Yesterday the government introduced the Finance Bill 2012. The proposed legislation will be discussed today in the Dáil. “So far, so boring,” I hear you say.

Well, yes. But, in amongst the latest raft of measures implementing economic shock doctrine in Ireland, there are provisions which affect civil partners.

GLEN, not surprisingly, have cheerfully welcomed the measures as “extending equal treatment for civil partners in the tax codes”. Given the organisation’s record on how they represent civil partnerships, however, I’d be a bit sceptical and prefer to read the document and wait for the Oireachtas debates myself.

The relevant bit is in Part 6 at Section 117 (“Miscellaneous amendments: civil partners”). Unfortunately, since it’s a series of amendments, it may be difficult to make sense of it at first glance (unless you’re a tax lawyer, say).

The government’s simplified version is:

Section 117 makes a change in respect of the tax treatment of civil partners subsequent to the passing of Finance (No. 3) Act 2011. The section addresses issues in relation to maintenance arrangements for
civil partners as compared to the maintenance relief provisions for married couples.

It also places civil partnerships on the same footing as married relationships where it is accepted, that after the break-up of a relationship, often for economic reasons, persons may continue to live under the same roof.

A number of minor technical amendments identified after passage of Finance (No. 3) Act 2011 are also being dealt with.

On first glance, and with precisely no expertise whatsoever, here’s my own (probably wrong) initial assessment:

One of the amendments relates to “rent-a-room relief” and means that now if a child is paying rent to their civilly-partnerfied parents for a room in the parents’ private residence, that rental income is not exempt from income tax (within a certain upper limit).

Stay with me, now.

Another amends the law relating to “wear and tear allowances for licences for public hire vehicles“. Jesus wept. Anyway, the amendment means that civil partners are included as well as spouses in being recognised as the “beneficial owner” of the vehicle licence upon the death of their partner.

Cheery.

The next amendment appears (to this lay person’s eyes at least) to be a bit of a semantic change. The section that’s amended, however is interesting. It currently states: “in the case of civil partners where they are not living separately and apart in circumstances where reconciliation is unlikely [...]“.

“Where reconciliation is unlikely”? Really? Does anyone else remember the big deal the then Minister for Justice, Fianna Fáil’s Dermot Ahern, made about being unable to include any mention in the Civil Partnership Bill about requiring family lawyers to explore the possibility of reconciliation before pursuing a dissolution of a civil partnership?

His justification was that it would be “unconstitutional” to include such a requirement. (Please..) And yet, since the Fine Gael Labour government has come to power, the prospect or otherwise of reconciliation is important when it comes to tax law? How curious. Does anyone know if the main Civil Partnership Act has been similarly amended?

It’s a good thing, certainly, since the clause relates to children and one-parent family tax credits – but it’s still a general contradiction, isn’t it?

Moving on.

The next amendment relates to the definition of “dependent relatives”. Surviving civil partners are included as being dependent relatives. Two things, however: they can be the parent of an individual, of the parent of an individual’s husband or wife; but there is no mention of the parent of an individual’s civil partner. The dependent relative, if they are a surviving civil partner, must also have not entered into a further marriage or civil partner; there is no such restriction mentioned in relation to a surviving spouse.

(Someone please tell me I’m reading this wrong.)

(a) In this subsection ‘dependent relative’, in relation to an individual, means a relative of the individual, or of the wife or husband of the individual, who is incapacitated by old age or infirmity from maintaining himself or herself, or a person, whether or not he or she is so incapacitated, and—

(i) who is the widowed father or widowed mother of the individual or of the wife or husband of the individual, or

(ii) who is the father or mother of the individual or of the wife or husband of the individual and is a surviving civil partner who has not subsequently married or entered into another civil partnership.

The words that spring to mind are “glaring” and “galling”.

After that, there are amendments which: include children raised by civil partners in relation to retirement funds; include surviving civil partners in relation to PRSA products; again makes a seemingly minor change (though the divil is always in the detail) in relation to income tax and civil partners living separately where reconciliation “is unlikely”; and broadens the definition of “maintenance arrangement“.

There are also seemingly minor amendments to capital acquisitions tax law, which aim to include civil partners as well as spouses; and, finally, provisions setting out the times and dates from which assessments or calculations are deemed to commence.

Ain’t equality grand?

• Finance Bill 2012 (as initiated, together with Explanatory Memorandum) (PDF)
• GLEN’s press release

Related posts:

1. Missing Pieces: The Family Home & Finance
2. Missing Pieces: Parent & child, other issues
3. Civil Partnership: “An abdication of legislative responsibility”

Gaining marriage equality rights in one state may be considered fortunate. Gaining marriage equality in two states may be regarded as real progress.

California’s Proposition 8 ruling is, like, so two days ago. Now it’s all about the introduction of a marriage equality Bill by the Washington legislature. (Do keep up.) West coast, y’all!

The state House of Representatives debated the measure before taking a vote just before midnight Irish time. It passed by 55 votes to 43. Washington governor, Christine Gregoire, who introduced the measure has indicated that she will sign the Bill into law immediately.

With today’s vote, we tell the nation that Washington state will no longer deny our citizens the opportunity to marry the person they love. We tell every child of same-sex couples that their family is every bit as equal and important as all other families in our state. And we take a major step toward completing a long and important journey to end discrimination based on sexual orientation.

- Democratic Gov. Chris Gregoire.

The New York Times reports that the Bill could be signed as early as next week, but cautions that it may not take effect right away because, well, haters gonna hate. If opponents to the law can cobble together at least 120,000 signatures, then under state law the measure will be put to a referendum.

Nevertheless, now we can add to the list of things Washington is famous for: rain, Sleepless in Seattle, Nirvana, Starbucks, and marrige equality.

This is about couples. This is about family. This is about kids. This is about love and commitment.

- Rep. Laurie Jinkins, D-Tacoma.

Why should their union of over 23 years not be recognized? They are committed to each other. They love each other.

- Rep. Ruth Kagi, D-Lake Forest Park, talking about her Democratic colleague, Rep. Laurie Jinkins, D-Tacoma, and her partner, Laura Wulf.

I’m very proud of my children. I’m very proud of my two sons. And they deserve the same rights and privileges that their brothers and sisters have. We have to have equal rights.

- Rep. Phyllis Gutierrez Kenney, D-Seattle, speaking about her two gay sons.

Congratulations, Washingtonians!

Quotations via AP/Seattle Post Intelligencer.

Related posts:

1. 14 year old girl asks Maryland to vote “No” on marriage equality for her birthday
2. Australian marriage equality ad is internet hit
3. Help Marriage Equality share Rory’s story

Speaking of marriage equality, on Monday Lucinda Creighton was scheduled to arrive at a seminar in Sligo IT called European Economic Policy – What’s in it for Ireland?

In February of last year Creighton caused uproar when she was criticized for her thoughts on marriage equality. She tweeted:

I think marriage is primarily about children, main purpose being to propagate & create environment for children to grow up. Its a good policy for society to support male/female marriage imo. I think civil partnership should ensure gay couples r treated fairly and justly re tax inheritance etc & recognition by the State But marriage is different.

The LGBT community and allies across the country voiced their rage and urged Enda Kenny to fire his then “equality spokeswoman”, while Fine Gael covered their tracks by stating they were Creighton’s own views and had nothing to do with the party.

So when the LGBT Society at Sligo IT heard about Creighton’s trip to the college they got their thinking caps on and immediately decided that they were going to make their presence felt and show Creighton that they were there, they mattered, and the fight for their right to marry was still going as strong as ever.

The staged marriages took place at the Salmon of Knowledge statue in the college grounds. The gay, lesbian and straight couples read vows and said their “I dos”. Shortly after this Lucinda Creighton arrived at the college while the LGBT society moved to the balcony to take photos.

