proud and honored to deliver this issue to you where you may bear witness to this theme and the many others that flood through the considerate words within.

Lastly, I would like to dedicate my work on this issue to my mom, who turned every “no” into “let’s do it anyway,” every “it is what it is” into “why is it this way,” and every doubt I have ever had into faith, encouragement, and love.

Best regards, Samantha Tancredi Editor in Chief The Eagle: Trinity College Law Gazette Established in 2019, Trinity Women in Law is a subcommittee within the college’s Law Society. Our aim is to promote discussion around topics like gender diversity and equality. As TWIL Officer, my hope for this year is to broaden the scope of what TWIL can discuss, by looking at topics like racial equality, LGBTQI+ equality, and the intersectionality of all these factors and how they can work to create systems of oppression. This is why we at TWIL are incredibly grateful to have been approached by The Eagle to collaborate on this issue. By releasing a ‘women in law’ issue of The Eagle, we are so happy to see them champion the idea that such a topic is more broad and all-encompassing than one might initially think. The way that the law interacts with our gender, race and general self-expression is something that TWIL aims to highlight.

In order to achieve these aims, we are hosting multiple events and talks throughout the year. Earlier this month, we spoke to Dr. Maeve O’Rourke about her work with victims of Magdalene Laundries and, in December, we aim to host a panel discussion about gender equality in the workplace. We are also establishing a new video series, in which we will speak to different people around the world who are working to promote the aims that TWIL so proudly strives to uphold. We have also recently begun our mentorship programme, which aims to show our students the extent of what women can achieve, and are achieving, in the legal sphere today. The celebration of the crucial work being done by women worldwide to shatter glass ceilings wherever they are found is something we at TWIL are so happy to do.

As the late Justice Ruth Bader Ginsburg so succinctly put it, “Women belong in all places where decisions are being made.”

Finally, I would like to thank the TWIL committee for all their hard work so far this year - I am so impressed by the drive and talent that they have displayed, particularly given that everything has to be done remotely this year.

I hope you’ll enjoy this special issue of The Eagle, and I would like to once again thank Samantha and everyone at The Eagle for allowing us to be a part of it.

All the best, Áine Doyle TWIL Officer

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Accessibility, Technology and Intersectionality: The Legal Profession for Women During Covid-19 and Beyond

By Adepeju Ayoade, JS Law and Business Having secured a summer internship at one of the top law firms in the country back in February 2020, while in second year, it felt like 2020 was only going to get better. Even though there were murmurs about Covid-19, there was an overriding feeling that all would be well before the summer and internships would go ahead.

Unfortunately, that was not true for everyone; some firms cancelled their internships while others deferred it until 2021. Luckily for me, Matheson did neither. The firm created an innovative programme using the Inside Sherpa platform (now Forage) to deliver a two-week virtual internship. While it was a shortened version of the planned four weeks, the quality of the programme was more than maintained.

During the two weeks we were introduced to life in a corporate law firm, with Managing Partner Michael Jackson giving the opening address. The programme was invaluable due to its presentation of the type of work a trainee solicitor does while also showing what to expect at further stages in your career. While it is important to understand the first steps of a traineeship, knowing what comes next is also key.

Although I had attended Matheson’s Career First Programme in first year, and visited the office in July 2019 on a week placement, I was stunned at the seamless transition to a virtual environment. The programme was challenging yet engaging, and we were put through our paces as would be expected of any trainee. Different departments in the firm assigned work to the interns with a sustained level of support, and I was surprised to find that my favourite was the work assigned by the tax department. Getting to grips with the task was somewhat complex, but that complexity made the work so engaging and inevitably elevated the level of experience gained.

Undertaking an internship in a global pandemic probably sounds scarier than it really was, but it must be said that it was an experience that proved to be extremely formative as well as rewarding, since it culminated in an offer of a training contract.

Importance of women in law The saying “you cannot become what you cannot see” is most certainly a cliché, yet there is no better way to encompass what it represents. This quote comes to mind for me when the importance of women in law is championed. Ideally, we should not be where we are; it should be part of the “norm” that women can rise in their legal careers at the same pace as their male counterparts. The unfortunate reality, however, is that this does not necessarily follow.

Looking at my educational journey, which did not follow a typical trajectory, the people that I met along the way provided me with the necessary encouragement and support to get to where I am now. Unfortunately, this is not the case for everyone.

In retrospect, without the people and inspiring women I have met, it would be difficult to imagine myself where I am today. On the other hand, I have also met many others who warned against pursuing a career in law, and that is disheartening. But it was not done out of spite: the intention was to help me avoid the imagined obstacles that would inevitably arise.

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The topic of “women in law” is not only about a balance of genders in the legal field. It is also about forming a society where headlines like “the first female CEO of…” or “the first woman of colour to be…” would not carry the shock value that it currently does. We should expect that a brilliant female student can go on to a fantastic career and that her progress will not be hindered by circumstance or prejudice. Encouraging women in law and supporting their journeys where possible, especially beyond the point of entry into law school, brings us closer to creating such a society. As a Black African woman starting out in her legal career in Ireland, the importance of being able to carve out a successful career is not lost on me.

“Ideally, we should not be where we are; it should be part of the “norm” that women can rise in their legal careers at the same pace as their male counterparts. The unfortunate reality, however, is that this does not necessarily follow.”

The 2010s: A Decade of Firsts for Women in Law

By Laura O’Sullivan, SF Law To reflect on the 2010s can be a rough walk down memory lane. The events that spring to mind for many people including: the election of right-wing leaders across the world, the growth of climate issues, Brexit. However, many trailblazing women in law offer hope in these unprecedented times Dr. Claudia Paz y Paz Dr Claudia Paz y Paz was named the first female Attorney General of Guatemala in 2010 and served until 2014. As a staunch defender of human rights, she pursued former high-ranking members of the Guatemalan government for war crimes committed during the Guatemalan civil war. Her efforts resulted in the conviction of former President Efrain Rios Montt on charges of genocide and crimes against humanity. During her time in office, five of the ten most wanted criminals in Guatemala were apprehended. Her dogged pursuit of justice for victims of mass human rights atrocities in Guatemala resulted in her being named amongst Forbes Magazine’s five most powerful women in 2012 and earned her a nomination for the Nobel Peace Prize in 2013. Her work as Attorney General garnered support from many Guatemalans who, as a result of being governed by corrupt politicians, and experienced the difficulties of the earlier civil war and high crime rates, had felt abandoned by their justice system.

Paz y Paz subsequently joined the Inter-American Commission on Human Rights, a group of independent experts who were responsible for investigating the 2014 mass abduction (and suspected murder) of forty-three students in Iguala, Mexico. Their inquiry highlighted key issues in the police investigation and cast doubt upon the true intentions of the Mexican police, alluding to a possible cover-up by the authorities.

Currently, Paz y Paz works for the Centre for International Justice and Law as the program director for Central America and Mexico, continuing her pursuit of justice and the rule of law.

Bayan Mahmoud Al-Zahran In November of 2013, Bayan Mahmoud Al-Zahran became the first official female lawyer in the history of Saudi Arabia. Previously, the law stated that women could only serve as legal consultants. She trained for three

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years as a legal consultant, initially studying domestic violence but later focusing on both criminal and civil cases.

Al Zahran’s perseverance and determination encouraged her to open Saudi Arabia’s first all-female law firm on the 1st of January 2014. She also brought the legal issues of Saudi Arabian women to court, namely in business and labour cases, and to fight for the rights of women in Saudi Arabia. Since Al Zahran obtained her license to practice law, over one thousand women have obtained their license to practice law in the country. Likewise, the Ministry of Justice in Saudi Arabia has noted that there has been an increase in female graduates specialising in legal fields across Saudi Arabian Universities. Her work has earned her the title of the seventh most powerful Arabian woman in 2015 as per Arabian Business Magazine. Furthermore, Al Zahran was included on Fortune magazine’s list of the world’s fifty greatest leaders in the same year.

Although the majority of people across Saudi Arabia do support her work, she has not been without her critics. Despite serious threats from her opposition, she has continued unfazed.

Haben Girma Haben Girma became the first deafblind student to graduate from Harvard Law School in 2013, illustrating that all women are welcome in the field of law. From 2013 to 2016, Girma worked as a disability rights activist as part of the not-for-profit law firm Disability Rights Advocates (DRA).

In 2014, Girma represented the National Federation of the Blind and others in a lawsuit against Scribd, an ebook and audiobook subscription service based in the US. Scribd had not been programmed to be accessible to blind people, a point which Girma claimed violated the Americans with Disabilities Act. She won her case against the company in 2017, with a settlement reached that included Scribd agreeing to provide content, in an accessible way to the blind. She is continuing to work at improving access to technology for people with disabilities, stating that “Technology has changed the lives of people with disabilities, our role as lawyers is to make sure that developers know how to build accessible technology.”

Her advocacy for the rights of Americans with disabilities received the attention of Former US President Barack Obama who, in 2015, invited her to the White House as one of the Champions for Change, an award given to those who have made an impact in their communities. He subsequently asked her to give the opening speech at the ceremony celebrating twenty-five years of the Americans with Disabilities Act, 1990. In her speech, Girma discussed the importance of accessibility to technology for people with disabilities. Former President Bill Clinton, Canadian Prime Minister Justin Trudeau and Chancellor Angela Merkel have all praised Girma, with Trudeau stating, “I am particularly grateful for your work to ensure that students with disabilities have access to the tools they need to thrive at school and beyond.”

Theresa Kachindamoto Senior Chief Theresa Kachindamoto, the tribal leader of the Dedza District with a population of over 900,000 people, was the first leader in Malawi to ban child marriages in her district. Her goal was to send girls back to school so that they could continue with their education. A survey by the United Nations in 2012 found that over half of the female population of Malawi were married before the age of eighteen, a fact that encouraged Kachindamoto to make a drastic change to the customary practices and civil code in Malawi.

Malawi prohibited child marriages in 2015 through the Marriage, Divorce and Family Relations Law. However, both customarily and constitutionally, child marriages were allowed if both parents to the union gave their blessing. Kachindamoto had found it difficult to persuade parents to stop permitting the customary practice of child marriages. Understanding the financial constraints driving these difficult decisions, she decided to focus on making systemic changes to the law. She commanded the sub-chiefs in her district to abolish childhood marriage and annul existing unions under customary law. In the areas where child marriages were continually practiced after the change in law, Kachindamoto fired four sub-chiefs, only reinstating them when the marriages that had occurred were annulled. Her work resulted in the 2017 amendment to Section 23 of the Malawi constitution, outlawing child marriages in Malawi completely.

As of 2019, she has managed to annul over 3,500 marriages through her tireless efforts to abolish child

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marriages, resulting in threats against her life. Although, to Kachindamoto, her message is still strong as she said, “I don’t want youthful marriages, they must go to school. We have now set our own laws to govern everybody within my area when it comes to marriages.”

Conclusion The work of these women represents only a fraction of the amazing ‘firsts’ that women in law have pioneered this decade, with countless others changing the world in their own ways including Malala Yousafzai, Greta Thunberg, Michelle Obama and more. As Senior Chief Theresa Kachindamoto says; if you “educate a girl…you educate the world.” Throughout a decade that has seen its fair share of negativity, it is important that we remember the instrumental and impactful work that these women are doing each day. However, many of these women remain unrecognised outside of their own circles. We must do better to highlight the importance of these firsts for women in law during this decade and the next.

Interview Celia Reynolds: From Trinity to Harvard

By Katharina Neumann, JS Law and Political Science “Apply first and figure it out later!”

