I have always regarded myself as a liberated person but I must say there has been an unusual spring in my step since last Thursday and I have genuinely breathed more freely.
This is for me a happy day for my fellow legislators have chosen, as the law makers of a free and independent republic, to liberate the gay community from an oppressive, corrupt and deeply damaging law, whose origins are shrouded in the mists of ancient religious prejudice. Although I regret that this Bill did not originate in the Upper House, as it had been at first intended, I cannot do other than commend today the courage and clarity of the Minister's handling of the passage of the Bill through the Lower House and the humanity she demonstrated, not only in her opening words introducing the legislation but most particularly in her final reply before midnight on that historic day when she dealt effectively, and with dignity, with a number of contentious speeches from the back benches. Such reform had been made part of the Programme for Government by the Progressive Democrats some years ago but this was never acted upon. I would also like to thank the Labour Party and in particular the Minister for Equality and Law Reform Deputy Taylor, for ensuring that on this occasion the Government's nerve did not falter.
I have already stated in public my disappointment at the fact that, at a late stage, the Fine Gael Party, acting against the advice of its own Front Bench, sought through a series of mean minded and unfortunately motivated amendments, to introduce some measure of marginal discrimination. I am thoroughly disgusted that Fine Gael has sought to continue this lamentable performance in this House; it is a disgrace to that party. However, I would like also to place on the record my gratitude to those humane and civilised members of that party who, by the technique of filibuster, managed to prevent these regrettable amendments from their own party being reached and voted upon. I expect no less of any decent Fine Gael Senators. It took courage, tenacity and humour to achieve this.
By effectively wiping the lingering shame of a British imperial statute from the record of Irish law, our colleagues in the Dáil have done a good day's work. I confidently anticipate that we in this House will complete that work honourably. I have always said, in defiance of comments from abroad, that the Irish people were generous, tolerant, decent and compassionate and that this would one day be reflected even in that sensitive area of the law governing human sexuality.
By enacting such a law in what is admittedly a delicate area, we are extending the human freedoms of all citizens in this State. As the great apostle of Catholic emancipation Daniel O'Connell said, in pleading his case at the bar of British public opinion, human dignity and freedom are not finite resources. By extending these freedoms to others, one's own freedom is itself enhanced and not diminished. This is the kind of Irish solution to an Irish problem of which we, as Irish men and women can feel justly proud.
Surely it would have been odd had it been otherwise. In granting equality under the criminal law to gay citizens the Minister, in the legislation she is recommending to this House, is not bowing to the ridiculous demands of some eccentric pressure group. She is, on the contrary, following the clear dispassionate advice of our own expert Law Reform Commission in their reports on vagrancy, rape, sexual offences against the mentally handicapped and the problem of child sex abuse.
Moreover, full decriminalisation, with an equal age of consent, has been urgently called for by the World Health Organisation as a health measure against the spread of venereal infection. In addition, just such proposals have either been welcomed or called for by the Irish Congress of Trade Unions, the Church of Ireland, the Council for the Status of Women, the National Youth Council of Ireland, as well as by many of the political parties represented in the House today.
We already have in place certain articles which clearly indicate that the feeling of the Irish Parliament and people is set against the discriminatory practices of previous ages. For example, since the late 1970s when I succeeded in persuading my union, the Irish Federation of University Teachers, to send forward resolutions on the matter to the annual conference of the ICTU, the trades union movement in this country has solidly backed the struggle for equal treatment. In 1988, in a highly significant move, the then Minister for Finance, Ray MacSharry, introduced a binding code throughout the Civil Service outlawing discrimination on the basis of HIV status, full blown AIDS, as long as the capacity to work remained, and sexual orientation. This House saw the first successful battle to introduce sexual orientation clauses into Irish legislation in both the Video and the Incitement to Hatred Bills. This is not a revolution, but rather the culmination of a growing awareness of injustice and discrimination in our society.
It would be tedious and wrong of me to inflict an academic lecture on the House on this occasion. Nevertheless, some glance at the source of this legislation is I think relevant. Those who believe that there is an innate horror of homosexuality occurring generally throughout mankind in history are wrong. Some kind but anonymous correspondent sent me an article from a Jewish newspaper yesterday morning. entitled "Judaism and Gays: A Faith Divided". In this, the American lecturer Denis Prager examines from a hostile point of view, the question of homosexuality. Although I do not agree with his opinions, they are founded upon an accurate historical assessment and I quote from the article:
Prager begins by noting that Judaism alone among religions of the ancient world opposed homosexuality. In Greece and Rome, among the Phoenicians and the Canaanites, a man's preference for other men was of no more consequence than another's choice of beef over mutton.