Sarah O’Riordan, secretary for the ITS LGBT society said:

She showed up and we had one of our couples holding the flag. She averted our gazes completely. We kept silent, and went inside to stand on the balcony, and take photos, and they stood just to the left and attempted to pay no attention to us.

Sarah asked all in attendance to remember that this year Irish MEPs (Mary Lou Mcdonald , Bairbre Dé Brún,Padraig Mcloughlin,Toiresa Ferris, Kathleen Funchoin, Dan Boyle, Fiachra O Luain) signed the Be Bothered pledge which asked that:

…politicians remember to uphold their promises to the LGBT community, to uphold the fight for equal rights in the LGBT community, and to promise for the next twoand a half years to work 110% to make that difference.

Sarah’s speech concluded with:

We are all fighting for something in life, we are fighting for equality, four our rights, and it is a battle that never stops.

Creighton was not oblivious to the ITS peaceful protest against her presence in the college. Before she left she apparently lodged a complaint against the ITS LGBT Society. That didn’t dampen their spirits, however, and the couples enjoyed their ”honeymoon” in the local with a few pints and smiles all round.

Related posts:

1. Just Love? Marriage Equality’s funding crisis
2. Ministry of Protest
3. LGBT Noise March for Marriage held in Dublin

Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California.

It’s LGBT History Month in the UK, but it was across the Atlantic that history was being made yesterday.

A court in the United States ruled yesterday on the validity of California’s Proposition 8, the referendum proposal which introduced a ban on marriage equality in the state.

The 9th Circuit Court of Appeals, sitting in San Francisco, issued its ruling at 10am local time (6pm Irish time). It stated that Proposition 8 was unconstitutional as a matter of US federal law.

Although the [US] Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted.

The Court’s ruling can be read here (pdf). The AP has some excerpts from the ruling here. The National Center for Lesbian Rights has issued a statement. There’s also an easy-to-understand analysis here.

Although strident in its language, the Court confined itself to a narrow issue: it did not address the question of the right to marry or equality for same-sex couples in general. Rather, the court looked at the particular circumstances which arose in this case.

California had already introduced marriage equality before the proposal to ban same-sex marriage was introduced, and eventually passed by voters.

The Court ruled that this measure, removing a right which had previously existed, was unconstitutional.

Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the state, or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less.

Does the ruling have any implications for Ireland? Well yes and no and maybe (but mostly no).

Irish courts can have regard to judgements from other countries, although such judgements are not binding.

The circumstances of US case don’t arise in the Irish context: although the Fianna Fáil-led government introduced legislation in 2004 to ban marriage between same-sex couples, Ireland hasn’t already expressly provided for equality.

(Compare Spain, however: there, the previous Socialist government introduced marriage equality, but before recent elections, the conservative Partido Popular pledged to remove such equality. It remains to be seen whether the current Spanish government will follow through with this election promise and, if they do, whether such a move will stand up to EU and/or European human rights laws.)

The case being taken by Senator Katherine Zappone and Dr Ann Louise Gilligan to have their Canadian marriage recognised in Ireland is currently awaiting a hearing date from the Supreme Court. Before Christmas, they were unsuccessful in including a challenge to the 2004 legislation, but in theory the legislation may be open to challenge.

Although the US ruling relates to different circumstances, some of the points it makes may well be relevant to the Irish situation.

Related posts:

1. Setback in fight for marriage equality in Ireland
2. Marriage equality comes to Washington state
3. Civil Partnership: “An abdication of legislative responsibility”

• Aoife Neary, a secondary school teacher and Doctoral researcher at the University of Limerick, has been in contact regarding her current research – and you can get involved!

What is this research about?

The experiences of lesbian and gay teachers who are considering, planning or have had a civil partnership or civil marriage.

What are the benefits of the research?

This research attempts to break some of the silences that have surrounded lesbian and gay teachers in Ireland in the past. Civil partnership creates a new space and opportunity to explore how lesbian and gay teachers are negotiating their way around issues related to their sexuality in their school environments. The new knowledge created by this research will inform key stakeholders in the Irish education system about the realities of the everyday lives of lesbian and gay teachers in Ireland.

What are you being invited to do?

As a teacher myself, I am very aware of the busy nature of teachers’ lives so participation in this research will be efficient and flexible! It will involve an interview with me (1 hour) and a reflective task on your everyday life (decided by you).

Please get involved! Contact:

Aoife Neary,

Secondary School Teacher and Doctoral Researcher,

Department of Sociology, University of Limerick

Email: aoife.neary@ul.ie

Tel: 086-8647474

This research is funded by the Irish Research Council for Humanities and Social Sciences

Related posts:

1. Civil Partnership seminar in Wicklow (25th Nov)
2. Civil Partnership Photography want you!
3. Civil Partnership: “An abdication of legislative responsibility”

A video of a 14 year old girl asking the people of Maryland to vote “No” on marriage equality went viral yesterday on Buzz Feed. She spent her birthday with the Maryland Senate Judicial Proceedings Committee and made her birthday wish to lawmakers. She said:

Today is my 14th birthday and it would be the best birthday present ever if you would vote NO on gay marriage. I really feel bad for the kids who have two parents of the same gender. Even though some kids think it’s fine, they have no idea what kind of wonderful experiences they miss out on. I don’t want more kids to get confused about what’s right and okay. I really don’t want to grow up in a world where marriage isn’t such a special thing anymore.

It’s rather scary to think that when I grow up the legislature or the court can change the definition of any word they want. If they could change the definition of marriage then they could change the definition of any word.

People have the choice to be gay, but I don’t want to be affected by their choice. People say that they were born that way, but I’ve met really nice adults who did change.

So please vote no on gay marriage. Thank you.

The recorded birthday message sounds obviously scripted. A girl of fourteen does not come up with these opinions on her own, so what kind of parents must she have? It’s truly sad to hear a fourteen year old voice her homophobia so blatantly whether she’s being influenced or not.

I posted the YouTube video on Facebook and immediately people were commenting on the video, voicing their outrage. Darragh Horgan said:

Definitely a sense of moral questioning going on, “whats right and okay“, plenty of things are not right and ok, but they are ongoing in the world at present and dont heed any obstruction. The only difference is, this threatens people’s understanding of the society they are in, and more importantly brings the recognisation of anyone who fails to fufill a heteronormative role into question as a second class citizen.

Paul Bostock said:

“But i think marriage should be between opposite genders and children must experience a mum and a dad” What bullcrap. When it comes to marriage and family it’s love and stability that matter, not gender. I still can’t believe the amount of “not-in-love” people that get married and screw up their kids time and time again and are allowed preference over a gay couple that’ll happily love and care for their children and for each other. The whole thing sickens me.

On ThinkProgress where the original ‘news flash’ was posted, a comment beneath the recording said:

For her to be abused that way by her anti-gay parents constitutes a form of child abuse. “People have the choice to be gay,” she says “but I don’t want to be affected by their choice.” The only way she is being “affected” by gay people is that her parents are teaching her to hate them.

For all of the people who have moved on from their prehistoric homophobic views, there seems to always be somebody waiting to challenge the progress that has been made, and what a disgrace it is when adults are still influencing the next generation of kids to be just as homophobic and ignorant as they are.

www.youtube.com/watch?v=o-Tsr7rz9Og

Related posts:

1. Australian marriage equality ad is internet hit
2. Marriage equality comes to Washington state
3. Help Marriage Equality share Rory’s story

We gays do a good campaign don’t we? It Gets Better, NOH8 and so on. 

To be fair to our community, most LGBTs really want a way to come together and try to make a difference and when given a platform we can outdo ourselves. The latest in this distinguished list is the North Carolina “Vote Against” Project.

Some background for you: on 8th May next the folks of North Carolina will vote on a ban on same sex marriage. While most places are voting on recognising rights, these people have to stand up and speak just to keep things the same and prevent their work for marriage equality taking a major step in the wrong direction.