That was the answer Celia Reynolds gave when I asked her what advice she would give young women aspiring to have an engaging career in law. Celia is a recent Trinity graduate, the former Editor-in-Chief of the Trinity College Law Review and a current LL.M candidate at Harvard University on the George Moore scholarship.

When asked about what three adjectives characterize her best, Celia replied “high-energy” and “interested” but also “chaotic”: “A lot of my friends would describe me as sort of chaotic and all over the place, pulling ideas from different areas.

I always tend to overload my schedule a bit and I like to do a lot of things during the day, not just college-related. I like to see a lot of people, I like to be busy, and I get really restless with downtime. I am also very passionate about law, all areas of it, and I move between different fields of interests a lot.” Her impressive academic achievements validate that this description is nothing but true. She decided to study law in the first place as she had overlapping interests in foreign policy, debating and current affairs, starting out with Law and Political Science in her first year at Trinity. However, with time she realized that she was more interested in the law subjects and thus she changed to pure law in her second year at Trinity.

Praising the academic structure at Trinity, the small courses, and the fact that it is easy to get to know everyone you are studying with, Celia talks very fondly about her experience at Trinity. “One of my favourite parts of my time in Trinity was doing the Law Review.

It is just nice to have this small team of people who are working on something together. I just found you share really nice experiences doing that.”

Besides editing the Trinity Law Review, one of her favourite memories from her university time was her Michaelmas term ex-

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change to Emory University, Atlanta, where she got her first taste of the American education system, fuelling her ambitions to go back later and pursue an LL.M there. ”I was lucky enough to have been surrounded by amazing and passionate women in Trinity especially as part of the FLAC society, which has connections with impressive female leaders such as Mary Robinson, but also provides an amazing platform for female academic writing and working in social justice.”

While Celia points out that she is disappointed by many commercial law firms in the country that believe a limit of 30 per cent women in high-ranking positions is enough, she explains that she personally has had many women to look up to during her legal career so far, especially at Trinity, but also working for several law firms. “I think it is also time to integrate types of role models that do not exist for other intersections of society, such as people of colour. I think there is a danger in focusing too much on the plight of women in accessing legal careers, to the exclusion of other socioeconomic factors that may necessarily limit access to law to a greater extent. This should be the next frontier for change in Ireland.”

Celia currently lives in Massachusetts, attending Harvard, one of the most elite universities in the world. But not only is Celia most likely living every law student’s dream, but she was awarded the prestigious George Moore Scholarship to realize it. The George Moore Scholarship is an all-Ireland scholarship programme which supports academically talented students who wish to undertake a Masters degree in the U.S.A. Celia’s story about how she realized her dream to go to Harvard is inspiring. While she always knew that she wanted to pursue a Masters after her undergraduate to further pursue her education after Trinity and to explore certain areas of law in greater detail, she never settled on Harvard – or any university really. As is the case with most, she was deterred by the high application fees and the time-consuming application, but with the help of professor at Trinity as well as graduates that went through the same process, she plucked up the courage to take the next step and apply. At this point, she explains, she had no idea how she would realize and fund an education like that, but her motto was – and this is the advice she gives to all aspiring law students – apply first, figure it out later. “By this, I mean you should apply to those positions that you have an interest in, even if you are unsure to get it or if you would take it up - as you don’t know how you will feel in the future or what the world will look like! Having more options when it comes to making a decision is great, and for me helps reduce my general anxiety of having to decide my career path immediately. That being said, applying to everything is not always possible, but you should seek as many options as you can!”

It worked out for Celia. Not only did Harvard offer her internal funding, which many universities provide, but she was also awarded the George Moore scholarship. Celia speaks very fondly of the application process.

“The George Moore Scholarship process is just incredible. It gives such substantial funding and is an amazing resource. The interview process was one of the most pleasant that I have had, because there is a tendency in some other places to try and make it difficult, to make sure the applicants prove themselves, but George Moore is so accessible.” The George Moore Scholarship provides highly-achieving Irish students with substantial funding for their postgraduate education, making a Masters programme more attainable for everyone, including Celia, who says that she “could not have done this any other way.”

At Harvard, Celia is pursuing a general Masters in Law, but she is concentrating many of her classes in refugee and immigration as well as “crimmigration” law, an area which she hopes to pursue in her future career. She describes the teaching process at Harvard as very engaging and praises the focus that Harvard puts on clinical education, even virtually in times of Covid-19. As a Harvard student she was able to meet some of her personal role models. “I am taking a class, called “Making Change where Change is Hard”, with Samantha Power and Cass Sunstein, who have always been individuals that I looked up to. Another one of my professors is the incredible Vicki Jackson who teaches comparative constitutional law and Janet Halley, my professor for Critical Legal Theory. I just think it is incredible when people go on to do one thing in a small area of law or social justice and are trying everything to fix it.”

There are two pieces of advice that Celia has for young women aspiring a successful career in law: Firstly, don’t be afraid to get involved with various societies and activities going on on campus – and in first year, everyone is nervous about speaking up, so you’re not alone. Secondly, apply for everything you are interested in and

“Human rights are inscribed in the hearts of people; they were there long before lawmakers drafted their first proclamation.�

-Mary Robinson

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figure out how you are going to pursue it later. This is an approach that brought Celia herself much success. Celia emphasises that it is important when going into law to be open to many career paths, as law provides valuable tools for criticising society and government and is thus useful in many areas of life. Clearly, she has followed her own advice, indulging in many different law-related activities during her impressive academic career. Celia’s passion for law is truly inspiring, and it is certain that she will do great things to make this world a better place.

Any students interested in the LL.M at Harvard or the George Moore Scholarship can feel free to reach out to Celia on Facebook or LinkedIn and she’d be very happy to talk!

Gender Identity in Sports By Áine Doyle, JS Law, and Julia Best, JS Law Editor’s Note: This article contains references to transphobia, which some readers may find distressing.

Introduction Last July marks the five-year anniversary of the introduction of the Gender Recognition Act 2015 (GRA) into Irish law. Section 10 of this statute allows an individual who is over the age of 18 to legally change their gender by statutory self-declaration, once they are “settled and solemn” in this decision. This monumental change in Irish law transformed transgender rights and has been praised by many. Sara Phillips, chair of Transgender Equality Network Ireland (TENI) has described the process as a user-friendly system that is, mostly, easy to navigate.

However, as Ireland moves forward in its recognition of equal rights for transgender people, it is evident that there is one area of life where trans rights, and especially the rights of trans women, have not been so willingly accepted: sport. This lack of acceptance is a problem which is not just confined to Ireland, but is rather a global phenomenon, and a widely debated issue. Admittedly, certain sports, such as the GAA, have established focus groups to promote LGBTQI+ equality within their games. However, it is arguable that these steps do not go far enough to address what is the core of the issue for trans people – that many sports are unwilling to allow self-identification to be enough to permit entry to competitions which are categorised along lines of gender. This article will discuss the reasons for this, and question whether this is compatible with the idea of self-declaration as set out in the GRA. It will then go on to consider how sports should approach such a politically charged, yet incredibly important, issue.

Rules and Experiences Although progress has been made in Ireland to recognise the rights of trans people, through the GRA for example, sporting bodies have been slower to embrace self-identification. For example, recently released World Rugby Guidelines advise that trans women should not be permitted to play women’s rugby at an elite level. Similar restrictions are placed on trans women by the International Olympic Committee, who, while not requiring gender reassignment surgery, do require that trans sportswomen prove that their total testosterone level has been kept below 10 nanomoles per litre for at least 12 months. Rules such as these clearly contravene the aims of the GRA; namely, that self-identification is enough to prove one’s gender. This results in a practical gap in the law, whereby a trans woman is legally a woman and yet cannot compete in women’s sports.

There are, however, those that take issue with these guidelines, and believe that rules surrounding trans women competing ought to be even stricter. To highlight again the example of the IOC guidelines, many argue that these requirements are in fact too lenient, as cisgender women’s testosterone levels are usually between 0.12 and 1.79 nanomoles per litre. Recent attempts to alter their guidelines were abandoned by the IOC when no scientific consensus could be reached.

However, the importance of reaching a consensus cannot be overstated, as barring trans women from sports can cause considerable levels of stress and pain. Even where trans and intersex women are allowed to compete, issues remain. For example, Caster Semenya, an intersex woman, won the 2009 800m World Championships by

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a wide margin. Her win, however, was overshadowed by discussions of her gender and whether or not she had an “unfair advantage.” Similarly, Rachel McKinnon became the first trans woman to win the UCI Women’s Track World Championship, but estimates that she has received more than 100,000 hate messages on Twitter alone since her win. The lack of clarity around trans women’s position in sport cannot remain so contested and vague, as it is submitted that such a lack of consensus allows transphobia to be thrown at trans women under the guise of concern for science and women’s sports.

Improvements A question then remains: how can a careful balance be struck between protecting trans women athletes’ rights and ensuring that cisgender women athletes are not put at an unfair disadvantage?

It is clear that both sides of this debate agree on one thing – more evidence around the issue of testosterone and the advantage that it gives to athletes is required. More specifically, it is submitted that individual sports must decide for themselves how much testosterone is advantageous given the particular skills required in that sport. Although some argue that the burden ought to lie with transgender athletes to prove that there is no additional advantage to them when competing against cisgender athletes, it is sports’ governing bodies which create the policies addressing these issues. Thus, it would follow that the burden should fall on them to conduct such research. In any case, it is crucial that any policy decisions be based on scientific evidence.

Ultimately, the rights and dignity of trans women must take priority. Trans athletes must be involved, at a policy-making level, in any decisions that will affect their ability to exist as their true gender, as they are legally permitted to under the law in Ireland. The balance to be struck must weigh heavily in favour of a human rightsbased approach, in order to respond to changing attitudes towards trans people and comply with the laws that govern their gender identity.

Conclusion Point Four of the International Olympic Committee Charter states that “the practice of sport is a human right.” The question of whether trans women should be allowed to compete as athletes in women’s categories is fundamentally a debate about equality and human rights – and it is not a debate which is going to resolve itself. Inclusion is a foundational principle in society, and it is important that such ideals extend to the arena of sport. This does not, however, mean that the inclusion of trans women in sport should go entirely unregulated.

Any regulations must be founded in scientific evidence in order to promote equality and fairness, but, crucially, transphobic agendas cannot continue to be perpetuated under the guise of a strict adherence to science. As was recently noted in the Wall Street Journal, “it can be powerful beyond measure to be accepted, and by the same token, psychically damaging to be excluded simply because of who you are.” Thus, while cisgender women athletes’ right to a fair competition must be taken into account, trans women’s right to compete must be accepted for what it is - a sign of society’s tolerance and respect, an ideal that the law, and sport, should always strive to display.

“The question of whether trans women should be allowed to compete as athletes in women’s categories is fundamentally a debate about equality and human rights – and it is not a debate which is going to resolve itself. Inclusion is a foundational principle in society, and it is important that such ideals extend to the arena of sport.”

“It takes courage and strength to be empathetic, and I’m very proudly an empathetic and compassionate leader. I am trying to chart a different path, and that will attract criticism but I can only be true to myself and the form of leadership I believe in.”

-Jacinda Ardern Photo courtesy of Ted Halligan JS Law and Political Science

Current

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Sex Disqualification (Removal) Act 1919: Empty Compromise or Pragmatic Milestone?