This is indeed a fact, although one might well have included other civilisations such as the Egyptians who also celebrated homosexuality officially to such an extent that not only ordinary mortals but even their gods engaged joyfully in homosexual relations. It was for this practical reason that the Old Testament Children of Israel sought to define themselves against the stronger surrounding cultures by outlawing and condemning as blasphemy something that was widely regarded in the ancient world as an integral part of the culture of the main civilisations.
The proscription on sexual activity of a non-reproductive kind also had the incidental advantage of increasing a small and vulnerable group. This, naturally enough, is reflected in the commands of Jahweh to the ancient people recorded in Genesis: "Go forth and multiply". Whatever relevance this command may have had to a threatened tribe 4,000 or 5,000 years ago attempting to survive in the desert in hostile circumstances, that relevance must surely be questioned today with the world population set to double in the next 25 years. I cannot but admire the gusto and lack of restraint with which my heterosexual colleagues have carried out the commands of God in this instance, although not in many other.
For amateur theologians, it is worth recalling that the principal attack upon homosexual practice is contained in the Book of Leviticus in a section which deals mainly with dietary codes. It is remarkable that the same harsh penalties as for homosexual behaviour are also held to exist for the eating of shellfish or the wearing of worsted cloth. I have yet to hear of a campaign by An Bord Iascaigh Mhara or the Textile Board for full implementation of the Code of Leviticus in Irish law. In other words, we have sensibly understood the concept of historicity, the fact that even sacred texts must be seen in their social, cultural and historical context and not uprooted and transplanted unexamined into modern life.
It is clear from what I have said that the source of the taboo for homosexual behaviour can be found in ancient religious codes. This is reflected even in the language of the legislation which we are setting about to dismantle this afternoon. Even the terms ‘sodomy" and "buggery" have roots in the religious power struggle. Sodomy comes from the tales of the cities of the plains, Sodom and Gomorrah, a tale in the Old Testament whose development is complex and difficult to interpret. Anyone who seeks enlightment on this point could do no better than to consultThe Church and the Homosexual, by the distinguished Jesuit biblical scholar, Fr. John McNeale, S.J. Buggery comes from the middle French boulgre, meaning Bulgarian, because of the attempts by the Vatican to smear the adherents of the Albigensian heresy, seen as Cathars or Bulgars, with a reputation for unorthodox sexual practices.
It is also worth nothing that the behaviour which is this afternoon in the process of being discriminalised was, until the 16th century, a matter for the ecclesiastical rather than the civil courts, a question of sin rather than crime. It was only when King Henry VIII incidentally took control of the ecclesiastical courts that this behaviour made the transition from sin to crime for the first time, in an Act of Henry VIII of 1533. Under this law, the possible penalties included death and forfeiture of property. The first recorded conviction was that of a clergyman, Reverend Nicholas Udall, headmaster of Eton and author of the first English comedy "Ralph Roister Doister". It is instructive to note that the first Irish victim of this law whose conviction and execution came a century later was also a clergyman, Bishop John Atherton. There is a grisly appropriateness about his end since he was the very cleric who, having noticed the failure of this law to extend to Ireland, mounted a "save Ireland from sodomy" campaign. This campaign was so successful that he paid for its introduction with his own life, hoist, one might say, with his own ecclesiastical petard — let bishops beware.
This law survived with its provision for capital punishment until 1861 when in the Offence Against the Person Act of that year, which now seems a harsh and unsustainable enactment, the penalty was reduced from death by hanging to a possible term of life imprisonment. The last execution took place in Scotland in 1830. I need hardly say that to the modern imagination the judicial murder by the State of two of its citizens for consensual erotic activity is morally repugnant.
The other law which mercifully will vanish from our Statute Book as a result of our deliberations is the so called La Bouchere Amendment of 1885. This was introduced late at night in the British Parliament as an adjunct to a Bill to which it had no connection and criminalises what it describes as "acts of gross indecency between males." Because there is no definition of precisely what constitutes gross indecency this remained to be determined by case law.
It will I am sure surprise and horrify the House to learn that in the 1950s two airmen in Britain were sentenced under this Act for the crime of having looked lasciviously at each other. This gross invasion of human relationships would threaten all of us if it were allowed to remain in force. However, the Garda and the Irish courts have shown a great deal more common sense than their British counterparts. The 1885 Act has been aptly described as a blackmailers charter.
The modern gay liberation movement effectively started in the late 1960s in the United Sates of America by analogy with the struggle for black and women's civil rights. By the early 1970s these ideas had spread to Ireland. I and many other people were involved in those early movements and among the tasks which confronted us was that of dealing with a considerable number of men who were arrested in what appeared to be compromising circumstances.