Last September a rally was held in Raleigh, NC, to oppose the legislature’s vote to put a constitutional amendment on the ballot. Sadly, however, the amendment passed and now attention must go to getting as many no votes as possible, but what exactly would this mean to LGBTs in North Carolina?

According to the Vote Against website the amendment does the following:

In addition to prohibiting same-sex marriage, as state law already does, the Amendment would:

• prohibit North Carolina from ever passing legislation that would grant civil unions;
• bar the state from instituting domestic partnership rights;
• strip the domestic partner insurance benefits currently offered to employees by a number of local governments.

It’s hard to fathom in this day and age that people still have to stand up against this kind on nonsense, but there it is.

Curtis Brown is a Raleigh-based photographer who has started the project which captures images of people wearing “vote against t-shirts”, much like the NOH8 campaign started by Adam Bouska in California. 

Brown is even going on tour around the states to facilitate the participation of as many people as possible. You just have to commend people like him: well done to Curtis and all his volunteers. Let’s hope the vote goes the right way and this kind of backwards step is prevented by a large majority.

Related posts:

1. Marriage equality comes to Washington state
2. 14 year old girl asks Maryland to vote “No” on marriage equality for her birthday
3. The Glee Project

The particular case involves two women in their thirties, who married in 2005 and now are seeking a divorce. In Canada, a divorce is only possible following 1 year’s residency in Canada, even though it is possible to marry without any residency requirements.

The couple are challenging the residency requirement in a Charter case.

The argument to be put to the court in February — by government lawyers — is that if two people marry in Canada but are ineligible to marry in their jurisdiction of residence, the marriage is invalid. If this argument succeeds, the couple will not require a divorce because they will be deemed to never have been married, along with about 5000 other non-resident couples since 2004.

“In this case, neither party had the legal capacity to marry a person of the same sex under the laws of their respective domiciles – Florida and the United Kingdom,” Mr. Gaudet stated. “As a result, their marriage is not legally valid under Canadian law.”
Federal Lawyer, Sean Gaudet, Globe and Mail

So far, the Canadian Prime Minister, Stephen Harper, has said that his goverment is not interested in reopening the debate on marriage equality and asserts he was not aware of the details of this case.

From an Irish perspective, this could have a devastating impact on the Zappone/Gilligan case if they are deemed to have never been married at all. My own marriage would also be affected.

Regardless of outcome, it’s a harsh reminder that the fight is never over. Our rights, even where they are recognised, appear to be endlessly vulnerable.

I will have another post with analysis shortly.

Related posts:

1. So that Canada thing, eh?
2. Setback in fight for marriage equality in Ireland
3. Marriage equality comes to Washington state

• This just in from our friends in Marriage Equality:

Senator Katherine Zappone and Dr Ann Louise Gilligan honoured among top inspirational female role models in Europe

Following a successful nomination to the European Institute for Gender Equality (EIGE) by Marriage Equality, Senator Katherine Zappone and her partner Dr Ann Louise Gilligan have been featured in the EU organisation’s “Women Inspiring Europe” 2012 calendar.

With the publication of the calendar, currently in its second year, EIGE aims to give visibility and pay homage to some of Europe’s most remarkable women, by highlighting their achievements and success stories.

Moninne Griffith, Director of Marriage Equality, said:

We’re absolutely delighted that Senator Zappone and Dr Gilligan have been featured in the ‘Women Inspiring Europe’ calendar. They are hugely inspirational women for the marriage equality movement – not only in Ireland, but around the world. Their struggle to have their Canadian marriage recognised here is a huge part of the reason that we have Civil Partnership legislation in Ireland today.

While Civil Partnership is an important step on the road to equality, there is still much work to be done before equality is achieved. Senator Zappone and Dr Gilligan’s continued challenge has inspired people from all across the country to join the campaign for equality for same-sex couples, our families and our children.

Marriage Equality nominated Senator Zappone and Dr Gilligan not only for their work with the marriage equality movement, but also for their tireless dedication to women’s rights.

In 1986 they founded The Shanty (An Cosán) – a distinctive model of community-based education aimed at tackling poverty, isolation, inequality and disadvantage that played a key role in crystallising women’s community education in Ireland and worked to gain recognition of women’s community education as deserving a state-supported role within the education system.

They have also established the Centre for Progressive Change, which aims to respond to the crisis of the breakdown of financial and social systems that Ireland is facing by promoting an ethical vision that puts community at the heart of public life. The CPC offers services and training to individuals and organisations aiming to implement progressive change in the development of public policies and laws, and the design and delivery of public services.

Senator Zappone and Dr Gilligan are featured in the month of May, which coincides with the International Day of Families (May 15th) and the International Day Against Homophobia (May 17th). The 2012 calendar is the first time a lesbian couple has been highlighted as an inspirational feature. The text accompanying their photo praises their courage and devotion as an inspiration to others who encounter a violation of their rights to fight for them.

Speaking at the launch of the calendar, EIGE Director Virginija Langbakk said:

So many women across Europe could be promoted as great examples of their career and actions. We selected 12 women … just to give Europe a glimpse of their potential and to demonstrate that people can make a difference – if they act, and in particular, if they act different.

The “Women Inspiring Europe” calendar will be widely distributed in EU policy making circles. A copy of the calendar can be found online here.

Related posts:

1. Preliminary hearing in Zappone & Gilligan appeal tomorrow!
2. Congratulations, Senator Zappone
3. Setback in fight for marriage equality in Ireland

• Here’s another article from one of our new writers, Niamh Ní Mhaoileoin. Happy New Year!

2011 has been celebrated as a great year for the LGBT community. Of course, as long as severe inequality persists, it’s difficult to wholeheartedly agree that it was a great year. We’ve seen setbacks for marriage equality in Ireland, homosexuality still criminal in 76 countries around the world, lesbians tortured in anti-gay clinics in Ecuador, the LGBT community drastically suppressed in Russia, and gay teenagers everywhere still being tormented by homophobic bullying.

All the same, 2011 has certainly upheld that crucial message; that it gets better. So, grab a cup o’ kindness and we’ll run through some of the achievements of the LGBT movement in 2011.

1. Civil Partnership

Ireland rang in the New Year with the Civil Partnership Act, which came into effect on 1st January 2011, granting considerably enhanced rights to co-habiting partners, including gay couples. On 4th April, Hugh Walsh and Barry Dignam entered into the first publicly celebrated partnership under the Act.

On 5th March, the Taoiseach outlined the government’s intentions for a constitutional convention, including a provision for discussing marriage for same-sex couples. While the parameters of the convention remain unclear, the mention of marriage equality in the Programme for Government shows that gay rights have become something of a legislative priority. As Iarnród Éireann would put it, “We’re not there yet… but we’re getting there”.

2. LGBT Representatives in the Oireachtas

The number of openly gay Oireachtas members has quadrupled in 2011. In February, Dominic Hannigan and John Lyons of the Labour Party became the first openly gay TDs in the history of the State. David Norris, despite the upsets in his presidential campaign, held the Trinity seat he’s been fighting from for the last 24 years.

Finally, in a real triumph for the LGBT community, for women, for men, for children, for Human Rights, for Ireland, for the world, the solar system and the universe… the visionary Dr Katherine Zappone was appointed to the Senate at the request of the Táiniste.

3. Born this Way

Like it or not, Gaga’s anthem, released on 23rd May, was the soundtrack of gay 2011.

Gaga is a leader in a powerful popular campaign for equality that’s taking place on people’s TVs and iPods, and in their tweets, hearts and minds.

4. Repeal of ‘Don’t Ask, Don’t Tell’

On 20th September, the United States finally repealed the insidious, twenty-year old ‘Don’t Ask, Don’t Tell’ policy, which prevented LGBT people from serving openly in the military. At last, the army that professes to fight for freedom around the world afforded this most basic freedom to its own soldiers.

Last month the full adorable implications of the change were embodied by the ‘first kiss on land’ between Petty Officer 2nd Class Marissa Gaeta and Petty Officer 3rd Class Citalic Snell.