By Lucy Lu, SF Law and French The Sex Disqualification (Removal) Act 1919 begins: A person shall not be disqualified by sex or marriage from the exercise of any public function, or from being appointed to or holding any civil or judicial office or post, or from entering or assuming or carrying on any civil profession or vocation (…)

These powerful words represent a landmark decision in acknowledging women’s rights in civil life, a stride towards gender equality in the sphere of professional bodies during the early twentieth century. However, as with all motions acting as a basis for political and social reform, the Act itself does not come without criticism and extensive debate. Albeit encompassing a monumental decision by the British Parliament in an effort “to amend the Law with respect to disqualifications on account of sex”, this Act was passed after strenuous efforts by both the British Parliament and feminist groups. Furthermore, the substantive efficacy of the Act beyond its enabling premise was, and is, questioned by scholars, historians, and feminist groups alike. This article will seek to give an overview of the complicated history behind the passing of the Sex Disqualification (Removal) Act, its limitations, and its successes.

Bearing a somewhat controversial history, the Sex Disqualification (Removal) Act was passed in 1919 in response to a much more radical private members’ bill backed by the Labour Party, named the Women’s Emancipation Bill. This bill contained three clauses: to remove the disqualification of women for holding civil and judicial appointments; to include women on equal franchise; and to allow women to sit and vote in the House of Lords. This bill passed the House of Commons but was struck down when it reached the House of Lords. The Sex Disqualification (Removal) Act was thus drafted in response, both as a rival bill and as a compromise to the Women’s Emancipation Bill. The history behind the passing of the Act as such a “watered-down” compromise has arguably added to the common belief amongst academics that it is one which enables, not one which is rooted substantively in political standing.

In his book Women and the Women’s Movement in Britain, 1914-1959, Martin Pugh describes the Act as “a broken reed in the face of the resurrection of obstacles such as the bar on married women and further protective legislation.” This quote aptly encompasses the Act’s various limitations – limitations which could be deemed counterproductive in terms of progress towards women’s rights. Proviso (a) under Section 1 of the Act maintains that regulations could be made by Orders in Council. This meant that employers still had the right to set their own regulations in terms of the employment of women. Consequently, the civil service’s marriage bar was not suspended – women were obliged to stop working once they were married. Furthermore, proviso (b) stated that judges could control the gender composition of juries – they could request single-sex juries and/or request for jurors to meet certain criteria, which often excluded women. The limitations contained within the Act are severely detrimental in allowing for the development of women’s rights to be secured in a political sense. Evidentially, the Act enables, but it also constrains; it does not assertively provide, but instead merely allows.

Although the Sex Disqualification (Removal) Act 1919 has notable areas worthy of critique, it is not without its successes. The Act laid the foundations for giving women a chance to be included in joining professions and professional bodies, to sit on juries, to earn degrees. Women could now become accountants, vets, solicitors, barristers, and magistrates. The Act arguably benefitted women in the legal sector the most. Before the Act was passed, women had been attempting to practice law since the late nineteenth century, without success. Frances

Page 13 History Kyle was one of the first two women, along with Averil Deverell, to be called to the Bar of Ireland. In 1950, Mary Matthews became the 100th woman admitted to the Roll of Solicitors; and in 1964, Eileen Kennedy became the first female District Court Judge in Ireland. Women could also become magistrates and quickly fulfilled roles of Justices of the Peace, with Ada Summers becoming the first JP of England. By 1948 there were more than 3,000 women magistrates in the U.K. The passing of the Sex Disqualification (Removal) Act was undoubtedly a watershed moment for women in law, for the legal profession as a whole – it allowed for women to be immersed in professional bodies; they were then, by law, recognised as academic and professional equals to men. In 1923 the passing of the Matrimonial Causes Act granted women the right to seek for divorce solely on the grounds of adultery, a claim which previously only men could make. Five years later, the Representation of the People (Equal Franchise) Act paved the path for equal franchise by giving women electoral equality with men.

The 1919 Act was not met with enthusiasm by feminist groups and campaigners of gender equality, as one would normally expect; it is not one which wholly encompasses a societal yearning for change and reform.

However, it marked a step forward, and a step towards the recognition of the abilities of women to engage fully in society. Along with its enabling qualities, perhaps one could look at the Sex Disqualification (Removal) Act in a symbolic light, representing a hopeful future. The Bill, albeit a parliamentary compromise, was a stepping stone for equality, representing the gradual but nonetheless attainable result brought by determination.

Our work towards achieving gender equality is not yet over. In a 2019 survey conducted by the Council of the Bar of Ireland, it was found that discrimination and sexual harassment was experienced almost exclusively by females, and generally younger barristers. We must continue to work towards creating a welcoming legal environment for all to achieve their goals and aspirations, regardless of gender, sexual identity, and social or ethnic background. Feminism, if not intersectional, is ultimately futile. Improvements in legislation and policy lay the foundation for gender justice, but collective action must be undertaken by all to achieve and sustain true equality between men and women of all facets of life.

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Trinity’s Own: Professor Frances Elizabeth Moran

By Muireann McHugh, JF Law Born in Dublin in 1893, Frances Moran graduated from Trinity College Dublin as Senior Moderator in Modern Languages (French and English) in 1915. She was then awarded an LLB. Moran was the fourth woman called to the Irish Bar in 1924 and was later called to the English Bar in 1940, specialising in conveyancing. Additionally, Moran became the first Irish woman to take silk when she was made Senior Counsel in 1941, predating her English counterparts Helena Normanton and Rose Heilbron by eight years.

Moran was regarded as a prominent figure at Trinity, heavily involved in university events such as the Trinity Races. She was an interesting character, described as having a “strange mixture of progressive feminism and strong conservatism in the fields of politics, morality and social behaviour” by Dr. Robert Brendan McDowell and Dr. David Allardice Webb, modern historians at Trinity. Moran fought for gender equality at the college, and there is no doubt there was a feminist stance to her political views. Using her influence at Trinity, Moran did away with proposals for curfews for women at the university and for separate lunch facilities for men and women. Paradoxically, Moran adopted a conservative approach in her attempts to secure justice for women at Trinity.

She fought for gender equality through tactful persuasion, rather than through assertion. It would be fair to say that Moran was not an “activist” per se, but rather was a patient diplomat. In this sense, Moran was a uniting force of the feminist movement at Trinity, steering away from controversy and division in order to create a fairer university environment for women.

History Page 14 It was this unorthodox intersection of political views that allowed Moran to excel in her field. She displayed strength and confidence in her womanhood while maintaining a sense of respect for the status quo, leading her to be held in high regard by her male peers. It has been well established that, for many women in historically male-dominated circles such as law, politics and professorships, it was this approach that ultimately facilitated their success.

Moran became Ireland’s first law lecturer, holding the position of Reid Professor of Criminal Law in 1925, and becoming the first woman to be appointed to Dublin University Chair, a position she held until 1930. She was then appointed Professor of Equity at the King’s Inn in 1932 and Professor of Laws at Trinity in 1934. During her time as law lecturer at Trinity, Moran taught real property, equity and torts. According to Dr. McDowell and Dr. Webb, her lecture style was “business-like”, without regard for the “speculative, philosophical or social aspects of law”. Her obituarist in The Times stated that “sloppiness in law or in the use of English was not tolerated” by Moran during her lectures. Moran went on to become Regius Professor at Trinity in 1944 and held this title for some thirty years.

Interestingly, without having shown much previous regard to European politics, Moran travelled to Germany to attend the War Crimes Trials at Nuremburg. Upon her return to Ireland, Moran reportedly commented that the men on trial “looked so ordinary … courtesy of the Maples Group like men who had sat up all night in a third-class railway carriage.”

Not only was Professor Moran Trinity College’s first female Professor – she was also the first female member of the University Board. She was recognised for her efforts in promoting women’s higher education, particularly in the area of law, and was elected President of Dublin University Women Graduates Association from 1950 to 1952 and of the Irish Federation of University Women in 1949 to 1951. Moran also undertook several international tours as part of her role as President of the International FederaPhoto courtesy of TCD

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tion of University Women 1950 to 1953, a position she secured after making a striking impression on the organisation while attending the triennial conference of the body in Zurich in 1947.

Moran’s contribution to society cannot be underestimated. Her intelligence and passion for justice won her the respect of her male peers, and inspired generations of women in law, and other fields, to pursue higher education. Trinity now organises an annual studentship in the name of Moran, offering a grant to a law student for one year’s research in an area of law. In this way, the work of Moran as a woman in law has granted today’s women (and men) in law the opportunity to research, study and explore the various aspects of law, allowing the further advancement of a truly pluralistic and tolerant society.

The life and legacy of Moran serves as an example of how one woman’s work has a profound ripple effect on her descendants. Moran has inspired young women who study law at Trinity College, and further afield, to pursue careers as legal practitioners, law professors and board members. The work of Professor Frances E. Moran lies in the bedrock of gender equality in Irish legal circles, which in turn allows today’s women in law to flourish as students, legal practitioners and educators.

More than a Number: A Journey to LGBTQ+ Inclusion in the Irish Legal Profession

By Orla Hughes , JS Law With roots steeped in staunch Catholicism and traditionalism, Ireland’s journey in the acceptance and inclusion of people, regardless of sexual orientation, has been quite remarkable. The 1970s saw the Campaign for Homosexual Law Reform, founded by David Norris, spark the beginnings of the campaign for equality. From the recent decriminalisation of homosexuality in 1993 to the legalisation of same-sex marriage by popular vote just 22 years later, Ireland, as the first country to do so, has been said to have been at the “vanguard of social change”.

However, our journey is far from over.

Here are some numbers to reflect the LGBTQ+ population of Ireland and the legal profession: Up to 10.8 per cent of the Irish population have experienced same-sex attraction or identify as LGBTQ+.

Only 2.6 per cent of practicing lawyers are estimated to be LGBTQ+.

The difference in these numbers is not likely to reflect a supposed disinclination of LGBTQ+ people to pursue a legal career, or a lack of ability. It is perhaps reflective of the 33.3 per cent of Irish LGBTQ+ people who are not “out” to all of their colleagues at work. This begs the question as to what can be done in the legal profession to work towards embodying true diversity and achieving inclusion.

It should be noted at the outset that the fight for inclusion is very broad and encompasses people of all minorities. Although this article aims to look at inclusion in the legal profession through the lens of sexual orientation, this is not a standalone struggle. It is intertwined and entangled with the fight for inclusivity in other social categorisations such as race, religion, gender identity, disability and class. This concept of intersectionality should be kept at the forefront of our minds as we work towards building a more inclusive world.

Efforts to Eliminate Discrimination on the Basis of Sexual Orientation The Employment Equality Act 1998 and Equal Status Act 2000 have attempted to eliminate discrimination on the basis of sexual orientation. This was an adequate starting point, and certainly a step in the right direction.

However, despite these strides, discrimination of this nature is a little harder to stamp out simply through legislation alone.

Here are some more numbers for context, taken from the Oireachtas’ statistical profile of the LGBTQ+ com-

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munity in Ireland: One in five participants reported witnessing LGBTQ+ bullying in their workplace.

13 per cent considered leaving work due to negative treatment as a result of being LGBTQ+.

4.5 per cent actually did leave work due to such treatment.

Although action is being taken against homophobic workplace bullying, sometimes intolerance looks like subtle snide side comments, being left out, or negative verbal and nonverbal messages. These are microaggressions, and they are much harder to eliminate.

There is only so much that laws can do, as society needs to change. Mindsets need to change. In a world built by and for the majority, it is the responsibility of each individual to be aware of their privilege and to do their part in working to make the world a little better for others. There is no easy, straightforward way to cure discrimination – but it starts with one act.

