Employment Equality (Amendment) Bill 2013: Second Stage

Senator Ivana Bacik

I move: "That the Bill be now read a Second Time."

It gives me great pleasure to introduce the Employment Equality (Amendment) (No. 2) Bill 2013. I welcome the Minister of State at the Department of Justice and Equality, Deputy Kathleen Lynch, and thank her for taking the Bill on behalf of the Government.

I also welcome to the Visitors Gallery representatives of many groups who have an interest in the Bill. They have campaigned for it for many years and are here to listen to the debate. Among them is the Gay and Lesbian Equality Network, GLEN, ICTU, the INTO and the Labour Party's lesbian, gay, bisexual and transgender group. Plenty of other groups will arrive shortly such as the Equality & Rights Alliance, the Equality Authority, LGBT Noise, BeLonG To, USI and OPEN. The ICCL is also represented here. There is a broad range of groups present. I welcome Deputy Aodhán Ó Ríordáin. It is always good to see Members of the other House attend. He has also campaigned for the Bill for a long time.

I am proud and delighted to introduce the Bill on behalf of the Seanad Labour Party group. My colleague, Senator Mary Moran, feels the same way and she will second the Bill. She is the Labour Party's education spokesperson in the Seanad. The Bill came from an initiative that I took along with Deputies Aodhán Ó Ríordáin, Ciara Conway, Dominic Hannigan and John Lyons. We believe that it is important and in line with long-standing Labour Party policy to bring forward legislation to change the current position as set out in section 37 of the Employment Equality Act 1998.

Most of the people present are well aware of section 37 and its provisions. It was amended by section 25 of the Equality Act 2004. Subsections (2) to (6) of the 1998 Act allow for certain exclusions of discrimination on particular grounds in certain employments, to allow differential treatment based on a characteristic related to a discriminatory ground where it constitutes a "genuine and determining occupational requirement" and where the objective of the differential treatment is legitimate and the requirement proportionate. However, section 37(1) of the 1998 Act is the contentious provision that today's Bill seeks to address. Section 37(1) currently provides that there is a specific exclusion of discrimination for religious, educational or medical institutions that are under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values.

That deals specifically with religious-run institutions, both educational and medical, and a third type which is religious.

The exclusion means that such institutions are not seen as discriminating if they give more favourable treatment on the religion ground to an employee or a prospective employee where reasonable to do so in order to maintain the religious ethos of that institution, or where they take action reasonably necessary to prevent an employee or prospective employee from undermining the religious ethos of the institution. To put it bluntly, therefore, a Catholic Church-run school or hospital can currently discriminate against, refuse to hire or even dismiss a person from the lesbian, gay, bisexual and transgender, LGBT, community, for example, because their sexuality may be seen to offend against the religious ethos of a church that is intolerant and prejudiced against homosexuality. Similarly, a school or hospital run by a religious body or the Catholic Church can discriminate against a lone parent employee or prospective employee because of religious doctrine against non-marital relationships. This provision in section 37(1) has been subject to criticism from many individuals, including the groups represented in the Visitors Gallery and many others. They include the Human Rights Commission, ICTU and teaching unions. For years, unions and civil liberty groups have been calling for the repeal or amendment of the existing law. These calls have been supported by numerous groups, including the National Women's Council. It has been Labour Party policy for many years to address this matter.

Section 37 has been particularly criticised because it confirms a controversial decision of the High Court from the 1980s - the decision of Flynn v. Power from 1985 Irish Reports, usually referred to as the Eileen Flynn case. As the Minister of State is well aware, Eileen Flynn was fired from her job in August 1982. She had been a teacher in the Holy Faith Convent in New Ross, County Wexford. The reason for the dismissal was that she was pregnant but not married. On a very dark day for the courts, the dismissal was upheld by the High Court on the grounds that the Holy Faith order was entitled to take action, including this most severe action of dismissal, to prevent its ethos being undermined.

The continued existence of a provision allowing an opt-out from discrimination - effectively allowing and enshrining the principle in the Eileen Flynn case in statute - has created a chilling effect for LGBT employees, single parents or any others who work or would like to work within religious-run schools or hospitals, and who may be at risk of being seen to offend in some way the ethos of the religion concerned.