5. Hillary Clinton’s Speech

In the months since the repeal of DADT, the Obama administration has dramatically altered its foreign policy relating to gay rights. This shift culminated in Hillary Clinton’s ground breaking speech in Geneva on December 6th, urging the world’s leaders to afford LGBT people “the full measure of liberty, the full experience of dignity, and the full benefits of humanity.”

6. President Higgins

On 29th October, the election of Michael D. Higgins as the 9th President of Ireland was another victory for progressive, tolerant Ireland.

This feminist, human rights activist and LGBT ally is a true successor to the Marys Robinson and McAleese in the struggle to dismantle “the noxious apparatus of homophobia”.

7. International leaders support marriage equality

Around the world, the cause of Marriage Equality has been gaining momentum. In the UK, David Cameron has pledged that his government is now committed to discussing “how, not if” to implement full civil marriage for LGBT couples, and to have the legislation in place within the lifetime of the current parliament. The ruling Australian Labour Party also adjusted its platform to support full marriage equality.

In the USA, President Obama at last took a stronger stance on gay marriage, and voicing his support for the ‘Respect for Marriage Act’, which will invalidate DOMA. While many of the prospective Republican candidates for 2012 are virulently anti-gay, with Obama onside we’re promised a fair fight. Well, as fair as a fight can be when one side is clearly right.

8. Marriage equality in New York

On June 24th, just in time for a particularly joyful Pride, New York passed its Marriage Equality Act, becoming most populous state yet to legalise full gay marriage.

The first wedding in Manhattan was a real tearjerker, taking place between Phyllis Siegel, 77, and Connie Kopelov, 85.

9. Progress on homophobic bullying

Horrifying stories of gay bullying and suicide continued to emerge this year, most memorably that of 14-year old Jamey Rodemeyer, an out 14-year old activist and blogger. However, it seems that although change comes dropping slow, change does come.

In December, Ireland’s own Belong To were held up as role models at a UN conference in Rio, dedicated specifically tackling homophobic bullying as human rights abuse.

10. The UN’s first resolution on LGBT rights

This year the UN Human Rights Council passed a specific resolution supporting LGBT rights for the first time in its history. The resolution expresses “grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity.”

While the resolution has no binding effect, it is a milestone in that it reflects an international shift in values. Its opponents are concerned that the Resolution will force countries to legalise homosexuality and recognise marriage equality. Here’s hoping that they’re right.

Have we missed anything important? Add your 2011 milestones in the comments!

Related posts:

1. BeLonG To’s example leads first ever UN meeting on homophobic bullying
2. LGBT Noise – March for Marriage 2011
3. I, like, like that you like this: Your fave Facebook links of 2011

Here are some of the most popular non-Gaelick links from our Facebook page this year. Lovely!

16. Women have US Navy’s first same-sex homecoming kiss

They’re gorgeous, they’re confident, and they wear amazing uniforms. They’re Officers Gaeta and Snell, and they were the first same-sex couple to have the Navy’s traditional “homecoming kiss” since the repeal of DADT. They’re the new this.

As well as the Beeb’s story, there was the video, as well as the original story and pics from The Virginian-Pilot.

Petty Officer 2nd Class Marissa Gaeta (23) and her girlfriend of two years, Petty Officer 3rd Class Citlalic Snell (22) share the traditional dockside “first kiss” since the US ended a ban on gays in the army.

Aren’t they only gorgeous?

15. Amber Heard: Staying in the closet in Hollywood is a horribly detrimental lie

We do love Amber Heard here on Gaelick. (At least, some of us are obsessed.)

14. Billie Jean King and Martina Navrátilová respond to Margaret Court’s homophobic rant

13. Gay couple being told they will become grandparents

12. In memory of Sonia Pierre, human rights defender

Sonia Pierre was a prominent human rights defender of African descent from the Dominican Republic, who founded and served as Director of the Movement of Dominican-Haitian Women (MUDHA). Sonia passed away at the age of 48 from a heart attack on 4 December.

11. Same-sex partnerships from abroad to be recognised in Ireland

This brings to 32 the number of jurisdictions in respect of which Ireland recognises same-sex relationships as civil partnerships, as of 25th December 2011. Of these 32 jurisdictions, 18 provide for marriage equality.

This means that (despite The Journal‘s headline) if you are validly married under the law in any of these 18 places, your marriage will be downgraded by Ireland to a civil partnership.

Happy Christmas.

10. Ellen and Sofia Vergara shoot a CoverGirl ad

9. “What’s goin’ on”

8. “Sarah Silverman’s It Gets Better message is to adults: antigay adults. Blunt and to the point.”

7. Gay Agenda planning

From the Recruitment Committee: We are facing an uphill battle. The world’s population has reached 7 billion. This means that we will have to work hard to not only maintain our strength at 10 percent of the population, but each current member will have to recruit at least three new members to reach our target goal of 11 percent in 2012. (Remember our long-range plan: 16 percent by ’16!)

6. Recently, a Michigan mayor wrote on Facebook, “I think I am going to throw away my I Love New York carrying bag now that queers can get married there”. This woman stood up with her wife and her two children and spoke directly to the mayor. She was magnificent.

5. Margaret Cho feat. Tegan & Sara: “Intervention”

4. The primary reason why cats will never develop a system of organised religion

3. Yoga Cat

2. Ah, the Burke family, of ..somewhere in Mayo

1. From Jack to Jackie: “Why I had a sex change at 16”

“I do feel guilty sometimes,” says Jackie “because my mum’s gone through all this with me and I know people judge her and think she’s done the wrong thing. But I just couldn’t wait for it to happen. She and my dad have been brilliant. When they both came to terms with the situation they helped me so much. I owe them my life.”

Related posts:

1. LGBT milestones of 2011
2. Gaelick’s top posts of 2011
3. Álainn or Appallin’: Amber Heard

www.youtube.com/watch?v=_TBd-UCwVAY

Watch this. Then read on.

There have been many successful ads and viral campaigns for full civil marriage rights for gay people all over the world.  Not least among them is our very own Rory’s Story.  The latest in this distinguished list comes from Get Up! Action for Australia.  It is seen through the eyes of someone falling in love with and sharing their everyday life with a man.  In the end the man proposes marriage and it becomes clear the ad is depicting two men.

The short ad is basically a love story and what I find so moving about it is that is shows one person really loving and being there for another.  The advert was shown in Australia over the weekend in an attempt to get the Labour Party to endorse marriage equality.  The film has already been viewed well over 1.5 million times which, when you take into to consideration it’s release only 5 days ago, is startling.

This time next weekend, delegates at the ALP National Conference will be voting on whether to make it their policy to end marriage discrimination.  Paul Mackay, a Get Up! campaigner, has said:

We’ve been pointing to the national conference as a key moment for the party to reconsider its stance on marriage and pave the way for equality, and with only one week to go, we need to do all we can to ramp up that pressure

The title of the video “It’s Time” says it all.  Well done to everyone at Get Up! and I really hope their campaign does the trick.  Who could watch this video and not be touched?

Related posts:

1. Help Marriage Equality share Rory’s story
2. 14 year old girl asks Maryland to vote “No” on marriage equality for her birthday
3. Marriage equality comes to Washington state

Good morning, lesberinos! How are we on this fine November morn?

Grab yourself a hot cuppa and peruse some of the queer headlines from Ireland and around the world.

Gay Wexford have celebrated the conclusion of their first LGBT Visibility Week, with some amount of relief and pride. The group’s chair, Paul Cullen, writes in the Enniscorthy Guardian:

BE HONEST. Did you ever think that you would see the day? We have just survived the first ‘Wexford Gay, Lesbian, Bisexual, Transgender Visibility Week’ without major upset. Whew!

[...]