Inclusion in the Legal Profession Although the numbers in the Oireachtas’ report are disappointing, efforts in the legal sector are promising.

For example, U.K. law firms performed well in Stonewall’s Top 100 Employers 2018 Workplace Equality Index – with three being named in the top ten, and sixteen named in the top 100. And although the Irish legal system may not be identical to that of the U.K., the vast majority of law firms in both countries have made commitments towards improving diversity and inclusion in their workplaces. These efforts are not simply performative, as data has proven again and again that it is in businesses’ best interests to promote diversity and inclusion.

Businesses’ Business in Inclusion Countless studies have shown that businesses are more innovative, productive, and profitable if they are inclusive. The legal profession is certainly no exception. If the moral justifications for inclusion aren’t enough, it has been proven that diversity increases profit, as employees are more motivated to contribute and innovate when they feel truly valued and heard. Further, when employees feel accepted, they are happier in the workplace and stay in their job longer – resulting in lower turnover rates in companies with diversity in the workplace.

What a collective can create and achieve is based on the individuals: where there is space for individuals to enter the workplace as their full authentic selves, people flourish and reach their true potential. It is the responsibility of employers, and fellow employees, to foster an environment where people can feel safe.

One of the hallmarks of oppression of any kind is a lack of understanding and a lack of education. Being an ally is about unlearning what you think you know and re-educating yourself. It’s about being aware of your privilege, understanding the systemic injustice in our society, and actively working to change it.

Conclusion This piece has used a lot of numbers. Numbers can sometimes be cold and distant, so here is some perspective.

Up to 10.8 per cent of the Irish population have experienced same-sex attraction or identify as LGBTQ+.

That is up to 405,500 people.

405,500 people is five Croke Park stadiums at full capacity.

405,500 people is 24 times the size of Trinity’s entire student body.

405,500 people is 1000 Edmund Burke lecture theatres at full capacity.

In your efforts to be inclusive, please think about the faces – the people – behind the statistics. We are more than just numbers, and we have valuable contributions for the legal profession, for the country, and for the world. Janet Stovall said that “diversity is a numbers game, and inclusion is about impact”. This could not be more true to life – true inclusion has the power to transform lives.

We’ve come such a long way, but we still have more to go. Following our historical trajectory, we can be hopeful that Ireland’s future is bright – and that we can work towards becoming a truly inclusive place to live and work.

Quotations: Our Top Picks

Please enjoy some favorite legal and political quotes!

“I was elected by the women of Ireland, who instead of rocking the cradle, rocked the system.”

-Mary Robinson “The one thing that doesn’t abide by majority rule is a person’s conscience.”

Atticus Finch -Harper Lee, To Kill A Mockingbird

“I know nothing of man’s rights, or woman’s rights; human rights are all that I recognize.”

-Sarah M. Grimke

“We apply law to facts. We don’t apply feelings to facts.”

-Sonia Sotomayor

“Courage doesn’t come by doing what everybody else says.

Courage does by what you know is right.”

-Nikki Haley

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Editorial

Reflections on Amy Coney Barrett

By Eoin Jackson, SF Law Editor’s Note: This article discusses the legal aspects of sexual harassment and abortion, topics which some readers may find distressing.

The recent passing of Justice Ruth Bader Ginsburg heralded the last gasp of liberal jurisprudence on the U.S. Supreme Court. In place of her fierce dissents, the Republican Party has had an unprecedented opportunity to rebalance the Supreme Court firmly in favour of the conservatives. It so happens that the Republican President, Donald Trump, has the Constitutional powers to nominate a candidate of his choosing to the Court, with the approval of the Senate. In order to achieve this, however, they needed a nominee of sufficient assiduity – a nominee with such a conservative view of the Court as to avoid any potential upsets when it comes to checking the progressive agenda. Into the breach steps Amy Coney Barrett.

Barrett has been a Judge on the U.S. Court of Appeals for the Seventh Circuit since 2017. She is also a prominent professor at the Notre Dame School of Law and has previously clerked for former Supreme Court Justice Antonin Scalia. A devout Catholic, she is known for reportedly having a personal opposition to abortion, and has become an icon of the Christian conservative movement. Her views and ideology have been heavily shaped

by Justice Scalia’s espousal of originalism as a means of judicial interpretation. This is where issues may begin.

Originalism: The Nail in the Coffin for Liberal Jurisprudence “Originalism”, as defined by Justice Scalia, means interpreting the Constitution in such a way as to reflect “what the words meant to the people who ratified the Bill of Rights or who ratified the Constitution.” The advancement of rights can therefore only ever be examined in the context of what their recognition would have meant in the context of the original meaning of the Constitution in the 1700s. This viewpoint saw Scalia vote against the decriminalization of homosexuality in Lawrence v Texas (2003). This method of interpretation was also used against the upholding of Roe v Wade (1973) a judgment that legalised abortion in Planned Parenthood v Casey (1992), and also in favour of gutting the Voting Rights Act in Shelby County v Holder (2013). Scalia and his acolytes have been accused of keeping the Constitution frozen in time – a time in which, ironically, many of originalism’s proponents including Justice Barrett were barred from serving on the bench. What does this mean for Barrett’s own time on the Supreme Court? She herself has admitted during her confirmation hearing that “I interpret the Constitution as a law, that I interpret, as a text, and I understand it to have the meaning that it had at the time people ratified it. So, that meaning doesn’t change over time.” As such, Barrett’s focus will be on ensuring that the recognition of rights is not out-of-kilter with that of the original drafters of the constitution.

This could have far-reaching implications for gender equality. Scalia was the only judge to dissent in United States v Virginia (1996), which barred state funded educational institutes from discrimination on the basis of sex.

Scalia did not believe laws that discriminate in such a manner should have “heightened scrutiny” applied as a standard of review, largely on the basis that it clashed with his originalist beliefs. It would therefore be unsurprising to see Barrett take the same approach given she has openly stated that “[Scalia’s] judicial philosophy is mine, too.” Were she to take such a narrow view towards sexual discrimination, it may allow for the opening of loopholes into existing laws that defend against sexual harassment, discrimination in the workplace, access to healthcare, etc. Many of these laws rely on a strict standard of review to ensure their enforcement, and were Barrett to lower this standard, it may become easier to justify “exceptions” that serve to undermine the core principle of the law. Nowhere is this more evident than in the concern surrounding Barrett’s views on reproductive rights.

Abortion: The End of Roe v Wade?

One of the most worrying aspects to Barrett’s jurisprudence is her approach to abortion. As mentioned above, Barrett is a renowned Catholic and has spoken at, and attended, many anti-choice events throughout her

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time in academia. Of course, this does not automatically entail an importation of those views onto the Supreme Court. Many judges can and do profess a personal faith that does not impact on their ability to interpret the law before them.

However, when we examine Barrett’s past record on the issue, it can be argued that she has failed to maintain this impartiality, giving rise to fears that Roe v Wade may struggle to survive her appointment. For example, in an article written for the Texas Law Review, Barrett outlined her position on the concept of “super precedents”.

Super precedents are cases that are so unquestioned by the public such that “no justice would seek to overrule them”. She then proceeds to list off examples of these cases, including Brown v Board of Education (1954 which declared laws segregating schools by race to be unconstitutional, and Helvering v Davis (1937) which upheld the constitutionality of social security. Crucially, she does not cite Roe as an example of such a super precedent. In fact, she cites the aforementioned Planned Parenthood v Casey (1992) case as a means of demonstrating how “the Court is quite incapable of transforming precedent into super precedent by ipse dixit.” No real argument is provided to support this assertion, but it’s quite notable that Barrett seeks to disparage the one case that clashes with her religious beliefs. She may not have mentioned it by name, but the dismissal of a case key to upholding the essential elements of Roe may have dire implications for the future of reproductive autonomy.

Barrett has a strange approach to the doctrine of precedent. She bases her belief in the concept on whether the “general public” has sought to challenge the ruling in question. Barrett ignores any principled use of stare decisis in favour of examining whether a minority (for that is what the pro-life community is in America) has ever objected to the ruling. Her article provides no definitive means of the appropriate level of “widespread public support” needed for a case to become a super precedent, but does note that it would effectively “immunise” them from future challenges. There is good reason to believe that any case in as partisan a landscape as the U.S. would go unchallenged is unthinkable, and may even be seen as an implicit means of endorsing attempts by conservatives to overturn Roe v Wade. Combined with her originalist approach to interpreting constitutional rights, there is little doubt that Justice Barrett would have much sympathy for those who argue that no right to choose should ever have been identified and that the Constitution should reflect the social values of eighteenth-century America.

Judicial Evidence of Concern Barrett’s own time on the U.S. Court of Appeal offers some warning signs for the future of abortion. Although she has never directly ruled on the issue, she has expressed a desire to review laws struck down for the obstacles they placed to abortion. In Planned Parenthood of Indiana v Commissioner of the Indiana State Department of Health (2018), she dissented from a judgment reviewing a decision to strike down a law banning abortion on the basis of race, sex, and disability and making provision for the burial of fetal remains. The Court itself was only asked to review the latter provision. However, the dissent makes repeated reference to a desire to review what it calls the “anti-eugenics” nature of the ban which Indiana was attempting to implement. Similarly, in 2019, the case of Planned Parenthood of Indiana and Ky. v Box saw Barrett vote in favour of rehearing a ruling that struck down another Indiana law that required parental notification where a minor was seeking an abortion, even when the minor in question had sought the consent of the Court as an express means of avoiding such a situation. Laws such as those above are becoming more common in conservative U.S. states, perhaps in the hopes that one day they will travel up to the Supreme Court and be used to overturn Roe. They do not place a ban on abortion in all cases, but make it difficult to obtain one such as to initiate anti-choice policies by proxy. In short, they are a Trojan horse for those seeking to end reproductive rights; a horse that Justice Barrett seems more than willing to let enter the gates of Troy.

Conclusion Barrett is a prime example of someone who has benefited from opportunities gained as a result of the women’s liberation movement, only to arguably use her new power as a means of shutting the courtroom door behind her. Of course, there is no definitive means of outlining what her judgments will be on matters concerning

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gender equality and abortion rights. However, her devotion to originalism, unorthodox approach to precedent and a pronounced anti-choice ideology offers a warning sign for women everywhere that this judge will be no friend to her compatriots. The battle is not yet over, but those who believe in equality should be ready for a legal showdown.

Hold Up the Mirror: The Absence of Intersectional Feminism in Politics

By Georgia Dillon, SF Law “I will not be lectured about sexism and misogyny by this man. I will not. And the government will not be lectured about sexism and misogyny by this man. Not now, not ever.”

This 2012 speech delivered by former Australian Prime Minister Julia Gillard created a mass media response at the time, but re-emerged in 2020 as a viral video, with various recordings of the speech amassing over 6.8 million views online. However, is the former Labour Prime Minister the feminist icon that Generation Z perceives her to be?

Gillard has had many ground-breaking achievements. She graduated from the University of Melbourne in 1986 with a Bachelor of Laws, and by 1990 she was the youngest partner in Werribee law firm Slater and Gordon, as well as one of the first women to hold this position. She continued to shatter glass ceilings in her transition to the political sphere. One of her first political tasks was to implement a quota of 35 per cent of the available seats in the Victoria Labour Party to be filled by women. In a landmark achievement, Gillard was appointed Australia’s first female deputy prime minister in 2007.