It has been said that there have been no prosecutions for over 40 years, but this is not the case. In the 1970s when gay people were arrested, we defended them so successfully that with within a few years the number of arrests by young police officiers anxious to accumulate a high score of convictions had dropped to virtually nil. But I do remember very clearly the humiliation caused to those accused even when we secured their acquittal. In particular I recall one occasion when a young man was forced in the Dublin District Court to describe in detail and repeatedly an act of fellatio or oral intercourse in which he had engaged with another man in the Phoenix Park. The judge amused himself by making comic remarks about this particular practice to the huge enjoyment of those in the body of the court and to the understandable human distress of the accused. I should also point out that within the last couple of years the 1861 Act has been invoked by a judge in a case involving the accusation of rape by a man upon his wife which was successfully defended through a plea of consent, whereupon the judge relied upon the provisions of the 1861 Act which held that regardless of consent an act of buggery even between husband an wife was a criminal matter and sentenced the man involved to a term of imprisonment. This was a spectacularly unsavoury case but it does highlight the fact that one can never presume the total inertia of the law.
By 1974, partly as a result of our experience in the courts and partly because many of us with our new found dignity as members of the gay community found the notion of being labelled criminal offensive, we decided to go on the offensive and to sue the State of Ireland in the High Court in order to demonstrate that the existing provisions of the law conflicted with the notion of civil and human rights in Ireland and were, therefore, unconstitutional. We mounted a powerful case involving international expert witnesses. Our intention was to end the conspiracy of silence that has for so long surrounded the subject of homosexualaity from the days in which it was described as thepeccatum, illud horribile, inter christiani non nomindaum, that crime which is so horrible that it must not be mentioned among Christians.
In his judgment, Mr. Justice McWilliam found that he was persuaded by our evidence that there was a large minority of people in the State who were homosexual, that they were not mentally retarded, that they were not emotionally sick, that they were not child molesters and the list went on until we were convinced that we had won. However, at the last minute there was a swerve in the judgment and the learned judge found that he could not determine in our favour because of the Christian and democratic nature of the State. The case has been built around my own experience as a gay man. Although the ideal would have been to get one of our clients, as a victim of the law, to challenge its constitutionality, understandably no one was prepared to do so.
One of the principal elements of my case was the fact that in the late 1960s I had collapsed in a Dublin restaurant and was rushed to Baggot Street Hospital with a suspected heart attack. After examination it emerged that what had occurred was an anxiety or panic attack rather than a heart attack. Having been referred for counselling the sources of this anxiety emerged as the recent death of my mother, the emigration of a close friend and the fact that subconsciously I had apparently felt deeply threatened by the existence of the criminal law. I was referred to a psychiatrist whose advice to me was to leave this country forever and find refuge in a jurisdiction where a more tolerant attitude towards homosexual men prevailed, specifically the south of France. This well-meant advice I found deeply offensive. I ask this House to consider how any Member would feel if they were professionally advised to leave their country merely on account of something over which they had as little control as the colour of their hair. This outraged me and propelled me into the moves that led to the foundation of the Irish gay rights movement. It also proved useful in putting together a legal case.
When we appealed to the Supreme Court we got another moral and intellectual victory but a divided judgment. On the one hand the Chief Justice argued that the criminal provisions of the law were necessary in order to induce homosexual men into marriage. This struck me as a peculiar view of that sacred institution. I was not however surprised when within a couple of years, one of those judges who had collaborated in this opinion, unburdened himself in a case involving nullity of the view that if a gay man contracted a marriage it was not by virtue of his orientation, a valid marriage in any case. This was what one might reasonably describe as a no-win situation. Gay men were to be terrorised into marriage by the full vigour of the criminal law, but once inside that institution it turned out to be a mirage rather than a marriage as a result of their sexual orientation. It defeats me how the family can be thought to be supported as an institution by these irrational views.
Moreover, anyone who thinks that the criminal law has remained a dead letter would do well to read the transcript of my case in the European Court of Human Rights which was ultimately successful thanks to the brilliant legal work of my then counsel, now President Mary Robinson. She unearthed a series of cases in the matrimonial court in which the learned judge had stopped evidence being given by one of the spouses in a marriage to the effect that he was and continued to live as a homosexual after the marriage. This stopping of the evidence was done on the basis that if it continued the judge would feel required to refer the book of evidence to the Director of Public Prosecutions and a criminal prosecution might well have followed. In other words, what I am saying this afternoon is that despite appearances to the contrary, the provisions of the criminal law continued and will continue until they are extinguished by our acts to exert a malign social and legal influence upon the population of Ireland.