The revolution [in attitudes towards LGBT people] has come about so fast that there is already room for self mockery. The Visibility programme included a stimulating talk and slideshow on the ‘Irish Queer Archive’. Just as it has become acceptable for Irish people generally to call themselves Paddies, so it has become amusing for LGBT’S to be queer, at least amongst themselves.

[...]

Yet let no one believe that all is cosy on the Wexford LGBT front. It is notable that the programme for Visibility Week was presented almost entirely in Wexford town. The other three main towns in the county were catered for with low-key briefing sessions, while Wexford had the high profile parties and presentations, celebrity speeches and seminars. Yet, surely there are just as likely to be gays in Gusserane, lesbians in Liskenfere and bisexuals in Bunclody?

Elsewhere in Ireland, the Rape Crisis Network of Ireland reports that it has received a spike in demand for its services, while the Dublin Rape Crisis Centre warns about the dangers of further cuts to its funding.

In related news, Women’s Aid is gearing up for the start of the international 16 Days campaign to combat violence against women. We’ve written previously about the issue of violence between same-sex partners.

In happier Irish news (and this will elicit a little yelp of joy from our webmaster, I suspect), one of our national red tops reports that Westlife’s Mark Feehily plans to tie the knot with his beloved, photographer Kevin McDaid next year. The sun may be setting for Westlife, but hey – every cloud, eh?

Abroad, then, and in the United States, it’s all kicking off in California (again) where homophobes (again) are throwing hissy fits over inclusion and equality (again). This time, rather than seeking to ban marriage equality, ‘phobes are voicing their objections to LGBT history being included in education programmes.

(We can only assume these are the same people who think that creationism is a real thing.) Like Proposition 8 (the ballot initiative to ban marriage equality) the ‘phobes propose to ban this inclusive law by popular vote in 2012.

Elsewhere, allegations of “pinkwashing” by the Israeli government have made it to the pages of the New York Times. This is the term used by those who accuse Israel (or indeed any government or organisation) of co-opting and using LGBT rights issues in a bid to strengthen their own political position.

Electronic Intifada and many activists on Twitter and elsewhere have complained about this issue for some time now.

Meanwhile, AP reports that in west Africa, the parliament and federal government of Nigeria are making strides in their attempts to prohibit and criminalise marriage equality.

There are those who see the move for what it is:

Some gender experts say the bill could be an attempt to stir anti-gay sentiment.

“If you want to whip up homophobia, I think focusing on same-sex marriage is a very good way of going about it, just sowing the idea that there are lots of ‘those’ people who want to get married, so that it’s seen as attacking a fundamental social institution,” says feminist scholar Charmaine Pereira, who is based in Nigeria’s capital of Abuja.

Given the pervasive homophobia throughout society and the state in Nigeria, together with widespread and extremely conservative interpretations of Christianity and Islam (sometimes mingled with traditional beliefs), it would appear that these voices of clarity may be few and far between.

And finally, in bizarro-world news and closer to home, a politician in Switzerland has compared lesbians to cocaine. One more time with that: he has compared lesbians to cocaine. I.. I have no idea.. There are no words.. He’s obviously talkin’ out of his Swiss.

Related posts:

1. A Suppa Earl Gae
2. A Suppa Earl Gae
3. A Suppa Earl Gae

Do you like riddles? Solve a few LGBT Noise riddles and be in with a chance of winning some great prizes, as well as helping out a worthy cause.

LGBT Noise will be having a table quiz on 1st December next in the Front Lounge, Parliament Street, Dublin.

Fighting for equality is expensive work and funds need to be raised in order to be able to continue fighting for our rights! So join the folks at LGBT Noise in the Front Lounge on Thursday the 1st and help raise money and be in with a chance of winning some amazing prizes!

To pre-book a table, email info@lgbtnoise.ie

• LGBT Noise tablequiz: web / facebook / twitter

Where? The Front Lounge, 33 Parliament Street, Dublin 2
When? Thursday, 1st December 2011 at 7pm
How much? €10 per person. Max. four people per table.
Why? To raise funds for LGBT Noise!

Related posts:

1. Gloria Table Quiz
2. LGBT Noise – March for Marriage 2011
3. LGBT Noise March for Marriage held in Dublin

The fight for marriage equality in Ireland suffered a minor setback yesterday when the Supreme Court ruled against Senator Katherine Zappone and Dr Ann Louise Gilligan on a technical point.

Sen Zappone and Dr Gilligan are currently appealing to the Supreme Court to have their Canadian marriage recognised in Ireland, having lost their case in the High Court in 2006.

At issue yesterday was a request by the couple’s legal team to challenge an Irish law prohibiting same-sex marriage.

The request asked the Supreme Court to allow a challenge to Section 2(2) of the Civil Registration Act 2004 be formally included as part of the appeal. This Section includes a provision which states that it is an impediment to marriage if both parties are of the same sex.

Sen Zappone and Dr Gilligan’s case, which started out in the High Court, began prior the enactment of the 2004 statute.

In its decision yesterday, the Supreme Court refused the request to have Section 2(2) included in Sen Zappone and Dr Gilligan’s appeal.

The judges noted that although reference was made to Section 2(2) during the course of arguments in the High Court, it was never formally included, nor properly considered by the High Court judge in her ruling.

The Supreme Court also took into consideration the fact that the Civil Registration Act 2004 is a recent statute; that the outcome of its decision yesterday would affect other members of Irish society; and that the respondent in any appeal (in this case, the State) has a Constitutional right to appeal, which would effectively be breached if this new issue could be introduced now.

A date for the full appeal hearing is pending.

• See also: Shatter Island?

• See also: Shout out loud: Zappone and Gilligan publish their memoirs

Related posts:

1. Preliminary hearing in Zappone & Gilligan appeal tomorrow!
2. New Anti-Marriage Equality Argument in Canadian Court
3. California’s Proposition 8 deemed unconstitutional

Well, when it comes to Alan Shatter, however, it’s literally true. Our current Minister for Justice, Equality and Defence is one of the leading authorities in Ireland on family law, and the author of Shatter’s Family Law – a familiar core textbook for any student or practitioner of law. He knows the law relating to families and marriage back to front and inside out.

Minister Shatter will therefore be aware of the nature and origins of marriage.

Yes, I’ve prattled on before about the changing nature of marriage – through time and in its variations around the world – but I think it’s important to take a look at marriage in Ireland today, and trace its history. Just for the laugh, like.

So: marriage in Ireland today is defined in s.2 of the Civil Registration Act, 2004.

Now, stay with me on this. Section 2(2)(e) states:

For the purposes of this Act there is an impediment to a marriage if—

[…]

(e) both parties are of the same sex.

This was a legislative provision enacted in 2004. That’s 2004, a mere seven years ago. The blink of an eye in law-making terms.

It was enacted when Fianna Fáil and the [Green Party] Progressive Democrats were in government. (We don’t like them. And Fine Gael especially don’t like them.)

Previously, the definition of marriage in Ireland was determined by caselaw. That is, judge-made law.

That’s right! Not even Bunreacht na hÉireann – the Irish Constitution – explicitly defines marriage. Nope, it was all judges all along. And they, generally, followed this definition:

Marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others.

Now, where on earth did they dream that up?

Why, it’s from a case called Hyde v Hyde. Now, that case is regarded as the leading case when it comes to modern (in the legal sense of modern, I should say) notions of marriage our system of law.

But what did the case involve?

The case was decided by the House of Lords in 1866 and concerned Mormons who had emigrated from the UK to Utah, and the decision centred on the question of whether polygamous marriage was legally valid in the UK.

(You may want to read that sentence one more time.)

So it’s completely relevant. To everything!

We’re talking 1866. Queen Victoria was still clinging to that throne like a good thing, despite being recently bereaved by the death of her beloved Albert. Perhaps she was consoled by the fact that India had come under her direct rule less than 10 years previously. Meanwhile, State-side, a young gurrier called Jesse James and his pals were about to commence a life of crime. And Ireland was still very much part of the United Kingdom under the Act of Union.