Given how much Irish society has changed in the last few decades, it is truly remarkable that people working in schools and hospitals, the vast majority of which still have a religious ethos, are in fear of such action being taken against them for having children outside marriage, being gay or even divorced. There is a range of reasons involved. We believe that the chilling effect must be challenged and the climate of fear must now be consigned to the dustbin of history.

Deputy Aodhán Ó Ríordáin put it very well saying that, as a teacher, he knows only too well about the chilling effect section 37 can have on staff. People are afraid to be open about their private life among their peers. However, it has also denied many young LGBT people role models in their classrooms as it prevents teachers from being open about their sexual orientation. I know that Senator Mary Moran will speak more about that practical impact.

Last week we received the unanimous support of the Labour Parliamentary Party for the Bill. On Thursday, we published the Employment Equality (Amendment) (No. 2) Bill, which amends section 37(1). It significantly raises the bar which employers must reach if they wish to discriminate on the grounds of religious ethos. We hope the Bill will receive the support of all parties and I believe it will. The need to challenge homophobia is accepted across the political spectrum, including parties and Independents. I have been glad to receive support in principle from Senators David Norris and Katherine Zappone in particular for this initiative.

Two years ago the programme for Government stated that LGBT people should not be deterred from training or taking up employment as teachers in the State. Therefore, we believe that passing this legislation would represent a key programme for Government commitment. This is not just something that the Government parties believe. There have also been previous attempts by other parties to deal with this matter. I wish to pay tribute especially to Senator Averil Power on the Fianna Fáil benches who published a draft Bill last year seeking to amend section 37. Sinn Féin also published a similar Bill in recent weeks. I commend the Senator because when she put the Bill forward it was important that the issue be kept alive on the political agenda. Had the Bill not been put to a vote, it would very likely have been developed further as Government legislation and I hope we will see that outcome from this debate.

While we should support all these efforts to amend the law and keep the issue alive, it is important that whatever legislation is introduced should cover all nine grounds of discrimination in the original Employment Equality Act. In addition to the grounds of sexuality or marital status, these include family status, disability and all the other grounds that are provided for. Our Bill will cover all the groupings and grounds of discrimination in the existing equality legislation.

I will now briefly address the Bill's content and what it seeks to do. Its key purpose is to protect individuals against discrimination in an appropriate and balanced way, while respecting religious freedoms. The proposed amendment of section 37(1) would offer protections to staff of religious-run medical and educational institutions to a far higher degree than at present, but it still allows the institutions to maintain their religious ethos. However, the Bill provides additional protections for employees or prospective employees where health or educational institutions are in receipt of State funding. That is a critical distinction to be made.

Both the Constitution - Bunreacht na hÉireann - and relevant EU law make it clear that a balance must be struck between individual rights and religious freedoms. The Bill seeks to recognise that balance, but also seeks to ensure that the private lives of teachers and health workers should never be used against them again.

The Bill is short, containing just three sections. Sections 1 and 3 are technical. Section 2 is the substance of the Bill providing for the amendment of section 37(1) of the 1998 Act and inserting a new section 37(1). The new section 37(1) would preserve the right of religious, educational or medical institutions to discriminate by giving more favourable treatment on the ground of religion to employees or by taking action described earlier to prevent employees from undermining the religious ethos of the institution. However, a new part of section 37(1) provides that where an educational or medical institution is State-funded, that institution cannot give more favourable treatment on religious grounds unless such treatment does not constitute discrimination under any of the other grounds; and the religion of the employee must be a genuine, legitimate and justified occupational requirement. It, therefore, sets the bar much higher in respect of favourable treatment on religious grounds.

Similarly, the Bill provides that a State-funded institution cannot take action to prevent the undermining of its ethos unless by reason of the employment itself or the context, the action taken is objectively justified by a legitimate aim and the means used are appropriate and necessary. A final provision in the new section 37(1) provides for a presumption of discrimination - in other words, an additional hurdle for a State-funded institution to get over if it seeks to justify any discrimination.

