This seminar on LGBT rights and legal change took place on Friday last (10th July) at Trinity College in Dublin.
The Speakers included Senator David Norris, Senator Katherine Zappone, Ann Louise Gilligan, Brian Sheehan of GLEN, and Professor Mark Bell of TCD.
The seminar was organised by Professor Ivana Bacik of TCD Law School, and Dr Mary Rogan (DIT Law) in partnership with PILA (Public Interest Law Alliance) the NWCI (National Women’s Council of Ireland) GLEN (the Gay & Lesbian Equality Network) and the ICI (Immigrant Council of Ireland).
The aim of the seminar was to explore the relationship between legal action and social change, and to promote debate on how Public Interest litigation has influenced social change in Ireland.
It was introduced by Professor Ivana Bacik, who gave an overview of what the seminar was about and introduced the speakers.
Dr Mary Rogan then spoke explaining that they wished to explore the stories of the individuals behind the litigation, and that the partnership between PILA, the WCI, GLEN and the Immigrant Council had 2 main objectives – to provide the opportunity to share experiences, and to help NGOs to use the law to effect legal change.
Rachel Power of PILA was up next, speaking about how groups can work together for social change, and how the legal system often collides with political systems so that social change cannot come about quickly, even when the people have moved on.
Brian Sheehan then spoke, and said he was glad to be speaking before David Norris, as David Norris was a very hard act to follow. He first mentioned that the Gender Recognition Bill had passed all stages the day before, almost unnoticed. He spoke about section 37.1, and Lydia Foy’s long battle, and how before this, change for transgenders was based on the medical model, but now, it is based on self-declaration, and now Ireland has one of the most progressive pieces of legislation in the world for trans people.
He also paid tribute to the litigants, saying it takes courage to become one, and how any change that comes about must be sustainable. These victories affect all Irish people and contribute to future social change. He also spoke about how cases can sometimes reverse progress and bring in regressive legislation. Changing the rules changes the culture, Brian said, and this changes the lived experience of people. This is why LGBT people must be out, vibrant and visible. There was a culture change as more LGBT became more visible, and with the legal recognition of LGBT parenting.
In explaining social sustainability, he cited the case of South Africa [the Civil Union Act 2006] where a change in the law regarding same-sex marriage did not bring social and political changes, and how in the US it took the Supreme Court to rule for federal rights for all to turn the tide.
He also said the courts were not activists, and we must use change to leverage further change. You may have equal status, but not systemic change, and we must make sure that all schools, for instance, include LGBT children. He paid tribute to Norris and Dudgeon for their courage and tenacity in taking cases to decriminalise homosexuality.
David Norris stood up next and said how he always resented criminal law which criminalised sexual behaviour. He cited a case where two airmen were charged years ago for “looking lasciviously at each other”, and also spoke of a time when he himself fainted, and was whisked off to hospital, where they told him being a homosexual was a danger to his mental health. He regaled us with some other personal stories which had the hall erupting with laughter.
He also paid tribute to various legal professionals who had helped him along the way, including Gareth Sheehan, who is now a judge. He also spoke of how there was subsequently a split in the gay movement in relation to the way forward, with some wanting to take a constitutional line. He also paid tribute to Mary Robinson and Paul Kearney, who is now a judge. He mentioned how, when his own case got to the European Court, where he was not allowed to speak, the Irish judge was the one who voted against him.
David Norris ended by saying that some political parties produce ministers “who have no principles whatsoever”, but that for the people who didn’t support him, he didn’t give a fish’s tit”. Again more laughter.
Ann Louise Gilligan was next to speak, and said how she had been a philosopher all her career. She said we have become very negative about the legal profession, but that in her case, she had come across extraordinary kindness from the legal profession, and such people as Ivana Bacik, Michael Collins and Ger Hogan. In her case, with wife Katherine Zappone, they were told only good could come of this case, but Ger Hogan said it would get harder.
She also told the story of a taxi-driver who collected her from the court, and asked if she knew what was going on there that day. She asked what, and the taxi-driver told her it was about two women who wanted their marriage recognised here. When she asked what he thought, he said: “What harm will it do?”She felt that this typified the Irish spontaneous response, which was also evident on canvassing for a Yes vote. She also told of how, after taking the case to court, she knew her job was in danger because of section 37, as the Archbishop was manager of St Pats, and although she didn’t lose her job, her recent promotion was rescinded until she indicated that she would fight it. At this point, a compromise was offered by the Archbishop, that she would hold the promotion for four years. She emphasised the importance of pro-bono litigation, and paid tribute to various people who had helped on the way, such as Brophy’s Solicitors Kevin and Phil, Noeleen Blackwell of FLAC and Ger Hogan who stated: The Constitution cannot be stuck in the perma-frost of time”.
Senator Katherine Zappone then spoke, and said that she was moved by the privilege to have the opportunity to be among such speakers.
She mentioned the #LoveWins campaign in the States, and how on June 26th last, it was a 5-4 decision at the US Supreme Court which brought in equal marriage in the United States, using the due process and equal protection clauses. She also mentioned that each country is using each other’s legal arguments, campaigns and experiences to win their cases, and how there is the potential to have a global impact on social change. She also quoted Mary Benotto who had said: “Those who fight us organise internationally, and so do we too”. Katherine said that there had been a seismic shift in the cultural foundations of Ireland, but that the impact of that change only drips slowly, and the ripple effect moves into streams and rivers which we can’t even see now. It must come about because of head and heart changes. She also emphasised the importance of Public Interest litigation.
Rounding off the list of speakers, Professor Mark Bell spoke of how the LGBT cause often starts with discrimination cases, which moves to anti-discrimination laws and then to family and adoption.
He said that equal rights at work, covered by the 1977 Employment Equality Act, was about general equality, but that this did not always protect LGBT people. He spoke about how cases taken at the time might not be successful, but may set up a climate for future success. Bell said that there was very little data about legal cases taken for LGBT discrimination, but that a low level of litigation doesn’t mean that legislation is ineffective, as cases may have been settled beforehand. However, it was of concern that there appeared to be so little use of the law.
Many didn’t want to reveal their orientation by taking a case, and hid it at work. Litigation raises awareness and visibility, and so there was a role for Public Interest litigation. He said that the law and policy should be used to further equality.
Ivana Bacik then took the floor again to thank the speakers, and a short Q&A session followed.
The seminar series forms part of a joint DIT/TCD legal research project, entitled Changing Ireland, Changing Law (CICL) #CICL funded by the Irish Research Council, additional contributions from the Trinity College Dublin Equality Fund, and the Arts & Social Sciences Benefactions Fund.
– M. Butler