In 2010, Former Australian Prime Minister Kevin Rudd resigned, following a decline in support. Following this, Gillard was appointed as leader of the Labour party, and, as a result, the first female Prime Minister of Australia in 2010. In this role, she faced mass criticism from the press and from the people of Australia – for being too soft, too hard, too feminine for the Lodge, but also not feminine enough. She was “childless,” “unmarried,” “an immigrant” – all aspects of her personality that attracted abuse. During her campaign, numerous hateful and pornographic smear campaigns circulated the internet. She not only received misogynistic backlash from the people of Australia, but also from the very government for which she worked. From the beginning of her political career and throughout her tenure as Prime Minister, Gillard faced appalling and unprofessional treatment within her own party, as well as from the opposition. Famously, Labour Senator Bill Heffernan called Gillard “deliberately barren”. This statement was labelled by the Sydney Morning Herald as the “most sexist remark of 2007.”

Gillard did not crumble in the face of misogyny. She used her platform as Prime Minister to address sexism in Australia, but also within the government for which she worked. Most famously, she stood up to Tony Abbott, the leader of the Liberal-National Coalition who were in opposition at the time. Abbott had called for former Speaker of the House Peter Slipper to be removed from his position over sexist and crude messages he had sent to a fellow staff member. Around this time, Abbott himself attracted media attention for being photographed next to signs that called Prime Minister Gillard a “witch” and a “Bob Brown’s bitch”, a reference to the former leader of the Australian Green Party. Gillard was highly impacted by Abbot’s hypocrisy. She stated to The Guardian that: “I thought after everything I have experienced; I have to listen to Tony Abbott lecture me about sexism”.

Gillard’s frustration took form in an emotive speech which she delivered to fellow members of Parliament in October 2012. In her speech, Gillard responded unflinchingly to Abbott’s statement. She stated: “The leader of the opposition says that people who hold sexist views and who are misogynists are not appropriate for high

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office. Well, I hope the leader of the opposition has got a piece of paper and he is writing out his resignation. Because if he wants to know what misogyny looks like in modern Australia, he doesn’t need a motion in the House of Representatives, he needs a mirror.” This calling-out of Abbott’s “repulsive double standards” attracted widespread positive attention, both from the traditional media and social media. The speech has since resurfaced on social media this year, with a greatly positive response. She is praised for her intelligence, bravery, and resilience.

There are copious amounts of comments expressing regret and disappointment at how the Australian government, media and people treated Gillard, along with comments commending her intelligence and branding her a hero.

But is it fair to question whether Gillard perpetuates double standards herself? A comment on The Guardian’s upload of the speech, which has amassed 2.7 million views alone, states: “If the most powerful white woman in Australia feels this way, imagine us regular women of colour.” Although Gillard can be hailed as a feminist icon due to her trailblazing role in Australian politics, her feminist ideals throughout her time as Prime Minister were not a shining example of intersectionality.

What is intersectional feminism, and why is it so important? Founder, American Law Professor and Civil Rights Advocate, Kimberlé Crenshaw defines it as “a prism for seeing the way in which various forms of inequality often operate together and exacerbate each other.” This movement acknowledges that race, class, ethnicity, sexuality and immigrant status impact the way women experience discrimination and oppression. It creates a feminism that is more diverse and inclusive, from which all women can benefit from, not just a select few.

On the exact same day as the above speech, Gillard’s Labour party passed a welfare reform policy which had the effect of reducing the income of over 100,000 single parents, the majority of whom were women earning between A$60 and A$100 a month. She justified this reduction as part of a “welfare to work” scheme that encouraged women to return to the workforce. What Gillard failed to acknowledge, however, was that not all women have the same opportunities in the workforce. Yes, Australia was changing – but while this was evident in the fact that Gillard was appointed as the first female Prime Minister, it does not equate to change for every woman.

Statistically, women of colour may not enjoy the same privileges regarding employment and income. Research from the Australian Bureau of Statistics shows that “women from migrant backgrounds are nearly 11.9 per cent less likely to be employed than white women”. Gillard’s policies did not acknowledge this.

Moreover, single mothers in low-income jobs are less likely to be able to afford childcare, which would otherwise enable them to go to work. Women in these positions are not likely to see Gillard as a “feminist hero”, largely because her feminism, at least at that point in time, was not intersectional. It served to preserve a double standard, a feminism for white women of privilege, and a feminism for the marginalised women of Australia.

Since stepping down as Prime Minister, Gillard has dedicated her life to achieving gender equality. She has taken up tenure as the inaugural chair of The Global Institute for Women’s Leadership at King’s College London, a body created to address the underrepresentation of women in leadership positions across different sectors and countries. She is a patron of a CAMFED (Campaign for Female Education) which is a not-for-profit organisation dedicated to “eradicating poverty in Africa through the education of girls and the empowerment of young women.” In Australia, she funds several scholarships aimed at encouraging academically talented women with strong leadership qualities into leadership positions. She has also addressed intersectional feminism in an interview with Reni Eddo-Lodge, author of Why I’m No Longer Talking to White People About Race for her podcast A Podcast of One’s Own. In this podcast, Gillard acknowledges the differences between the Second Wave Feminist movement in which she grew up in, and the current Feminist movement. This interview addresses the importance of intersectionality in feminism, and how acknowledging our different privileges as women in relation to racism, classism and ableism does not “dilute” feminism, but rather enhances it.

It is evident that Gillard’s own feminism has become increasingly intersectional and inclusive since 2012, a growth that we can only hope for in all our world leaders. Feminism has a long way to go, and it would be for our collective benefit that those women in positions of power and privilege use those powers and privileges to uplift and support all women, especially those commonly left behind by contemporary feminism.

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Filling RBG’s Shoes: The Next Woman of the U.S. Supreme Court

By Megan Mc Gavigan, JS Law and Political Science Editor’s note: This article contains references to the legal aspects of abortion, which some readers may find distressing.

The nomination of Amy Coney Barrett to the United States Supreme Court has been one of the most controversial nominations in recent history. A polarising figure, her nomination raises complex constitutional questions and has sparked a media frenzy which includes alt-right religious groups reminiscent of those in The Handmaid’s Tale - something that was not lost on protestors to the nomination who decided to dress in red gowns when showing their opposition.

The death of the notorious Ruth Bader Ginsburg sent shockwaves through both sides of the aisle. While politicians at either ends of the ideological spectrum grieved the loss of such a great justice, there was also the inevitable nomination to consider. RBG recognised the political implications of her passing, with her granddaughter confirming that her dying wish was that her seat not be filled until the American electorate had spoken.

The incumbent President wasted no time in nominating, as Republicans were keen to shift the Supreme Court to a 6-3 conservative majority. At 48 years old, Coney Barrett would be the youngest on the Court – a generational justice. The American Constitution assigns the role of nominating a Supreme Court judge exclusively to the President. The Senate Judiciary Committee then conducts hearings, during which they will question the nominee about their career history, judicial philosophy and general suitability for the position. The result of the Committee vote, along with the findings and recommendations of the hearing, will then be passed onto the full Senate for the final ratification. As of 2017, the nomination requires a simple majority of 51 votes from the Senate. This is in contrast to the previous super majority of 60.

Any weaknesses in this process are highlighted when a nomination falls in an election year. This is guaranteed to spark resistance from the opposing party, who will invariably argue that the confirmation of a justice should be held off until after the presidential election. As the current administration comes to the end of its term, it seems somewhat illegitimate that it should decide something of such magnitude and with long lasting implications, when their mandate is at the end of its course. In this case, these questions of legitimacy are magnified as the nomination falls so close to Election Day. At the time of writing, more than 61 million Americans have cast their vote. This points to record turnout. The global health emergency has meant that mail-in ballots are more popular than ever – and many have already exercised their civic duty in this way. Many opposing the nomination feel that proceeding with the confirmation of Amy Coney Barrett is undermining the sovereignty of the American people and their right to vote. Awaiting the election result before confirming any nominee is in keeping with the will of the majority of the U.S. If the majority of the votes already cast are for the Democratic candidate, the confirmation of Coney Barrett is defying the basis of majoritarian democracy. Ideally, the makeup of the Court should reflect the varying ideologies held by the American people.

Furthermore, there is concern that Coney Barrett was not subject to sufficient scrutiny as the Republicans vowed to get the confirmation through before 3 November. With a Republican majority in the Senate, some feel that it was a done deal – a simple numbers game, reinforcing stereotypes of artisan voting and soft ball hearings.

These concerns are not only shared by liberals – in 2016, Republicans were just as vocal in opposing a nomination to the Supreme Court so close to an election. When Antonin Scalia passed, President Obama’s hopes of getting a justice confirmed were not realised as prominent Republicans did not hesitate to raise the arguments mentioned above. They stated that any appointment by the President in his final year should be null and void.

Senator Lindsey Graham even went so far as to say, “use my words against me” if a similar situation should arise during a Republican presidency. As a result, the Judiciary Committee, with a Republican majority, refused to

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Page 24 proceed with any hearings which stifled the nomination entirely. It is worth noting that Obama’s nomination of Merrick Garland was announced eight months out from the 2016 election.

The most recent vacancy of the Supreme Court created a perfect storm of controversy and chaos. A liberal hero, RBG left a remarkable legacy to fill. It would be fair to say that any nomination proposed to take this seat would be under intense scrutiny from liberals, and none more so than Amy Coney Barrett. Widely celebrated in conservative circles, Coney Barrett is praised for her conservative views on reproductive rights and LGBTQ+ rights, among other issues. It is feared that the appointment of Coney Barrett to the Court will endanger a lifetime of work that Bader Ginsburg so bravely fought for. Critics such as Louise Knott Ahern have remarked that “Ruth Bader Ginsburg is going to be replaced by a woman who walked through every door that Ginsburg opened for her so she can promptly use her position to shut them all for others behind her.” This fear stems from a plethora of statements made by Coney Barrett herself. As her hearings before the Senate Judiciary Committee revealed little about her world views, arguably the best way to predict how Coney Barrett will rule on upcoming cases is to look back on her judicial record and publications.

With regards to the issue of abortion, Coney Barrett has made it clear that she is not in favour. In her role as a judge, she has previously voted to limit the circumstances in which abortions can be given and has voted in favour of a law which requires notification of the parents of minors seeking abortions without exceptions in an Indiana Court of Appeals case in 2019. She has also been noted for stating that abortions are “always immoral”.

For these reasons, it is widely believed that she is opposed to the landmark decision of Roe v Wade and will limit this decision should it come before the Supreme Court.

Her stance on LGBTQ+ rights was brought into question during a recent hearing as she has previously given a lecture for the Blackstone Legal Fellowship, a conservative training programme for Christian lawyers who oppose same sex marriage and LGBTQ+ rights. In addition, the lecture was sponsored by Alliance Defending Freedom (an LGBTQ+ hate group). Coney Barrett also signed an open letter in 2015 opposing same-sex marriage.

Certain media outlets have taken Coney Barrett’s religious affiliations and ran, leading the public to believe that her agenda is to have all women as handmaids. On the other hand, the fact that RBG’s successor is a woman has been welcomed. The problem is that these particular women are not interchangeable. RBG was an audacious fighter for equality and an avid feminist, whereas Coney Barrett has expressed that she is in favour of restricting women’s existing freedoms, such as access to affordable healthcare, as well as limiting reproductive rights and bodily autonomy. President Trump has vowed to only nominate a justice who is in favour of striking down the Affordable Care Act (ACA) and is opposed to Roe v Wade. Through various lectures and professional writing, Coney Barrett has heavily suggested that these are her views.