The drafting may appear somewhat complex or cumbersome; the equality legislation is rather complex in its entirety. Frankly, however, the legislation is somewhat conservatively drafted. I would like to have gone further in the Bill, particularly in respect of the undermining of ethos provisions. We were advised, however, that EU Directive 78/2000 requires a somewhat more conservative approach. Article 4 of that directive gives protection to the right of churches to require individuals working for them to act with "loyalty to the organisation's ethos". I understand there is some suggestion that it requires a more conservative approach than is taken in the Bill. While it is radical in that it covers all the grounds of discrimination, I would personally favour a more robust approach to protect equality in the second aspect of the new section 37(1) which deals with the undermining of ethos. It is something that we could tease out on Committee Stage. I would welcome the input and comments from colleagues on both sides of the House on that particular issue. Once the Bill goes through Second Stage, as it will have to be referred to the Attorney General and Parliamentary Counsel, I hope we can see a more robust approach then.

I note that the Irish Council for Civil Liberties has described the Bill as creating a partial thaw in the chilling effect, but I hope it goes further than this. I think it creates significant additional hurdles for any religious-run school or hospital which seeks to justify discriminatory treatment. It would undoubtedly secure much greater protections for employees or prospective employees of such institutions. I am glad that members of the LGBT community, particularly in the teaching profession, have welcomed this measure. In addition, it has been welcomed in principle by the National Women's Council and trade unions.

I pay tribute to the Minister for Education and Skills, Deputy Ruairí Quinn, who has already produced an action plan to tackle homophobic bullying, and Mr. Neil Ward in the Minister's office who has been very helpful on this issue. In addition, the Minister for Justice and Equality, Deputy Alan Shatter, and the Minister for Health, Deputy James Reilly, have made it clear that they are determined to see the commitment in the programme for Government fulfilled.

Sadly, Eileen Flynn passed away in 2008, without seeing an end to the legal discrimination she suffered. This Bill, however, will ensure that no teacher or health worker will suffer the same fate. I commend the Bill to the House.

Senator Mary Moran

I also welcome the Minister of State to the House for the debate on this important Bill to amend section 37(1) of the Employment Equality Act which, when passed, will end finally the power of religious-run organisations or institutions to avoid employing or firing a person on the grounds of their sexuality or for being a single mother and will allow people to speak about their sexuality in the workplace. I also welcome to the Visitors Gallery members of the Gay and Lesbian Equality Network, GLEN, the Irish National Teachers Organisation, INTO, the Labour lesbian, gay, bisexual and transgender, LGBT, group and the Irish Congress of Trade Unions, ICTU.

Equality is a fundamental basic human right. Individuals in society have the right to seek gainful employment and to advance in that employment without being discriminated against because of personal characteristics unconnected with their work performance. The passing of this Bill will ensure that religious-run or controlled schools or hospitals no longer will be protected from discriminating against employees on the grounds of religious ethos because of their sexuality or because they may be single mothers. I am pleased this Bill fulfils the Labour Party's commitment in government to introduce legislation that will ensure greater employment equality, particularly for people who are in the minority, and will ensure that employees are protected against discrimination at all times based on their sexuality.

Our society has witnessed many changes on all aspects of life in recent decades. Everyone will agree we have moved and advanced quite a lot in recent decades. Politically, economically, socially, educationally and culturally, our country today is much more diverse, open and questioning than it was even a generation ago and this diversity is essential to help foster our ideas and to gain new perspectives. While I am now showing my age, one of my earliest memories on entering the teaching profession was the case involving Eileen Flynn to which Senator Bacik has referred, that is, the young County Wexford teacher who was fired from her teaching position simply because she was a single mother. In 1985 or thereabouts, after the case was taken, I remember it still being a huge topic of debate in every school, staffroom and house in the country. I consider this to have been one of the lowest periods for religious-run schools. As was noted, Eileen Flynn was fired simply because she was deemed to have gone against the religious ethos of the schools. Eileen Flynn's case showed up the hypocrisy of many others in religious-run schools. At the time, I did not realise how extraordinarily brave this lady was for not being afraid to bring her case to the courts, because it would have been much more difficult 30 years ago, and I am only sorry that almost 30 years later, it still is a topic for debate in the Oireachtas. I would like to believe we have moved away in recent years from such closed thinking and that a teacher or medical professional's merit is and should be based on his or her performance in the job rather than on his or her sexuality or on what goes on in his or her private life.