Ah yes, 1866. Those were some good times.

And polygamy. How could we forget polygamy? Of course, it’s important to bear polygamy in mind when we’re talking about Hyde v Hyde; the definition of marriage in the 21st century; and the campaign for marriage equality for same-sex couples.

But back to 1866:

This was a time when the very idea of human sexuality as we understand it probably didn’t exist, let alone sexual identity or notions of gay, lesbian, straight, and so on. (It wasn’t until the likes of Sigmund Freud and Magnus Hirschfeld came along at the turn of the 20th century with their wacky ideas – oh, those crazy Europeans! – that the concepts of sexuality as we would recognise them began to be formulated.)

Image via Wikipedia

Homosexual acts, certainly, were criminalised. (Although it has to be said that it wasn’t until Henry VIII that such acts were criminalised by the secular state in England. This occurred in 1533. The full title of Henry’s legislation is: An Acte for the punysshement of the vice of Buggerie. Before that, it was Ecclesiastic Courts which dealt with issues of “buggerie”. And afterwards, King Henry used his novel legal instrument against monks to prosecute and execute them, and to seize monastic lands and valuables. Ooh, he were a crafty one, that Henry.)

Queen Victoria – there she is again – updated the criminalisation of such acts during her reign, at least twice. You may recall the Offences against the Person Act, 1861 and the Criminal Law Amendment Act, 1885 from such landmark rulings as Dudgeon v The United Kingdom and Norris v Ireland. On point of fact, however, the 1861 Act removed the death penalty as the sentence to be imposed if found guilty. So that’s a plus from Her Maj.

So the ruling in Hyde v Hyde was handed down less than five years after the abolition of the death penalty for same-sex acts between men. That’s the context we’re talking about.

And get this: as of 1993, homosexual acts are no longer criminal offences in Ireland!

Image via Wikipedia

Yet, a slightly outmoded judicial ruling persists. Given the prevailing attitudes in 1866, however, it’s hardly surprising that Lord Penzance stated that marriage was between a man and a woman, is it? (In “Christendom”, remember.) It wouldn’t – nay, couldn’t – have possibly entered his honourable and learned brain to think otherwise. This was England in 1866, for goodness sake!

So, let’s skip forward in Ireland from 1866 to 1937: Under the 1937 Constitution, all legislation enacted by the Oireachtas enjoys the presumption of constitutionality. (Legislation which precedes that date, does not enjoy such a presumption. ’Cause Ireland’s independent now, don’t you see?) So the laws passed by independent Ireland trump all else.

Hyde v Hyde was a ruling, not legislation, but you might imagine a similar reasoning would apply to the rulings of independent Ireland’s courts. And, although Ireland’s common law tradition is based on that introduced by our former rulers across the Irish Sea, divergence does occur in the legal principles established by the Irish courts as compared with the UK.

So why not now, with marriage equality? Homosexual acts are no longer criminalised. People (usually) understand the nature of human relationships. Come on, Ireland, get with the programme!

Some whine about “constitutional propriety!” or some such (without further elaboration). But as I mentioned earlier, the constitution does not define marriage; caselaw and legislation do.

And who are our legislators? Only the elected representatives of the Irish people.

And what do the Irish people think about marriage equality? 78% support equality for same-sex couples, according to a Red C poll carried out in March 2011.

“Constitutional propriety!” Oh hush! Here’s the latest interpretation from the superior courts: the High Court in Zappone and Gilligan v The Revenue Commissioners bounced the issue of marriage equality back to the legislature. The judge stated:

Dr. Zappone [...] spoke eloquently on this difficulty in the course of her evidence. It is to be hoped that the legislative changes to ameliorate these difficulties will not be long in coming. Ultimately, it is for the legislature to determine the extent to which such changes should be made.

Incidentially, the Zappone case was instituted before the enactment of the 2004 legislation excluding same-sex couples, and the High Court’s ruling was issued in 2006.

“But the Constitution!” Okay, okay. Here’s what the Constitution says in relation to marriage under Article 41:

3. 1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

Article 41 of the Constitution then goes on to describe the circumstances where it is permissible for a marriage to be dissolved. Yes, “dissolved”. That is, divorce.

So then how exactly does allowing more people to marry constitute an attack on marriage? And I mean specifically – technically, legally, socially, logically – how? Not some generalised assertion of “It just is an attack, okay? I mean, gays: ew.”

Look at the absurdities to date:

(a) The Constitution permits the dissolution of marriage through divorce.

(b) The GRAG Report recommends requiring married couples to divorce in order to have a preferred gender recognised. I’ll say that again: requiring married couples to divorce. Even if they don’t want to. Even if they are happy together, have a home, have kids – whatever the circumstances. Mandatory divorce or no cookie.

Some may refer to High Court pronouncements on the definition of marriage, which essentially re-hash the Hyde v Hyde definition. (Including, in déja vu style, the case of B v R which involved what? Bigamy!) The Supreme Court has yet to rule on the matter when it comes to same-sex couples, however. Which is where the Zappone case comes into play. What might that Court rely on? Some of its own landmark rulings, perhaps?

For instance:

“According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.”

- Walsh J. in McGee v The Attorney General (1974)

“[The preamble to the Constitution] makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity which may gradually change or develop as society changes or develops and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment.”

- O’Higgins C.J. in The State (Healy) v Donohue (1976)

“[The comments made by O'Higgins C.J. above] are particularly apposite with regard to the perception of the nature of the rights of parties to marriage and their relationship with one to another.”

and

“[I]n the interpretation of the Constitution regard must be had to the extent to which ideas and values prevailing at one period have been conditioned by the passage of time.”

- Murphy J. in TF v Ireland (1995)

Come on, Alan. You and I both know where this is headed. Between historic anachronisms, Constitutional developments, current public opinion, the ECHR, and the EU and its Charter (not to mention Brussels II bis), it’s inevitable: marriage equality is coming to Ireland. So why not spare everyone the time, energy and heartache and just legislate?

I also hear from the Law Reform Commission that the government is due to publish a Civil Registration (Amendment) Bill. Let me make it easy for you and draft the marriage equality provision:

Section 2(2)(e) of the Civil Registration Act 2004 is hereby deleted.

Ta-dah!

• Elsewhere in pursuit of equality: Zappone & Gilligan case in the Supreme Court – Fri, 21 Oct 2011 at 10:45am

Related posts:

1. Setback in fight for marriage equality in Ireland
2. Preliminary hearing in Zappone & Gilligan appeal tomorrow!
3. California’s Proposition 8 deemed unconstitutional

• This just in from our friends at Marriage Equality:

Senator Katherine Zappone and Dr Ann Louise Gilligan will be in the Supreme Court tomorrow (Friday, 21st October) at 10:45am for a motion to amend their pleadings.

Although the Supreme Court will not be hearing the case tomorrow, it is unlikely the hearing will take place before the end of the year, tomorrow’s decision may provide us with a glimpse of how the Supreme Court are feeling about this case.

We are going to show our support by launching our Just Love? Countdown to KAL (Katherine and Ann Louise) website tomorrow and we are hoping as many people as possible will join us at the Four Courts at 11am to let them know that we are with them – all the way.

If you would like to join us please call us on (01)8734183 and we will organise to bring Just Love? placards for anyone who would like to show their support with us outside the Four Courts and we also hope to make it in to the court if there is enough room for us all.

Hope to see you there and if you can’t make it tomorrow, please log on to our new Just Love? Countdown to KAL website tomorrow to upload your messages of support for Katherine and Ann Louise.

• Details from the Supreme Court diary here:

The Chief Justice
Mrs. Justice Denham
At 10.45 o’clock
For Mention
56/07 Zappone & anor v Revenue Commissioners

• More info here!