It is also important to note that feminism is for the advancement of all, not just for women. RBG epitomised this, taking on cases fighting for men to avail from equal benefits, showing that unequal treatment hurts everyone. This case shows that not all women will be for the advancement of all women. While Coney Barrett has made it clear that she would not let her personal beliefs interfere with her role as a judge, it is considerably difficult to see how they would not compromise her impartiality. With significant cases due to come before the court in the near future, and potential cases surrounding the upcoming Presidential election, the fears of opposers could be realised in the very near future. Confirmed by a 52-48 vote, showing the resistance of the Democrats to let what they see as an injustice proceed; and the persistence of the Republicans to seal a conservative court for the foreseeable future. It has been an historic nomination.

“It is also important to note that feminism is for the advancement of all, not just for women. RBG epitomised this, taking on cases fighting for men to avail from equal benefits, showing that unequal treatment hurts everyone.”

“Fight for the things that you care about, but do it in a way that will lead others to join you.�

-Ruth Bader Ginsburg

“When the whole world is silent, even one voice becomes powerful.�

-Malala Yousafzai

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Interview with Niamh O’Shea, Partner at the Maples Group

By Orla Murnaghan, SS Law and Political Science Why did you decide to study law? Did you ever see your gender as a barrier to entry into the profession?

One of the reasons I chose to study law is because I wanted to work with and help people, in an advocacy role. While I was in secondary school, I did a couple of weeks of work experience in a solicitor’s practice and I liked the variety and that no two days were the same. I also liked the idea of the various career options open to law graduates.

I never saw my gender as a barrier to entry. I am very lucky in that my parents always encouraged me to pursue a career from an early age. When I studied law, there was a greater number of females than males in both my college year and in Blackhall, and I suppose without even noticing it, this probably made me feel empowered.

How did you find studying law at university? Did it meet your expectations?

I initially studied medicine for a year and after deciding it wasn’t for me, I switched to law. I found studying law to be both interesting and challenging. I enjoyed the fact that law is about problem-solving and there may be many different ways to solve that problem; but it is up to you to find the solution you think is best, based on how you interpret the facts – in that way, studying law can be thought-provoking and it can require innovation and creativity. I also enjoyed the less hectic schedule in college in comparison to medicine (although that is something I have certainly made up for since I started practising!).

Photo courtesy of the Maples Group

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Why did you decide to pursue a career in corporate law? What attracted you to working with the Maples Group?

I undertook some work experience in corporate law firms after completing my law degree and from this, I decided that corporate law was for me. I loved the buzz of working in a big office in a big team. I found the corporate world really exciting and loved the idea of not only advising on the legal aspects of something but also needing to understand a client’s business to meet their commercial needs.

The two main reasons I chose to join the Maples Group are: Its genuine global reach. The Maples Group is unique in terms of its international reach, and it has a strong domestic base here in Dublin. We’re more than just a law firm – we’re a truly global organisation providing legal, funds and fiduciary services to clients across five legal jurisdictions with 18 global locations in total. Access to a global group brings a lot of benefits and opportunities both to our clients and employees including secondment opportunities at our global offices.

It’s also a very progressive firm. The Maples Group initially entered the Irish market in 2006 and we are now very well established with over 400 people here in Dublin. We are a full service corporate law firm providing a wide range of specialist services to domestic and international clients. The Maples Group is constantly embracing innovation by ensuring that our team is consistently upskilling and exploring new sectors and service areas.

For example, over the past couple of years, we have grown our expertise in specialist sectors such as life sciences, employment, data and technology. We also know that this continued focus on challenging ourselves benefits all of our clients and leads to the highest quality legal advice possible You work in Maples’ Funds and Investment Management department. Is there enough female leadership - and indeed female representation - in the financial services sector?

Yes, in 2011, I qualified and I joined the Maples Group’s Funds & Investment Management team as an Associate before becoming a Partner earlier this year. Diversity and inclusion is a key focus for our firm, which is demonstrated, not only by our statistics, but also through a number of dedicated programmes and initiatives.

In the funds team, for example, 36 per cent of our Partner group are female with 46 per cent of lawyers in the department being female. I firmly believe that embracing diversity and inclusion fosters a better culture of sound decision-making, leading to enhanced results and better all-round performance.

Do you think attitudes towards gender equality in the workplace have changed in recent years, based on your own experiences? Are women still seen as being “forced to choose” between their careers and their private lives? Does the law accurately reflect these changes?

Based on my own experiences, yes, I think attitudes towards gender equality have certainly changed in recent years. I have seen the Maples Group grow significantly since I started my career and it’s great to see that now over 30 per cent of the partners in Dublin are female and that there is a fifty-fifty gender balance across the firm.

Indeed, across the financial sector, I have also seen an increased push and drive for gender diversity in the last few years, which is encouraging. There is also an increased awareness of the importance of diversity on fund boards which is proven to improve and enhance corporate governance.

In my experience, it is possible not to have to choose between your career and family, but in order to do this, you need to have a strong support network both in your personal life and professional life.

You recently were awarded the “Rising Star” award at the European Women in Business Awards - can you tell us more about this experience, and what it represents for Irish women working in law?

The Women in Business Law Europe Awards recognise leading women for their contributions to the practice of business law along with the firms that have developed the most progressive initiatives towards diversity and inclusion from throughout the continent.

It was a privilege to win this award and it was an honour to be recognised by Euromoney Legal Media Group

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among a number of other very accomplished lawyers across Europe.

What makes a successful corporate firm partner, in your opinion? What advice would you give to young women considering a career in a commercial law firm?

In my opinion to be a successful partner, you need to be hardworking, motivated, commercially minded, and of course, be a great team player.

My advice would be if you are excited by the prospects of new daily challenges, becoming a key adviser to large domestic and international businesses, and have a strong willingness to learn and succeed, then commercial law is for you!

“My advice would be if you are excited by the prospects of new daily challenges, becoming a key adviser to large domestic and international businesses, and have a strong willingness to learn and succeed, then commercial law is for you!”

The Philosophy of Unpopular Laws: Poland and Abortion

By Ellen Hyland, JS Law and Political Science Editor’s note: this article discusses the legal aspects of abortion, which some readers may find distressing.

A recent decision by a Constitutional Tribunal in Poland struck down a subsection of a 1993 law permitting abortion in the case of severe foetal abnormalities, which made up 98 per cent of all abortions. While abortion was never fully legal in Poland, the Tribunal’s decision means that the procedure is now banned in all cases except rape, incest, or a threat to the mother’s life, as provided for by Article 4a of The Family Planning, Human Embryo Protection and Conditions of Permissibility of Abortion Act of 1993.

Elected by the people in 2019, the Law and Justice Party has been suffering from a crisis within its coalition, as members of United Poland, a junior partner to the Law and Justice party, have been advocating for far-right policies. This advocation includes withdrawal from the Istanbul Convention on violence against women. Some view the decision to allow the courts to decide on this abortion question as trying to appease this vocal minority, especially since a majority of the Court were nominated by Law and Justice. The Catholic Church also has the ear of the party, and has voiced its disapproval of liberal abortion laws in the past. It is important to note here that Poland is not a theocracy, as is shown by Article 25.3 of the Constitution: The relationship between the State and churches and other religious organizations shall be based on the principle of respect for their autonomy and the mutual independence of each in its own

sphere, as well as on the principle of cooperation for the individual and the common good.

This change was made despite a clear majority of Poles opposing tighter restrictions on abortion, as is shown from various opinion polls over the years. The courts and the government saw the protests, saw the women begging for their reproductive rights, and they still allowed the 1993 law to be struck down. This is a stark contrast to the infamous eighth amendment to the Irish Constitution, which was inserted by the people in 1983, and

Editorial Page 30 repealed by the people in 2018 – by means of a popular referendum as provided for under Article 46. Arguably, it is almost a non-sequitur that access to abortion has been even further restricted to women in the presence of clear dissent, which shows that representative democracy can at times fail to be reflective of the general public’s beliefs.

This begs the question: What is the point of enforcing laws that are so contrary to public opinion? This article will explore the different philosophies that underpin the creation of law, and how they apply to the decision of the Tribunal.

Harm Principle The harm principle in law states that it is the consequence of an action rather than its moral quality that should be used to determine whether something should be criminalised. The concept of autonomy is heavily entrenched in this philosophy, as acts which do harm to you and not others are seen as acts which should not be criminalised.

The Polish Constitutional Tribunal was focused on the right to life of the foetus, with the head of the Tribunal remarking that the 1993 law “makes the right to life of an unborn child dependent on his or her health.” The Members of Parliament referred the decision to the Court on the basis that abortion on the grounds of severe foetal abnormalities would allegedly amount to “eugenics”. These arguments show that the Tribunal was thinking about the impact of the law on the foetus, without regard for the impact on the mother.

The flaw in this logic is that the mother and the foetus cannot be considered separately, as a law which affects one must affect the other since they are physically connected. Moreover, various constitutional grounds could be given to allow the mother bodily autonomy, such as Article 41.1 of the Polish Constitution which ensures the right of personal inviolability. A 2018 UN report stated that further restrictions on abortion would violate a person’s human rights, and specifically mentioned that women’s “rights to a private life and to health” would be risked.

Therefore, using the logic of the Constitutional Tribunal, it is arguable that the mother could be said to have her Article 41.1 rights infringed upon by striking down the 1993 law. This paradox suggests that other philosophies must have also been present in the court’s decision.

Paternalism Paternalism in the law-making process is a philosophy that asserts certain publicly unpopular laws can be legitimised based on the individual’s own good. A common example of a paternalistic law is seatbelt requirements.

Could Poland’s abortion decision be considered paternalistic? This is unlikely, as a Korean study has shown that unintended pregnancies carry with them a 20 to 22 per cent higher risk of maternal depression. It is also clear that the decision will not stop abortion, as it is estimated that between 80,000 and 120,000 Polish women travel abroad to avail of abortion services every year. This fact was also made evident in the campaign to Repeal the Eighth Amendment, where it was estimated that 170,000 women availed of abortion services abroad since 1980.

It is therefore unclear how this decision could be for the mother’s “own good”.

Moralism This philosophy allows the State to view certain acts as inherently moral or immoral, but where do these morals come from? The Irish Supreme Court has viewed these morals as coming from Christian dogma, as was evident in the majority judgement in Norris v Attorney General (1984), in which homosexuality was seen as contrary to Christian moral teachings. The Court then moved towards more broad Christian morals in their judgments, such as the idea of love and acceptance, and today considers immorality to be what “every right-minded person is presumed to consider to be immoral” (Lord Devlin).

In light of these considerations, it is worth casting an eye to the preamble of the Polish Constitution. The Constitution was established in recognition of the government’s “responsibility before God or [their] own consciences.” It is also written for [b]oth those who believe in God as the source of truth, justice, good and beauty, as well as those not sharing such faith but respecting those universal values as arising from other sources.

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This extract makes it clear that religion is not the only source of law, nor does it only exist for those who believe in God. In fact, the wording of the Preamble appears to endorse tolerance of those who do not necessarily share one’s beliefs. It is evident that the Constitution was shaped with the public conscience in mind and for it to play an equally important role as religion in the legislative process. A Tribunal, when interpreting laws through the lens of the Constitution, should consider these factors when making its decision. Since the public conscience has voiced, both through opinion polls and protestation, that access to abortion should be liberalised, it is arguably contradictory to deny any agency to that voice.