The recently published action plan on bullying urges a crackdown to prevent and tackle homophobic and transphobic bullying in particular in schools. I warmly welcome the plan, which will encourage schools to face the problem of homophobic and transphobic bullying. While it is there to protect the pupil, one must also protect teachers or medical workers who are afraid to reveal their sexuality in case they get fired. It is no good to state simply that one does not know of anyone who has been fired for this reason but one must be able to state categorically it will not be possible for any person to lose their job because of his or her sexuality. As an educator, I make the point that children in schools can be particularly astute at spotting weaknesses in others, including and sometimes in particular, their teachers. A teacher who is gay or lesbian and who does not feel protected within his or her job can often show his or her susceptibility within the classroom. This can be acted on easily and such teachers - or medical professionals in the case of hospitals - can become the target of indirect or sometimes even direct bullying. This leaves them in a position in which they could be afraid to report it to the school authorities, fearing it could affect their position within the school. This can leave them feeling isolated and withdrawn and can affect their daily working lives within the school. These of course are symptoms which can lead to further problems with mental health issues and, as anecdotal evidence suggests, could leave such people feeling suicidal because they believe they have nowhere to go. Teenagers who perhaps also are at a vulnerable age and who may have realised they themselves are gay or lesbian may perceive such a teacher to be a vulnerable person, which can in turn cause them to fear coming out and consequently, it becomes a vicious circle.

The Bill before Members is a response to the changes that are evolving continually in our society. Introducing legislation is one thing and I both welcome the all-party support that has been in evidence and commend Senator Averil Power on the Bill she introduced to the House last year. However, when the Bill is passed, as I presume and hope, no time should be lost because 30 years has been long enough to wait for this and I hope Members will witness its swift passage into law as soon as possible. I commend the Bill to the House.

Senator Averil Power

I welcome the Minister of State to the House and welcome that Members today are taking another important step towards the achievement of real equality in Ireland. I join Senators Ivana Bacik and Mary Moran in welcoming to the Visitors Gallery people from groups that have worked for a long time to achieve the end to the discrimination under discussion today. It is hard to believe that in 2013, a person still must fear that he or she could be discriminated against by an employer solely on the grounds of being lesbian, gay or bisexual or because he or she is an unmarried parent or is separated, divorced or cohabiting outside marriage. Unfortunately, however, this still is very much the case for teachers, doctors and other staff of religious-run schools and hospitals. As other Senators have observed, under current Irish law such bodies may discriminate against employees on the grounds that their sexual orientation, gender identity, marital status or family status is a threat to the religious ethos of the institution. Thus, employees may be penalised not because of anything they have said or done in their workplace but simply because of who they are. It is utterly unacceptable to me and should be equally unacceptable to all Members that publicly-funded institutions can discriminate against employees or potential employees on such grounds.

As Members are aware, the current situation is a source of real fear and unhappiness for LGBT staff in particular. Many teachers have told me how the current legislation has made them feel they must hide their sexual orientation from their colleagues. They have told me that day in and day out, they go to school and pretend to be someone else. On Monday mornings, while other colleagues talk about how they spent their weekend and about their families, they just sit there quietly without engaging in the conversation. They even go to great lengths not to be seen socialising in their own time with their long-term partners in the town in which they work. It really angers me that people who are great at their jobs and respected by the students and parents are being made to feel so unhappy at work. They should be judged on the same basis as everyone else, namely, their effectiveness in the classroom and not on the basis of a prejudiced view of their sexual orientation. Given that more than 95% of schools are under Christian denominational patronage, it is not as though they can avoid this threat by seeking employment elsewhere. Freedom of religion is an important value that I respect fully. However, it should not be used to permit discrimination that would unacceptable and illegal in any other employment, especially by State-funded institutions.