Related posts:

1. Zappone and Gilligan receive European honour
2. Setback in fight for marriage equality in Ireland
3. Congratulations, Senator Zappone

Previously, we looked at the family home and finance and immigration and legal procedures. Today in the final of our Missing Pieces articles, we examine the issues affecting parents and children, as well as other miscellaneous issues.

• Parent and child

The findings of Marriage Equality’s audit reflects the concerns already raised by the Ombudsman for Children over the Civil Partnership Bill. Marriage Equality describes “a legal vacuum affecting children being raised in same-sex headed families”.

25 differences in relation to the legal relationship between a parent and their child are identified. For example, adoption: same-sex couples cannot jointly adopt, even though individuals may be considered for adoption regardless of sexual orientation.

Another example relates to guardianship and custody: it is not possible for same-sex couples (or a partner of a same-sex couple) to apply to the courts for these.

An additional example is maintenance: all children, including non-biological children, of married couples are covered by maintenance rules, but this is not the case for children raised by same-sex couples.

Marriage Equality states that there is a deliberate omission of existing provisions in family law which recognise non-biological children (for example, step-children) as dependent children, within married families.

The organisation supports the view of the Ombudsman for Children, who has drawn attention to the serious consequences for children that this approach will have and that this differential treatment of children under the Civil Partnership Act – especially when compared with the relationship between children and step-parents under Irish law – could violate international human rights instruments, to which the Ireland is party.

• Miscellaneous

The final section of the audit covered all remaining provisions identified in the review of existing legislation. 17 differences were found, and focus mainly on the age of majority and administrative provisions in relation to the making and keeping of records by the State.

On the age of majority, the report highlights that, as civil partnership is only available to people 18 years and over, the rights which flow to a person under the age of 18 and who is married, are not accessible to young LGBT people in the same situation (for instance, being able to apply for a passport in their own name without a guardian’s signature).

Also revealed is the fact that civil partners do not have the same rights under the Freedom of Information Act (FOI), a serious issue particularly following the death of a partner. For instance, a bereaved civil partner cannot apply under FOI to correct personal information, unlike spouses. (See also Office of the Information Commissioner.)

• Some notes:

- A “Constitutional Convention” is due to take place next year to look at various constitutional issues – including, perhaps, the concept of marriage?

- The Supreme Court has yet to rule in the Zappone and Gilligan case, due to be heard later this year.

- Marriage Equality is due to release a separate report on the Social Welfare Code and the differences between civil partners and married spouses next year. Due to the extensive legislation and rules which govern Social Welfare, a separate audit and report is needed.

- MarriagEquality: Website / Twitter / Facebook / YouTube

• Previously:

The Family Home and Finance

Immigration and Legal Procedures

Related posts:

1. Missing Pieces: The Family Home & Finance
2. Missing Pieces: Immigration & legal procedures
3. Civil Partnership: “An abdication of legislative responsibility”

Yesterday, we looked at the family home and finance. Today, we examine the issues of immigration and legal procedures.

• Immigration

A key factor in immigration procedures generally is the fact that decisions are made largely on a discretionary basis (i.e. under non-statutory administrative procedures by the Minister for Justice or his officials), rather than based on legislation. In effect, therefore, those in civil partnerships are reliant on discretion due to the absence of legislative immigration provisions relating to civil partnership.

The findings of the Marriage Equality report highlight the gap between official policy – that civil partners will be treated equally to spouses for immigration purposes – and the legislative reality, and reveals over 22 differences in treatment under immigration law and regulations.

Legislation: Only two sections in the Civil Partnership Act relate specifically to the immigration status or entitlements of civil partners:

The first concerns diplomatic immunity, and extends such immunity to civil partners.

The second provision relates to refugees. Under the Refugee Act, a person who is recognised as a refugee has the right to apply for family re-unification. The Civil Partnership Act allows such persons to make an application for family re-unification in relation to a civil partner.

(This is somewhat curious, I think: typically, family re-unification applications relate to family members who are not in Ireland. Ireland’s Civil Partnerships can only take place under Ireland’s jurisdiction, however. So how could it arise that a refugee in Ireland would have a civil partner abroad? Unless the person has entered Ireland for the purposes of the civil partnership ceremony and (maybe) has subsequently left? Or perhaps the couple has been married/partnered/unioned already in another jurisdiction and are seeking to have that recognised by the State as a civil partnership? Is that likely? But I digress..)

A person who does not meet the criteria of being a refugee, may nevertheless qualify for what is called subsidiary protection. (For instance, a person may not be persecuted for a particular reason, but may still be at risk if they return to a situation of armed conflict.) As with recognised refugees, a person who is eligible for subsidiary protection may apply for family re-unification, including their spouse. Notably, this right has not been extended to include civil partners.

So, if I’ve got this correct, this leaves us with the following situation regarding people who are entitled to international protection: heterosexuals can apply to have their spouse join them in Ireland if they are a refugee or have been granted subsidiary protection; homosexuals can apply to have their civil partner join them in Ireland if they are a refugee, but not if they have been granted subsidiary protection.

Lawyers, sharpen your quills!

Ministerial discretion: Apart from the issues of diplomatic immunity and recognised refugees, in all other immigration matters (including the above subsidiary protection issue), the equal treatment of civil partners depends on the exercise of discretion, rather than legislative entitlement.

A significant finding of the audit is the failure to include civil partners in the definition of ‘qualifying family members’ under EU free movement regulations. This may mean the Irish government is in breach of their obligations under this EU directive. (The EU directive is implemented into Irish law by regulations.)

Furthermore, in the event of divorce or annulment between a non-EU and EU citizen, under the same EU directive family members retain their right of residence. The regulations in Irish law are silent, however, when it comes to the dissolution of a civil partnership.

This potentially means that, an ex-civil partner of an Irish citizen is liable to deportation upon the dissolution of their registered civil partnership, and is reliant on discretionary immigration policy to ensure that is not the case.

As a result of the approach taken to deal with civil partnership immigration issues through the exercise of discretion, rather than by amending immigration legislation, the Marriage Equality report highlights that civil partners are left without the protection and certainty of the law.

• Legal procedures

The audit of legal procedures covered a broad range of legislation, including: the formation and dissolution of marital relationships; minimum age; recognition of foreign marriages; gender identity; and testimony during legal proceedings.

The audit uncovered 62 differences between the treatment of married and civil partner couples. Many of the differences have symbolic significance as well as legal and practical implications for same-sex couples who have registered a civil partnership.

Engagement: There is no equivalent legal status to engagement for civil partners. This means that provisions within the Family Law Acts governing disputes in relation to gifts and property of an engaged couple who end their relationship have not been extended to same-sex couples planning to register a civil partnership.

Minimum age: Someone under the age of 18 can marry where they acquire a waiver from the court. There is no provision under the Civil Partnership Act for a person under the age of 18 to acquire a court waiver to enter into a civil partnership.

Foreign marriages and civil partnership: Unlike marriage law, there is no provision allowing the courts to recognise foreign civil partnerships and same-sex marriages. Instead, that power is reserved for the Minister for Justice: the Civil Partnership Act allows the Minister to designate certain classes of relationships entered into abroad as having the same legal effects as an Irish civil partnership. There is no obligation on the Minister to recognise a class of foreign relationship, however; rather (and this is comparable with the situation regarding immigration and discretion), the Minister has a power to do so using statutory instruments (i.e. secondary legislation).

The effect is that if the Minister has not included a certain jurisdiction in the statutory instrument, then a couple seeking recognition of their foreign marriage/partnership/union from that jurisdiction will have to wait until (or, if) the Minister does include it at a later stage.

In any event, a foreign same-sex marriage will only be recognised as a civil partnership (as, for example, in Canada, Spain or the Netherlands, where there is full marriage equality).

Trans* rights: Currently in Ireland there is no legal mechanism to recognise a person’s preferred gender identity other than the gender that was recorded for them at birth.

The Gender Recognition Advisory Group (GRAG) – established to advise the government on gender recognition legislation for Ireland – has recently published its report and proposes establishing a scheme for legal recognition, however.