Conclusion The Polish decision on abortion has consequences more serious than its subjugation of women. It has allowed the Catholic Church to become more important to the reading of the Constitution than the harm that oppressive laws cause, the “own good” of its citizens, and the morals of these citizens that are arguably being ignored. In 2018, the women in Ireland were heard and stood up for their reproductive rights, with the majority changing history. Now, in 2020, Polish women have no such opportunity, leaving their rights uncertain for the

Mother and Baby Homes: Political Activism Ensures Survivors Access to Their Information

By Martha McGarry, LL.M Laws Editor’s Note: This article discusses the recent Mother and Baby Homes investigations, which some readers may find distressing.

On Thursday, 22 October 2020, the Dáil passed the controversial Commission of Investigation (Mother and Baby Homes and Certain Related Matters) Records, and Another Matter, Act 2020. Five days later it was signed into law by President Michael D. Higgins.

The legislation allows for sealing of the records of the Commission of Investigation on the Mother and Baby Homes. Pleas to postpone the passing of the Bill, in order to subject it to proper legislative scrutiny, were ignored.

The Bill passed with 78 votes to 67, with the three governing parties forming most of the winning votes. Bar two, all opposition TDs voted against the Bill. It is hard to escape the sentiment that party politics decided the matter, rather than justice, empathy, or remorse.

When a group of friends and I emailed our local TDs on the issue, we all received the same ‘copy and paste’ reply. The reply expressed the sentiment that if the Government did not pass the Bill now, this information would be lost forever; a threat so grave one could almost accept it. This rationale attempts to spin the legislation as being in the interests of survivors. However, mirroring their incarceration in these homes, the wishes of surviving women were ignored by the impugned legislation. The e-mail also referenced various legislative provisions which indicated that delaying the Bill was simply impossible. The reality of the legal debate was, however, much more nuanced.

The Legal Debate The new Act does not explicitly mention the 30-year period. However, Minister for Children Roderic O’Gorman had made clear that would be the result of the Act. The legislation also provides for specific information to be transferred to the Child and Family Agency, Tusla. While the legislation does raise legal issues, it was never clear why a blanket ban, which refuses the survivors their own transcript, was needed to satisfy those legal

Ireland Page 32 requirements. Nor did the Government explain why some information can be transferred to Tusla, but cannot be transferred to survivors. This discrepancy left severe gaps in the legal argument of TDs who claimed there was no other option than to seal the records.

Commissions of Investigation Act 2004 The Commissions of Investigations Act 2004 (The 2004 Act) provides the legal basis for the Commission of Investigation into Mother and Baby Homes. It is based on this Act that TD’s argued that the records had to be sealed. Dr Maeve O’Rourke, Human Rights lecturer at NUI Galway and Director of The Clann Project, is among those who argue that the 2004 Act does not provide a sufficient legal basis to limit access to one’s own information. Nevertheless, she argues, the issue could have been dealt with by an Act of the Oireachtas: It is not acceptable to railroad people into accepting ‘sealing’ for 30 years when clearly this Bill shows (by sending some of the archive to Tusla) that the Oireachtas can legislate to make it otherwise.

Given the dark cloud that the Mother and Baby Homes has cast over Irish history, affecting countless families’ lives, enacting a Bill that would ensure survivors fair access to information would be a more justified response. Not doing so left many with the impression that the Government is indifferent to the continued suffering of victims and their families.

EU Regulation Article 23 of the General Data Protection Regulation (GDPR) provides that restrictions to access of personal information are only justified where they respect ‘the essence of the fundamental rights and freedoms and [are] a necessary and proportionate measure in a democratic society.’ EU law is superior to national law, meaning that the Irish Government cannot enact national laws which contradict EU Regulations. Any attempt to justify a blanket ban under Article 23 is unlikely to withstand scrutiny. The Irish Government transposed the Regulation into law with the 2018 Data Protection Act. Section 198 of this Act amended Section 38 of the 2004 Act. As the law currently stands, restrictions on access to personal data are only lawful where such access is “necessary and proportionate to safeguard the effective operation of commissions and the future cooperation of witnesses.” This provision may restrict publication to the public at large. However, it is difficult to fathom a “reasonable and proportionate” justification to deny survivors access to their own data.

Following the enactment of the legislation, the Irish Data Protection Commission confirmed that a blanket ban on releasing information is contrary to EU law. This intensified pressure on the Government to find a more satisfactory solution. Furthermore, at least a significant proportion of information could be anonymised so that it would not jeopardise future witness cooperation. It is clear that the legal landscape of the issues was not as clear cut as the Government initially claimed.

Both the flawed legal argument and the gravity of the issue led to widespread protest. A petition set up by Aitheantas – Adoptee Identity Rights, received over 190,000 signatures when the Dáil met again to discuss the controversy. The conclusion of this meeting was to put in place a mechanism for survivors to access their own information. Personal data will be released where survivors can pass a two-part test. This test considers whether the request impacts on rights and freedoms of others, as well as whether the restriction is necessary or proportionate to safeguard the operation of commissions and future cooperation of witnesses. The burden will be on the Government Department to show where this test is not satisfied. While Minister O’Gorman acknowledges that this does not solve all the issues of survivors, it is a welcome step forward.

Social Democrat TD Holly Cairns, an active voice on the issue, has called for continued oversight to be sure that the promises of the Government are fulfilled. The new approach taken by the Government is a direct response to the campaign that was fuelled by the survivors, human rights activists and the public. It is proof of the power of political activism in the modern world.

Conclusion Within any system of Government, there will inevitably be some issues that get overlooked simply because

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of the sheer volume of work and relatively limited resources. Legislation, for instance, does not always get passed when it should. The mistreatment of these women and their families should never have been one of those issues. To rely on the 2004 Act now and claim that action must be taken by 30 October (a self-imposed, arbitrary deadline), or the information will be gone forever was not just bad governance. It was ignorant of our country’s fraught past. An issue of such grave national importance deserves a genuine effort to reach a solution that would satisfy both survivors and the law. The hard work of human rights activists and the bravery of survivors has

Interview with Ursula Quill

By Emma Bowie, SF Law

Your path into law has been quite unique and varied – after studying English and Irish at Trinity, you pursued a higher diploma in psychology at UCD, and then undertook the King’s Inns Diploma in Legal Studies. Why did you decide to pursue a legal education after your initial two degrees?

For my undergraduate studies, I decided that I would do the subjects which I enjoyed in school, and enjoy my college years. In school I had thought about doing law, but I didn’t think it was going to be as interesting as it actually is. I was pleasantly surprised when I started studying law and found it really fascinating, as I thought it was going to be quite dry!

I came to law a lot later after working for four years with Senator Ivana Bacik. She really encouraged me to go for the legal diploma, and said that even if I didn’t have any intention of practicing… I should go for it purely just to acquire the qualification and the legal knowledge. A lot of people do the diploma straight after their undergraduate studies as a conversion course. The course is just two years’ long, and is geared at people who are working full time. It is delivered in the evening time and is fairly intensive. I found the mix of people on the course really interesting – I met people who had come straight out of college, as well as people who were coming to law much later in life. Overall, I found my experience at the Inn very rewarding. All of the tutors are practicing barristers, so you get a real sense of what it’s like to be at the bar. It is quite a small class too, so you get to know everyone well – I really enjoyed those two years!

From your experience, what are the benefits of taking the less traditional route into the legal profession?

I can only speak to my own experience, but people who studied law at undergraduate level have said to me that they sometimes envied those who took the Arts route! At any stage, law is an intensive course with an intensive workload, and I think there is a huge pressure on undergraduate law students to immediately engage with internships before they have necessarily figured out what they want to be and which route they want to take.

From my own perspective, I really found that coming to law later in life, I had a better understanding of how it fits into everything. Whether it was family law, land law, criminal, or tort, I felt like I had far more context for these topics that I would not have had otherwise. I know a lot of civil servants take the diploma route, and from their experience, they have a wider understanding of how the law fits into politics, government, and wider EU issues. Personally, I came at the diploma quite motivated, and I certainly felt that the same was true for everyone in my class – we were there because we wanted to be there, and not necessarily because we achieved high points in our Leaving Cert!

Photo courtsey of Ursula Quill

Current Page 4 Alongside your studies, you worked in the Oireachtas as a Secretarial Assistant to Senator Ivana Bacik, researching important domestic and foreign policy issues such as the Repeal the 8th campaign, and the implications of Brexit to Ireland. In light of this experience, why did you decide to pursue a career in law, as opposed to a career in politics or the civil service?

I really got first-hand experience of the legislative process when I was working with Senator Bacik, who is a remarkably effective legislator and has introduced a lot of Private Members’ Bills which have successfully passed through the Oireachtas or influenced government policy. I could see how the law was made, and what could be achieved through that… I think people are often quite disillusioned with the capacity to bring about change in politics or more widely, but I certainly got a sense that even if it is fairly incremental, you can actually begin to chip away at the process. I worked with a lot of civil servants on various pieces of legislation, and I could see that their piece of the work was very valuable… but I also wanted to see the other side of it. I had very little experience and knowledge of what happens in the courts, and wanted to learn more about that side of things.

It should also be noted that a lot of people who want to get the professional barrister qualification don’t necessarily want to practice at the bar, or at least that is not their ultimate aim. I think there is this perception that if you don’t end up practicing you are a “failed” barrister, but the qualification is considered extremely valuable by many different professions. In the civil service they particularly value that qualification, as do many other organisations such as tech companies, especially as there is an increasing emphasis on data protection and EU law implications in these industries.

The Chair of the Bar Council Maura McNally S.C. recently stated that “the [barrister] profession is reflective of society as we know it.” In your opinion, what are the existing barriers which impede women’s access to legal education as well as upward mobility within the profession?

One of the issues in the Bar with regards to gender inequality is that we almost have fifty-fifty men and women qualifying as Junior Counsel, but when it comes to the Inner Bar, women only make up around 17 per cent of Senior Counsel. The Chairwoman has made the point that women constituted 30 per cent of the most recent cohort who were called to the Inner Bar. This shows that perhaps, in a couple of years’ time, we’ll get to the point where we are more equal, but certainly there has been a concern that this is taking far too long. In terms of the barriers that exist for women, I think these are quite particular to the legal profession, and parallel the barriers women face in politics. Both professions are somewhat precarious – you can’t necessarily plot out your life according to these careers, so I think that can be off-putting for some women.

Last year it was the 100th year of women practicing in the Bar, and the Bar Council and the Law Society commissioned a fantastic online exhibition of the first 100 women called to the Bar in Ireland. I was amazed as I was going through the list of names, which included women like Mary Robinson and Yvonne Scannell… It’s really striking to see how the 90th to 100th women on that list became barristers relatively recently in the mid-1970s.

In addition to the barriers women face, I think there are still massive barriers in terms of class and socio-economic background. Anyone who has any familiarity with the Bar will know that it is so much about connections, and I think there is a certain culture there that very much needs to be tackled. Recently, the Bar commissioned a survey on bullying and harassment within the profession [Balance at the Bar Members Survey, October 2019] which featured questions on job satisfaction and wellbeing. What was really striking was that job satisfaction for people who had been practicing for over 30 years was very high, because if you have managed to make your career at the Bar, and have been there for that long, then you probably enjoy your job and are thriving in your profession! The worrying thing was that there seems to be a lack of support for those who are in their first ten years of practice, and there needs to be measures in place to ensure that those who want to stay at the Bar have the incentive and support to do so.

I think there are still massive challenges, but at the same time, I welcome the Chairwoman’s remarks because she has opened up a conversation around her vision of what she wants the Bar to be. These comments are quite similar to those of Chief Justice Frank Clarke about changing the perceptions of the legal profession. It’s about

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finding that balance between recognising that on the one hand, there are problems in terms of the historical, cultural perceptions of the Bar, but at the same time we want to be in a better place, so let’s describe ourselves as inclusive… I think there is huge willingness from the Chairwoman and other members of the Bar Council to change.