The current position also has a profoundly negative impact on LGBT young people by robbing them of positive role models at a difficult time in their own lives. While matters have improved considerably over recent years, many gay teenagers still experience a deep sense of unhappiness, isolation and depression as they struggle to come to terms with their own sexual orientation. Moreover, despite the incredible work being done by BeLonGTo and other groups, LGBT young people are still four times more likely to commit suicide than their peers. Much valuable work is being done at present to tackle homophobic bullying and I welcome in particular the importance the Minister for Education and Skills, Deputy Ruairí Quinn, has attached to this issue in the past two years. However, what message does it send to LGBT young people and their friends that as a society, we still condone legalised discrimination against teachers solely on the grounds that they are gay?

Consequently, I greatly welcome the Bill before Members, as it presents an opportunity for them to unite on a cross-party basis and end this discrimination for once and for all. However, I have a number of concerns about the current wording. I appreciate it has been drafted to strike a careful balance between the competing constitutional values of freedom of religion, on the one hand, and equality and the right to earn a livelihood, on the other. I also understand striking that balance is not easy because when drafting Fianna Fáil's Bill last year, we were obliged to do a lot of work to ensure it would be constitutionally sound.

We can understand, for example, the motivation behind exempting fully private institutions. It is not within our power to say that there should be female priests in the Catholic Church and therefore I understand the motivation behind that part of the legislation. However, I am worried about whether the protection for staff of publicly funded institutions in the current draft is strong enough.

This time last year I published a Fianna Fáil Bill to amend section 37 of the Employment Equality Act. The Bill unequivocally stated that nothing in section 37 could be relied on by an institution to justify or permit discrimination or to allow any action to be taken against any employee or prospective employee on the basis of that employee or potential employee's civil status or sexual orientation. The effect of the wording was that schools and hospitals would still be entitled to insist that staff members demonstrate respect towards their ethos in the workplace and not actively seek to undermine it but they would not be able to discriminate against conscientious employees just because they do not approve, for example, of their sexual orientation. The protection afforded by the wording was clear and unconditional.

In contrast, the wording before us today still permits discrimination in some circumstances. The Bill states that taking action against an employee should be deemed discrimination unless “by reason of the ... employment concerned or the context in which it is carried out, the action taken is objectively justified by legitimate aim and the means of achieving the aim are appropriate and necessary”. I appreciate that the onus is on the employer to show that he or she can satisfy this provision but I am concerned about the fact that it is included. I accept that staff should be required to respect and not actively seek to undermine the ethos of the employer. However, I do not accept that there are any circumstances in which an employer should be able to take action against employees solely on the grounds of their sexual orientation. The Bill provides that there are such circumstances and I seek clarity on what they are and what prompted Members to include the provision in drafting the Bill.

The acid test for any proposed new legislation is simple: whether a teacher reading the new provisions is able to take comfort from them and decide he or she is safe. I am genuinely concerned that the wording before us does not give the unequivocal guarantee to which Senator Mary Moran referred. We support the legislation on the basis that it is a step forward. We are only on Second Stage. I look forward to working with Members on all sides on Committee Stage to strengthen the wording and to ensure it gives people the protection they need and deserve.

I wish to ask one question before I conclude. When we discussed the legislation last year, the Minister for Justice and Equality, Deputy Alan Shatter, made progress conditional on the new human rights body carrying out a public consultation process. I tabled an Adjournment debate two weeks ago to ask if that was still the position because the body has still not been established and I was told it is still the position and that the body would shortly be established. Is the progress of the Bill to the next Stage and the completion of its passage through this House conditional on that process? There has been a considerable delay in merging the authorities. We all would like to work together to enact the legislation as soon as possible and not be delayed by a consultation process. I seek clarity on the matter because it has not been mentioned in the debate.

Senator Jim D'Arcy

I welcome the Minister of State, Deputy Kathleen Lynch. I thank Senator Ivana Bacik for introducing the Bill, which we support. It is the outworking of the Bill that Senator Averil Power tabled before Christmas. The Minister said something would emerge from it and Senator Ivana Bacik has now tabled the Bill before the House.

I wish to outline a few case studies. A person could not become a member of the Franciscan order without being ordained. That is clear. No discrimination is involved. However, a person applying for an office job with the Franciscan order could be discriminated against if he or she were refused the job on the basis of his or her sexuality or personal circumstances. That is the category of religious institutions.