Disappointingly, their proposals include a recommendation that applicants who are married be excluded from the scheme. This means that an already married transgender person will be required to divorce their spouse before they can have their preferred gender legally recognised.

Likewise, any transgender person who is in a registered civil partnership will need to dissolve their civil partnership, if they wish to apply under the scheme.

Read more about the GRAG report here.

Interestingly, Marriage Equality notes, GRAG stated that registered civil partners acquire less protection from registering their partnership than spouses acquire from civil marriage: In outlining their argument to exclude a civil partner from the right to apply to be recognised in a different gender, it stated that “such a scenario would effectively result in a State-recognised opposite-sex relationship that does not benefit from the full protection afforded to marriage”.

Separation and dissolution: While married couples have the option of executing a separation agreement, obtaining a judicial separation, or obtaining a divorce, the Civil Partnership Act makes no provision for civil partners to apply to court for a judicial separation.

This means that, while civil partners can execute a deed of separation, if no agreement can be reached they have no choice but to apply for dissolution of their registered civil partnership.

In practice, separated opposite sex couples do not always opt for the finality of a divorce and prefer instead to legally separate. This may have to do with the economic dependency of one partner on the other or where children are involved, to avoid further distress or change for them.

Whatever the reason, judicial separation provides these couples with a mechanism to legally sort out the issues surrounding their separation; this is not available, however, to civil partners who wish to separate.

Period of separation: Civil partners must be living apart for 2 of the previous 3 years in order to apply to dissolve their partnership, whereas spouses must be living apart for 4 of the previous 5 years to apply for a divorce.

Marriage Equality’s report notes that while this is not equal treatment, it may be more sensible treatment and partly helps to make up for the lack of option to apply for a judicial separation in the Act. It reinforces, however, the greater importance afforded to marriage by the Irish State, with more onerous criteria to be met in order to dissolve a marriage when compared with a civil partnership.

Mediation requirement: To obtain a divorce there is a constitutional requirement for the married couple to consider mediation, and divorce legislation obliges solicitors to advise clients about what mediation services are available.

There is no such requirement in respect of civil partners who wish to dissolve their partnership and therefore no such obligation on solicitors, again demonstrating the greater importance afforded to marriage by the State.

In fact, when the Civil Partnership Bill was making its way through the Oireachtas, the then Minister for Justice, Dermot Ahern, justified this difference in treatment by reference to the risk of “upsetting the constitutional balance” and to “maintaining a distinction between marriage and civil partnership”; he did not elaborate on that, beyond referring to (though not specifying) advice received from the Attorney General. He stated that the government was “erring on the side of caution” by taking this approach.

Children: An example of the almost total lack of provisions relating to the children of civil partners emerged in this section under the laws governing dissolution. (Marriage Equality dealt with the overall issue of parents and children separately, however. See our next article on issues relating to parents and children.)

Criminal trials and the giving of evidence: Legislative provisions relating to the giving of evidence in a criminal trial highlight serious differences in treatment of the marital relationship versus civil partnerships.

A legal principle exists that spouses cannot be compelled to testify against one another. Two main justifications for this are: the principle of unity, i.e. the principle that for some purposes (although not all) husband and wife were considered as one by the law; and that there is a public interest in avoiding discord within the marital relationship – a recognition that testifying against one’s spouse, particularly if compelled to do so, would risk disharmony within the relationship.

These provisions have not been extended to civil partners, meaning that a civil partner may be compelled to give evidence against his or her partner, despite the potential problems this may create between the couple.

Next:

• Parent and Child, and Miscellaneous Provisions

Previously:

• The Family Home and Finance

Related posts:

1. Missing Pieces: Parent & child, other issues
2. Missing Pieces: The Family Home & Finance
3. Civil Partnership: “An abdication of legislative responsibility”

Chapters 2 and 3 of the Report looks at the issues of the family home and finance, respectively.

• The family home

At yesterday’s launch, Dr Judy Walsh of the UCD School of Social Justice noted that many of the aspects highlighted by the audit radiate from the failure to recognise families and the relationships between parents and children (including non-biological children).

The legal differences between civil partnership and marriage are spread a range of issues – from additional ‘red tape’, to a serious lack of protection and support for civil partners and their families at times of crisis.

In relation to the family home and the protections afforded to it under Irish family law, there were found to be 25 differences. One such difference is in the terminology used to describe the home of civil partners as a “shared home”, and not as a “family home” as with married spouses.

Significantly – and worryingly – children are omitted from the provisions relating to the “shared home”: under the Family Home Protection Act, the definition of a dependent child in the “family home” extends beyond biological or legally adopted children, and includes non-biological children, “where one [married] spouse has knowingly treated a child as a member of the family” – thus recognising the need for children in these circumstances to be protected.

Despite this existing broad definition, however, dependent children are omitted from such protection in the “shared home” provisions of the Civil Partnership Act, and therefore no protection is afforded to a child and the child’s home by these provisions.

Similarly, there is a lack of home protections for civil partners who are deserted – this could mean, for instance, that where a person in a civil partnership has been deserted by their partner, the latter may dispose of the “shared home” property in court; the law relating to a deserted spouse in the “family home”, by contrast, prevents the deserting spouse from so acting.

There are also a lack of provisions to include the hardship suffered by a spouse in the assessment of certain relief housing grants.

• Finance

A wide range of provisions fall under the umbrella term of finance, including taxation, employment, pensions, and other miscellaneous provisions which deal with financial matters, and a total of 18 differences were identified.

Importantly, this part of the audit included a review of more recent legislation, including the Finance Act (No. 3) 2011. This review found that, while the current government appears to be taking a more progressive approach to extending rights to registered civil partners and their children, Civil Partnership as a separate unequal institution, is of itself a structural barrier to achieving equality.

Taxation: The tax treatment regarding “separated” spouses includes those who are “separated but living under the same roof”, a provision which may be especially important in the current climate, where it may not be realistic or viable for the spouses to sell the property; no such treatment applies to a civil partners.

According to Marriage Equality’s report, tax legislation can only operate within the confines of general law, which means where the Civil Partnership Act does not achieve equivalence, tax changes are subject to these limitations also. This may explain the differences outlined in the report, and was the reason given by the Minister for Finance for rejecting proposed amendments to address these inequalities, prior to the Civil Partnership Bill’s enactment.

Therefore without equal access to civil marriage, the consequence for same-sex couples appears to be that civil partnership has created a structural barrier to achieving full equality, in the area of taxation.

It appears that in the areas of employment and pensions, however, equivalence in treatment for civil partners has been achieved when compared to spouses.

Other finance issues: The audit of the other miscellaneous provisions examined found six differences in treatment. Four of these differences are in relation to provisions regarding civil legal aid.

One of the provisions sets out a specific exemption for engaged or cohabiting opposite sex couples, which allows them to apply for legal aid in respect of a property dispute. This exemption has not been extended to same-sex couples, who are engaged, nor to same-sex couples who are cohabiting.

Again this difference highlights a structural inequality between civil partnership and civil marriage as, with no legal concept of engagement for civil partners, it is not possible to replicate this important exemption. The lack of equivalence for cohabiting same-sex couples seems to be based on the wording of the section of the Civil Legal Aid Act, which defines cohabitating, as two persons who are living together as man and wife.

NB! Social welfare: The Social Welfare code has significantly more legislative amendments and regulations enacted each year. This made the audit of this area particularly challenging and more time is needed to ensure that every regulation and act which remains in force has been examined.

Therefore this part of Marriage Equality’s audit is ongoing, and a separate report on the findings will be published in the early part of 2012.

Next:

• Immigration and legal procedures

• Parent and Child and Miscellaneous Provisions

Related posts:

1. Missing Pieces: Parent & child, other issues
2. Missing Pieces: Immigration & legal procedures
3. Civil Partnership: “An abdication of legislative responsibility”