It has been argued, however, on abstract grounds that this change in the law is a retrograde step because homosexuality is an unnatural practice. It may be useful to inquire the way in which this word "natural" is used. The American researchers and sociologists Margaret Meade, and Forde and Beech found in their surveys of primitive societies that in 67 per cent of these societies, man in his and woman in her natural environment, homosexuality was accepted and to some extent institutionalised.
Turning to the animal kingdom, the distinguished scientist Wainright Churchill has established that homosexual behaviour occurs throughout the mammalian order in nature, increasing in frequency and complexity when one ascends the phylognenetic scale, and the most wonderful intelligent and endearing of marine mammals, the dolphin, is among those non-human creatures that have been known to establish life long monogamous homosexual relationships.
One must, therefore, question the sense in which the word "natural" is employed. It is clearly a theological derivative of the Roman Catholic notion of natural law, but even here one can raise a question mark. The great theologian St. Thomas Aquinas actually instanced the existence of homosexuality as an example of his proposition that what is natural for the individual may be unnatural for the species andvice versa. In other words, to force a homosexual man to behave heterosexually is just as much a violation to his nature as it would be to force a heterosexual man to behave homosexually.
This leaves us with the problem of what God intended, if one is a religious person and I am. I have heard repeated again the hoary old joke God made Adam and Eve, not Adam and Steve. This is an unnecesarily narrow view of God's intellectual horizons. I have no reason to doubt that God created both Adam and Eve, and Adam and Steve. If God did not create Adam and Steve, then who did? It is also simplistically argued that the same God designed the various organs of the human body for specific purposes. This is an argument persistently engaged in by those right wing pressure groups whose minds are firmly stuck in the human plumbing. I do not intend to venture too far into this distasteful area of controversy but I may point out that when the late Member of this House and Nobel Prize winning poet, William Butler Yeats, wrote in "Crazy Jane talks to the Bishop" that
... Love has pitched his mansion in
The place of excrement;
he was speaking of heterosexual and not homosexual love. I wonder if my friends in the misnamed organisation Family Solidarity would seriously suggest that because the penis is used for the purposes of bodily elimination it should be restricted to this function and not employed in sexual relations.
I only make this point because Members of both Houses have been inundated by these groups with squalid pamplets purporting to describe in lurid detail the grosser aspects of what they imagine to be common sexual practices in the gay community. The apparent source of this material is something described as the Canadian Intelligence Service which seems to me in this case to be a contradiction in terms.
Disease has also disreputably been invoked as an argument by these same groups. I am very glad of the Minister's wise words in this area. They have used the tragic situation with regards to AIDS as a stick with which to beat the gay community. This is, to my mind an unspeakably sad and disreputable thing to do. May I place on the record the fact that according to the World Health Organisation statistics the mechanism of transmission of the AIDS virus in 70 per cent of the cases reported on a global basis is straightforward heterosexual intercourse. The remaining 30 per cent is divided between intravenous drug users sharing needles, mother to infant transmission, use of untreated blood products for haemophiliacs and homosexual relations. It would be grotesque if I were to call for the banning of heterosexual relationship as a result of this information. Moreover, even were this disease confined entirely to the gay community, that would scarcely be an argument for legal repression.
There are certain diseases that are apparently confined to specific groups. If I may give one instance, sickle cell anaemia occurs only in the black population. It would rightly be regarded as abhorrent if these medical facts were used as the basis for a theory of racial inferiority. This is the direction in which, if one takes up this kind of argument, one will inevitably travel.
Let us remember it is but 50 years ago that gay people were systematically victimised with the complicity of Church and state in Germany under the Nazi tyranny when they were made to wear the pink triangle in the concentration camps as a badge of infamy. They were the first group to be incarcerated in the concentration camps, to be tortured, to be medically experimented upon and finally to be exterminated. The gay movement, of which I am proud to be a member, has adopted this pink triangle as its international symbol and turned a badge of infamy and shame into a badge of pride and humanity.
There is one other argument I would like to address. I heard in the Lower House one Member say that if this law were passed it would be the thin end of the wedge and he might have to witness the horrible spectre of two men holding hands at a bus queue. May I say that if his mind were to be genuinely disturbed by such a prospect then this mental balance is precarious indeed. From the cradle I have been brainwashed with heterosexuality. I have frequently witnessed the spectacle of young heterosexual couples holding hands and enthusiastically kissing at those very same bus stops and I merely wished them well and passed on my way. May I reassure the House that should two young men or two young women hold hands at a bus stop in Dublin, the island will not be overwhelmed by earthquakes and turbulence nor will the world come to an unexpected and sudden end.