Then we come to the sphere of education. I spent a lot of time pondering the issue in terms of section 37(1). Senator Averil Power has given me the answer I sought. She referred to a situation where a person must respect and must not actively undermine the ethos of an institution. When I started teaching, I had a friend who became a Buddhist. He taught Buddhism in the school during religion class. I am afraid he lost his job. I do not think he should have been doing that. I can see very few circumstances in which a person’s marital status or sexuality would come into play in terms of medical issues. I would not dwell too much on such issues in the case of someone operating on me. It would not affect me that much at the time.

I taught as a single person for many years and I also taught as a married person for many years. In addition, I taught as a separated person for a few years. However, I was the same teacher. It is time we moved on. I remember the chairperson of a board of management of a new school saying he had got his first five teachers and that they were all male, married and had children. He thought that was what was required for the school to protect its ethos. I do not know the reason. We must move away from such an approach. We must legislate for it. The Bill provides for religious institutions. Everyone agrees that religious institutions cannot be discriminated against because, as Karl Marx said, when the oppressed are freeing themselves, they must free the oppressor as well. The balance in the Bill that is being discussed across the floor is something that can be teased out as we move on. The main issue is that the Bill is before the House.

I hope that whatever the Attorney General needs to do with the Bill is done in a positive context to enhance the legislation. The programme for Government commits that people of non-faith or minority religious backgrounds and publicly identified lesbian, gay, bisexual and transgender people should not be deterred from training and taking up employment in the State. The Minister for Justice and Equality, Deputy Alan Shatter, said unequivocally that he regarded it as wrong that people whose wages are paid by the taxpayer and who are employed to provide essential public services should feel intimidated or feel the need to live their lives in secret. That is a terrible situation. Senator Bacik Ivana also referred to fear. It is a word that struck home with me. I do not want anyone to live in fear, for example, that his or her sexual orientation or family status should become known locally and lead to victimisation by an employer. As a pluralist, constitutional democracy we must commit to both equality of treatment and tolerance. On a daily basis we hear of people suffering from stress, mental health illness and tragic death by suicide.

It would be naive to assume that some persons who suffer because of their religious beliefs or are identified as lesbian, gay, bisexual or transgender persons are not affected when victimised and targeted for treatment that is different from that afforded to the rest of the population. In recent years, equality on the grounds of sexual orientation and gender identity has become a priority for many trade unions. I am glad the unions, with others, took on this challenge. I hope it no longer amounts to a challenge and has instead become an endeavour that will reach full success. We are a young nation going through many changes and this legislation is an important instrument. However, we must also challenge our own actions and attitudes towards persons who have different beliefs or a different sexual orientation.

Acting Chairman (Senator Susan O'Keeffe)

I understand white smoke has emerged from the Vatican.

Senator David Norris

I congratulate Senator Averil Power on her pioneering role in this area and, most particularly, Senators Ivana Bacik and Mary Moran on bringing this legislation in such a clear and articulate form before the House. I also commend colleagues who have spoken and I am sure we will hear further excellent speeches on the Bill. It shows the significance and importance of this House that we can deal with issues such as this in a calm and rational manner on a cross-party basis. This feature of Seanad Éireann became clear to me when, at the beginning of the AIDS pandemic, the House held a discussion on what was then a troubled subject that the Dáil was afraid to touch. It was also in this House that moves were first made towards the enactment of civil partnership legislation.

There are times when I feel a little like a coelacanth, that wonderful fish related to the diplodocus and other ancient creatures, which everybody believed was extinct and only to be found in fossils before it surfaced. I have lived through so much and made the transition from being a criminal for most of my life to being a perfectly ordinary, accepted and banal member of the community, which is what I always wanted to be.

I remember very well the Eileen Flynn case, which was extraordinarily shocking for a number of reasons. Foremost of these was the failure of those involved to ask the appropriate questions, for example, whether Ms Flynn was a good mother and teacher. They were obsessed instead by the fact that she had a child outside marriage. It is notable that the case took place in the diocese of Ferns and we all have a good idea about what was the ethos of that diocese. I found this failure astonishing but equally astonishing to me at the time was the response I received when I mentioned the case to some friends who were part of the legal establishment. According to them, while it was a pity about Ms Flynn, she was a provo. I have no idea whether that statement was a libel or true but I could not care less what her political sympathies were because they had nothing to do with her fitness to teach, unless she was teaching some kind of extraordinary violence, which I do not believe for one moment was the case. Eileen Flynn was a good mother and teacher and her case has echoes for me because the day after I acknowledged my sexuality publicly for the first time, which was in 1970, concerned colleagues told me I could lose my job. As this was in Trinity College Dublin, one can imagine what it must have been like in those days for a teacher in a secondary or primary school.