You were also a member of the “Emerging Voices” Group, a notably gender-balanced panel which is an initiative of the Institute of International and European Affairs as part of their “Future of the EU27” project. Could you tell us about the purpose of this initiative, as well as your work within the group?

The IIEA is an Irish think tank focusing on European and International affairs. It set up the Emerging Voices Group of under 35-year-olds in partnership with the Department of Foreign Affairs two and a half years ago to look at policy issues. I met so many amazing people within the group who came from the private, public and community sectors. The then-Minister for European Affairs Helen McEntee also met with us a couple of times, and she was really passionate about how the group was feeding into the Department’s work.

The group wound up during the summer, but I’ve been appointed to the Board of the IIEA this month.

I’m really excited to continue working with them, because there aren’t a large number of policy think-tanks in Ireland, and the IIEA do important work, especially in terms of Brexit. Now, however, their focus is more on the position of Ireland in Europe post-Brexit. Really, we need to start looking at what the future is. If you listen to commentary coming from London, they’ve moved past Brexit, so we need to also move beyond that and say, it’s happened, we’re not happy with it, but we need move on to looking at Ireland’s place within the world, and start finding new alliances. One of the things I am very interested in is looking at other countries which we have commonalities with. I was very privileged to go on a trip to Berlin last year with the German Embassy, and one of the big emphases of the trip was that Germany and Ireland have a lot in common, as they share the same aspirations around Europe. Unfortunately, a lot of countries in Europe are falling behind in terms of commitments to rule of law and multilateralism, so I think that the big challenge will be finding those alliances. Also, we hopefully will have a Biden administration next year. I was watching Cass Sunstein and Samantha Power speak to the Trinity School of Law recently about America post-Trump, and one of the things which arose during the interview was that democratic countries really need to focus on alliance-building on a global level. So that is my focus for the next steps of the IIEA. Finally, what advice would you give to undergraduate students who are considering a career at the Bar (and in particular, female students)?

There are organisations which are fantastic at facilitating networking, such as the Irish Women Lawyers Association. They have a junior members group which is mainly geared at students and younger members of both the solicitor and barrister professions. I’ve found that in general, and certainly with the IWLA, the kind of support and encouragement that I have received from older women within the profession is so genuine. When you reach out to people for advice, they are more than happy to provide it. Sometimes, I think there is this (misogynist) myth that all of the qualified women at the top of the ladder are trying to pull up the ladder. I’ve only ever experienced very encouraging and supportive mentors, and that includes both men and women. What I would say to students is take the opportunities that are there and reach out to people, and thank them when they do because then it pays dividends… Mentorship programmes are great. At the end of the day, having somebody to bat ideas off of and go to for more informal questions is really helpful. For myself, working with Senator Bacik was so encouraging, and I knew that I could always go to her for advice.

At the undergraduate level, I would say that you should take the opportunity to take part in as many extra-curricular activities as you can outside your coursework, whether that is mooting competitions or drama. I did a lot of debating while I was in college, and that certainly taught me to think on my feet! You can’t get enough public speaking experience. I would also recommend getting involved in law reviews, editing and writing papers.

These kinds of activities are “soft networking” opportunities, as you get the chance to meet law students who are not necessarily sitting next to you in class and from other institutions. The barrister route is challenging,

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but I think if you’re passionate about it, you should go for it, and don’t be afraid to reach out to those who have achieved it. My experience is they are usually more than happy to give a helping hand.

Finally, when the Four Courts and Criminal Courts open up again fully to the public, I would recommend going and seeing the professionals in action!

Secrets, Silence, and Shame

By Jill Rothwell, JS Law and French Editor’s Note: This article discusses the recent developments within the Commission of Investigation on the Mother and Baby Homes, a topic which some readers may find distressing.

Shrieks of pain and anguish hailed from hundreds of Mother and Baby homes for decades. The cries of distress and agony during childbirth were said to be those of the banished mothers paying for their sins. These cries were so distant from society, muted by the reign of Catholic Church and state institutions. Women abandoned and outcasted by their communities were defeated, arbitrarily detained and forced into labour for the duration of their pregnancies and longer still. They were subjected to degrading treatment by the institutions implemented by the State for the supposed purpose of ‘caring’ for women who fell pregnant outside of wedlock.

This state-sanctioned abuse oversaw thousands of involuntary and illegal adoptions, alongside unrelenting abuse, and copious human rights violations. Women were deprived of medical attention during and after their pregnancies, leaving them in critical conditions. According to the Coalition of Mother and Baby Home Survivors in a statement made in 2017, a conservative estimate of 6,000 women and children died as a result of this systemic institutional abuse, endorsed by both the Catholic Church and the state. Children who survived the homes were either adopted, fostered or sent to industrial schools where abuse was equally as widespread. Their mothers, demoralised by both their own communities and the system itself, were abandoned by the authorities.

The history of the mother and baby homes is a source of shame and secrecy for Irish society. It is not only the state and the Church who are to blame for the tragedy, but also the people of Ireland. The existence of these institutions and the abuse that transpired therein was no secret to the general population. The people turned a blind eye, unwilling to accept the torment and suffering they would inflict on young women by isolating them from their communities. Conscious of the exploitation and injustices, society chose to neglect the welfare of women and children and continued to shroud the transgressions in secrecy, denouncing the unwedded women to be a source of shame in Ireland.

Following the discovery of an unmarked mass grave containing the remains of an estimated 800 children in 2014 from a home that once operated in Tuam, Co. Galway, the once national issue of mother and baby homes became a source of international focus and scrutiny. It was a time for reconciliation, historical justice, and recognition of the significant abuses, injustices and abhorrent crimes committed. Former Taoiseach Leo Varadkar issued a formal apology in which he stated, “We inherit a deep shame for what was done back then, and we must now endeavour to learn, to atone and to put things right.” Pope Francis also delivered an apology for the crimes of the Catholic Church in Ireland.

Following a universal demand for transparency, the Commission of Investigation into the Mother and Baby Homes was established in 2015 as part of a five-year plan to investigate the reports and practices of the homes in Ireland. Although the Commission was established to investigate and shed light on the tragedies, survivors and critics have argued that the state is still attempting to perpetuate secrecy surrounding its crimes. On numerous occasions, the Commission and Tusla - Ireland’s Child and Family Agency - have denied requests from survivors and their families for the issuance of a testimony of their own personal evidence. In 2017 when the Commission were taking testimonies, Bessborough survivor Noelle Brown requested a copy of her own personal records, but when the transcript was issued, Brown noticed that almost all names had been redacted to the extent that the records were useless to her quest to discover her past. The State has reasoned that its rationale for placing the infor-

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mation beyond public reach is due to the guarantees of confidentiality given to survivors contributing testimony.

Such an assurance of confidentiality and anonymity ensured full compliance by both the survivors and religious orders. It was argued that the legislation sought to “preserve” the records and not put them beyond the access of survivors. Minister for Children Roderic O’Gorman also stated that “confidentiality applies to the evidence and records gathered by the inquiry” and that such confidentiality “is central to allow testimony be given freely”.

Although there is common empathy for the children of the system and their desires to access the information and details of their past, it is also equally necessary to acknowledge the mothers’ interests. These women endured immense trauma and a great deal of shame. Some may not want to revisit that time in their lives and relive the trauma of reuniting with their lost children, when many relied on the assurance of confidentiality when providing testimony.

The issue at hand is a balance of interests, but in order for there to be full reconciliation, there must be transparency. Without absolute transparency, this culture of shame will continue to shroud the history of the Mother and Baby Homes. The state’s desire for secrecy surrounding the institutions is an ongoing violation of human rights. Victims of the system are being denied access to their own personal information, and most importantly, their history. Survivors are being refused the right to their past, their names, and their mothers’ names. The state’s evasion from its victims is indicative of its historic misconduct and maintains the silence that surrounds its transgressions.

On October 22, 2020, a controversial bill was passed with 78 votes to 67 which provides that the database of 60,000 reports of the Commission of Inquiry into the Homes is to be transferred to Tusla, and furthermore, the 2004 Commission of Investigations Act will require the records to be sealed for a period of 30 years. Despite public outcry and pleas from survivors, the Government refused to accept any of the amendments to the Bill proposed - with the first proposed amendment being the disallowance of retention of the records by Tusla, considering their long history with the mother and baby homes. Mr. O’Gorman emphasised that the Bill will “preserve access to invaluable information now and into the future” - and will not put it beyond reach, as had been reported.

One must ask what the Bill seeks to preserve, the survivors, or the system? The State has claimed that it is not the legislation that seeks to “seal the archives”, rather that it is the 2004 Act that requires them to do so. But it has been disputed that the 2004 Act does not require the government to put the records completely beyond reach or proceed entirely in private. In fact, S 12 of the 2004 Act states that a Commission shall disclose to a person “about whom evidence is given”, “the substance of any evidence in its possession that, in its opinion, the person should be aware of for the purpose of the evidence that person may give or has given to the commission”. Victims have fought for decades to access information about their pasts, and as a result of this Bill they are being subjected to yet another injustice. It is arguable that the State appears to be satisfying its own interests of expediating the process and passing this legislation in order to conform with its self-imposed deadline before the dissolution of the Commission once the final report has been delivered on October 30, rather than victims’ interests. With many survivors of the homes approaching the later stages of their lives, perhaps most of them will never gain access to the records, and consequently, their pasts. In addition, the sealing of the records presents an obstacle to many of the victims who may want to bring a case against the state. With their personal testimonies sealed, the

“In order to atone, we must learn from our mistakes and put things right, and a transparent view of history is required. Perpetuating a culture of secrecy, silence and shame by hiding our history does not reconcile our mistakes, but endorses them.”

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inaccessibility to the Commission’s evidence presents an impenetrable barrier to seeking their own justice.

It seems there has been a disconnect between the State’s initial apology for its conduct following the Tuam babies discovery and its intentions to seal the archives.

In order to atone, we must learn from our mistakes and put things right, and a transparent view of history is required. Perpetuating a culture of secrecy, silence and shame by hiding our history does not reconcile our mistakes but endorses them. There is a dire need for the state to finally seek redress for its victims and unveil the truth. The call for absolute transparency during these times is imperative for the restoration of dignity and respect of those who have suffered at the hands of the institutions.

Since the passing of the Bill on October 22, there has been a significant development surrounding the issue of sealing the records. Minister Roderic O’Gorman has since clarified that the rules of EU General Data Protection Regulation (GDPR) will apply to the records. This is a momentous protection for survivors, which will give them a right of access to their own personal information once a two-step test is passed. This will hopefully allow the mothers and children that fell victim to this corrupt system to uncover their pasts, their history, and their names, as well as finally reclaiming the right to their identities.

Editor in Chief Samantha Tancredi

Deputy Editor Orla Murnaghan

Copy Editor Olivia Moore

Public Relations Officer Zoe Timmons Editorial Board Demilade Adeniran, Doireann Minford, Dylan Krug, Ellen Hyland, Emma Bowie, Eoin Gormley, Jacob Hudson, Katharina Neumann, Lucy Mockler, Marcella McGuinness, Muireann McHugh, Matthew O’Shea, Michael Archer, Rory Hearn, Scott Murphy

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Design, Photography, and Cover by Samantha Tancredi Photo courtesy of Ted Halligan, JS Law and Political Science