EQUALITY IN IRELAND has come a long way in recent times, from the decriminalisation of homosexuality in 1993 to the introduction of equality legislation at the turn of the millennium (which prohibits discrimination in employment, access to goods and services, accommodation and education), and the Marriage Referendum in 2015.
Trans people can now have their gender legally recognised. Gay couples now have rights to adoption and some female same-sex couples can have both parents’ names on their children’s birth certificates.
These developments, while hugely important, do not mean the end of discrimination against the LGBTQI+ Community. We still have a long way to go before there is full equality in practice and we can deliver on the Constitution’s promise to hold all citizens equal before the law.
Discrimination still exists
Data from the EU Fundamental Rights Agency reported in 2019 shows that 18% of LGBTQI+ people surveyed in Ireland felt discriminated against at work in the prior year, with 38% reporting having experienced discrimination in at least one area of life, such as going to a restaurant, hospital or to a shop.
Discrimination can lead to higher rates of emotional distress, depression and anxiety, and may have serious adverse consequences for individuals’ financial, mental and physical well-being.
However, despite the extent of the discrimination being experienced by LGBTQI+ people, claims brought under the equality legislation are decreasing. This raises serious questions as to whether existing equality rights are sufficient and enforceable.
At present, there is no specific legal prohibition of discrimination in employment based on gender identity. There is no legal recognition of non-binary gender. So-called “conversion therapies” are not banned. Intersex children may experience medically unnecessary surgeries. Hate crimes based on sexual orientation or gender identity are not considered an aggravating factor in sentencing – all the more appalling given the recent acts of violence carried out against LGBTQI+ individuals seen in Ireland.
Legal rights
The extent of unmet legal needs in Ireland is neither well understood nor comprehensively researched. We have little empirical data about legal need or the social and financial consequences of this.
It is for this reason that Free Legal Advice Clinics (FLAC) has started a project exploring unmet legal needs in the LGBTQI+ community. The project also includes a pilot LGBTQI+ legal service, where people can seek access to free legal advice on issues related to their sexual orientation or gender identity, such as discrimination claims or family law queries. The official launch of the legal service will take place with Minister for Children, Equality, Disability, Integration and Youth, Roderic O’Gorman TD, on Monday.
A strong civil justice system increases social inclusion and is a vital tool in holding the state and other powerful bodies to account. There is an enormous social cost incurred in not having an effective justice system, and FLAC witnesses the social cost of injustice every day on our Telephone Information Line and in our Free Legal Advice Clinics.
For many, FLAC is the only source of information available and often there is nowhere to send individuals looking for further advice and representation. When over 2,000 people contacted FLAC about employment law cases in 2021, we had nowhere to send them for representation, as the current civil legal aid scheme does not cover this.
Legal reforms
Last year FLAC joined with 48 NGOs to campaign for a root and branch review of the civil legal aid system that would scope and map unmet legal needs. Following this successful campaign, the government has agreed to review the scheme for the first time in 42 years and FLAC is eager to participate in that review.
FLAC also successfully campaigned for a review of the equality legislation. That review is now underway. It must ensure comprehensive protection from discrimination for all LGBTQI+ people.
Legal solutions grounded in access to justice principles are not about resolving every matter through the courts. FLAC believes that access to justice is a continuum including information, advice, advocacy, access to the courts, access to an effective remedy and fair and just laws.
Broadening access to legal information could have the effect of addressing difficulties before they become very significant problems with life-changing consequences. This is why we have developed our LGBTQI+ Legal Clinic, with the financial assistance of the Department of Children, Equality, Disability, Integration and Youth.
We desperately need research to measure the volume and nature of unmet legal needs, so that we can then utilise evidence-led approaches to the design of legal services. FLAC’s LGBTQI+ project will explore an element of unmet legal need, but it is a long way from capturing the entire picture.
We hope that this legal service will provide assistance to some, but ultimately it is not a replacement for a comprehensive civil justice system based on access to justice principles. It is not an understatement to say that the absence of a fit for purpose civil justice system is now actively causing harm.
In 1993, the focus was on decriminalisation. 30 years on, we now have an opportunity to ensure meaningful full equality in practice. It just needs to be seized.
Eilis Barry is the CE of FLAC. FLAC is an independent voluntary organisation aiming to promote equal access to justice. You can contact the FLAC LGBTQI+ clinic by emailing lgbtqi@flac.ie The launch of this clinic is happening on Monday 30 of May at 5.30 pm.
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