This Bill is a remarkable and wonderful development and I am pleased it will pass without the House dividing on it, which is a further splendid example of co-operation in the Seanad. I remember when the original legislation was introduced. I was naive to the extent that I could not believe that sections were being introduced providing for exemptions from the legislation's provisions. I speak as an imperfect but practising Christian. It seems extraordinary that the Christian churches would want to be exempt from equality and a requirement to treat people as individuals with dignity, which is at the very centre of the gospels. The Minister who introduced the Bill, Mr. Mervyn Taylor, was an extremely decent man, although he and I had different opinions on the situation in the Middle East. He explained to us that providing for exemptions was the only way the Government could possibly get equality legislation through the House. The former Senator Joe O'Toole and I tabled amendments and fought the exemptions on the principle that there should be equality. We argued that the proposal was a serious derogation from this principle which would have an intimidating and awful effect. As a member of the Irish Federation of University Teachers, we fought on behalf of two lecturers in Maynooth but the college got away with its actions on the basis that it was the pontifical university.

One must ask what ethos would need this kind of absurd protection and for what reason. I draw Senators' attention to a very good article published on 4 August 2007 by a legal scholar, Dr. Mark Coen of Trinity College Dublin, in which he isolated some of the principles involved in this issue. While he also addressed the gay issue, he noted that the law places employees, including heterosexual cohabitees, in an invidious position where they are employed by a religious organisation. While this may appear to be a theoretical matter, Senators should note a case in Scotland where a gardener in a public school attended a gay rights march, was dismissed, took a case and the court found against him on the basis that the group involved had every right to dismiss him. This is utterly wrong.

Senator Ivana Bacik described the Bill as slightly conservative. I believe its proposers have got the mix right, although I remain to be persuaded. If they wish to be more radical, there is nobody who likes to be radical more than me. As a former teacher, it is my view that if one wants to teach something and communicate it properly, one should believe it. My religion would have been ruined if I had been taught religion by an atheist because I would have smelled the person's lack of belief from yards off. While I would not have condemned the person, I would have known he or she was not sincere. I do not believe atheists, who are decent people by and large, should be forced to be untrue to themselves. For this reason, they should be relieved from teaching religion. For God's sake, let us have people who believe teaching religion. The ideal position would be if families were to do the teaching. However, while parents insist on ethos here, there and everywhere else, they do not want to be bothered teaching their children, leading by example and showing them how wonderful and beautiful religion is. I would not have been bothered if somebody had taught Buddhism, one of the great religions. I do not see anything in the Bill to suggest aggressive secularism or any of the other things for which we are usually attacked.

I hate the idea of a religious ethos, whether Protestant or Catholic. On the other hand, I remember arguing for what one could describe as the religious ethos in a hospital environment, namely, the Protestant ethos, simply because it appeared that it could encompass the Catholic ethos while giving freedom of choice and providing for a particular relationship between patient and doctor that was inviolable. For that reason, I preferred the Protestant ethos in the hospital setting to the imposition of a religious point of view on matters such as the availability of certain operations and procedures. I have no problem if that position appears sectarian.

Homophobic bullying is a serious problem. I salute the organisation BeLonGTo. It was wonderful that it got Síle de Valera, with her iconic surname, to launch its first posters on bullying. It is worrying, however, that 80% of bullying in schools has a homophobic element and 80% of it is never addressed because people are still afraid. For this reason, I salute those members of the Irish National Teachers Organisation - I remember speaking at their conference - who have been so brave and wonderful and who, in their vulnerability, stood up and acknowledged their sexuality.

Acting Chairman (Senator Susan O'Keeffe)

I ask the Senator to conclude, please.

Senator David Norris

I will do so. Thank you and goodbye.