It is, therefore, with pride that I welcome this Bill to the House in its provisions dealing with homosexuality. Young people will no longer have to grow up in the shadow of the taint of criminality which has blighted the vulnerable youth of so many of our citizens with terror and shame. The talent that has been destroyed and repressed in so many people will now be freely and generously available of the wider community and much of what has been unnecessarily squandered in the past will be added to the richness of Irish life. This, therefore, is in that sense a happy day.
Nevertheless, I cannot in conscience vote for this Bill in its present form. This is because of the provisions regarding the matter of prostitution. It would go hard with me to accept my liberation without a murmur at the expense of the victimisation of another vulnerable group. It is for this reason that I have put down a series of amendments opposing sections 6 to 13 of the Bill which seeks to criminalise prostitution. I believe that this is both unwise and ungenerous, although I perhaps understand the tactical reasons for which it was done, which were very successful, may I say. I shall argue the case against such provisions and in favour of the unlinking of the two issues of prostitution and homosexuality so that the matter of prostitution may be calmly and rationally considered at another date. I shall speak further on these issues when we come to deal with the particular sections in the Bill.
I wish to say how extraordinarily heartened and proud I was to be in the Dáil when this Bill was debated. I listened to the vast majority of speeches, in particular the speech of the Minister, Deputy Taylor, and, from the backbenches of Fianna Fáil, the speech of Deputy Power who really encapsulated the whole ethos of this discussion when he spoke of attending discos and dances and enjoying the delights of female company. He said he did not quite understand gay people but that everyone wants to love and be loved. That is the bottom line. I was also immensely heartened to hear the words of Senator Crowley who spoke with his usual eloquence and passion. I was very pleased, indeed, that he was able to do so.
May I put on the record my profound debt to the Irish Gay Rights Movement, the National Gay and Lesbian Federation, the Gay and Lesbian Equality Network and various other organisations. In particular, may I salute the presence here today of two of the co-chairpersons of GLEN, Susie Byrne and Kiernan Rose, who did very remarkable work. They are among the few who can be named.
The Minister is aware of the fact that some months ago President Robinson very movingly, invited leaders of the gay community to Áras an Uachtarán. This was a very important symbol and message sent to the Irish people that young gay men and women are part of the Irish family from which they have been excluded for so very long. I had breakfast with those who met the President in a little hotel at the foot of the hill near the Phoenix Park. There were about 30 or 40 of us. Somebody asked how many were prepared to have their photograph taken with the President. Only about half of these people, who are leaders of the gay community, who are "out", were able to place themselves in that position. I remember with great pride one young woman from the west of Ireland who said she was delighted to be there despite the fact that her parents had told her that if she presented herself at Áras an Uachtarán and had a photograph taken with the President of Ireland she need not come home for Christmas. Many people have spoken of my courage but I had nothing like the courage of that young woman who took the decision to voluntarily exclude herself from a happy family celebration at Christmas so that she could make her presence visible in the company of the President of Ireland.
May I say on this question of my alleged courage in the lonely battle I had, I did not have any courage and it was not a lonely battle. It was enormous fun but there was agony, misery and shame before that. Before we founded the gay movement I knew very well what it was to wake up in the morning and wonder if I was indeed the monster that had been portrayed on television, in the newspapers and so on.
The establishment of the gay movement resulted in solidarity, the gay movement and community is one of which I am immensely proud, not only in their struggle for legal freedom but also in the magnificent way they have responded to the AIDS crisis. Once I made that connection I no longer felt in the slightest way isolated.
May I end on a slightly chirpy note which I think is appropriate to this happy day. On 1 April this year my engagement was announced to a charming young woman called Colleen O'Donoghue, and I deliberately chose the initials COD to indicate to the wise and particularly to the Joycean acrostic specialists that this was in fact an April fool's hoax. It got wide currency. I received an enormous mailbag and many telephone calls; not one of them was unpleasant or negative, they were all congratulatory, warm and human. Two of them, however, did cause me some worry because they said they were glad I had found happiness at last. I hope this Bill will be passed by this House despite the hesitation of Fine Gael. With that assistance I shall try to be happier in future.
I thank the Minister for her humanity, generosity and extraordinary political skill. As a political observer I recognise the clear risk she has taken in not taking the mean option taken by the British. They introduced parsimonious, badly drafted, ungenerous legislation. I thank the Minister in the names of the many thousands of gay people in Ireland.