Minister of State at the Department of Health (Deputy Kathleen Lynch)

As I have said before and will say again, the next time I am called to speak after Senator David Norris, I will leave the Chamber. In 1996, when the original employment equality legislation was introduced, I strongly objected to it, which left me in a lonely place.

The following Sunday, when entering my local church to go to mass, I was handed a leaflet, clearly by somebody who did not know me. The leaflet, which was quite vicious, was about me and what it described as my attack on the Catholic Church and Catholic schools. Therefore, we should not underestimate the types of objections we will encounter. We will encounter some. I know for a fact that there is one person in the Visitors Gallery behind Senator David Norris who actually remembers what I have described.

The Government welcomes the attention that Senator Ivana Bacik has brought to the position of LGBT people in the teaching profession who feel compelled to hide their real identify for fear of victimisation. As Senators will know, the Minister for Justice and Equality and the Minister for Education and Skills, Deputies Alan Shatter and Ruairí Quinn, would have liked to have been present for the debate, but they are unable to be so as they are abroad on official business. When he was here last May speaking on this topic, the Minister for Justice and Equality stated unequivocally that he regards it as a wrong that people whose wages are paid by the taxpayer and who are employed to provide essential public services should feel intimidated or feel a need to live their lives in secret for fear that their sexual orientation or family status, for example, should become known locally and lead to victimisation by an employer. That is exactly how I see it and how my Labour Party colleagues in this House see it also.

It is important to emphasise that both parties in government fully support this initiative. One will recall the Government has undertaken in its programme for Government to ensure that people of non-faith or minority religious backgrounds and publically identified LGBT people should not be deterred from training or taking up employment as teachers in the State. Recognition must be given to the earlier initiative by Senator Averil Power. Her bravery in bringing forward the initiative must be noted. My experience tells me one does need to be brave at certain times in one's political career. Senator Averil Power's Private Members' Bill was instrumental in initiating dialogue in the House towards progressing reform in this important area of human rights. The extensive cross-party support for ensuring the equal rights of citizens, irrespective of their sexual orientation, and clarifying the law in this area, was clearly illustrated by the debate on the Senator's Bill last May. I recognise the fact that Sinn Féin has produced legislation on this matter. That support has not abated is evident from the recent Adjournment debate on 28 February on this very topic, during which Minister of State, Deputy Joe Costello, replied on behalf of the Minister, Deputy Alan Shatter. I express my thanks and that of the Government to Senator Ivana Bacik and the other Labour Party Senators for their initiative in developing this Bill and introducing it to the House.

I restate the commitment of the Minister for Justice and Equality, with the Minister for Education and Skills, to strengthening the statutory protection for equality in this area. Within the Department of Justice and Equality, both the Minister and I have previously expressed concern about the potential impact of section 37 of the employment equality legislation on LGBT persons. This section is designed to allow schools and other institutions to maintain their religious ethos. As Senator David Norris rightly stated, there should be no attack on the ethos in the case of a good teacher. A good teacher is a good teacher, irrespective of his or her sexual orientation or faith.

The legislation was examined by the Supreme Court in 1996 when the Employment Equality Bill 1996 was referred to it under Article 26 of the Constitution. The Supreme Court found that it is a reasonable balancing in legislation of the different rights involved, including, chiefly, the right to earn a living and the rights to freedom of religion and association. However, as we have stated on a number of occasions, we are concerned that this is not the way it has worked out in reality. There is evidence that the balance, in practice, is not a fair one and that this provision can operate in a way that is unfair to LGBT persons.

As much as the case of Eileen Flynn, who, unfortunately, is no longer with us, sticks in our minds, it was not the only one. It was not just as a matter of Ms Flynn being pregnant and unmarried. We need to bear in mind that there were a lot of people in that category.

The two Ministers involved, Deputies Alan Shatter and Ruairí Quinn, are committed to finding a different solution which resolves this difficulty while still providing for an appropriate balance of competing fundamental rights that is constitutionally sound. We are proposing not only to welcome the spirit of this Bill, but also to take it on as a Government Bill and subject it to the rigorous scrutiny by the State's legal advisers necessary to ensure beyond all reasonable doubt that the text will pass constitutional muster. At the heart of the issues addressed in the Bill are competing constitutional rights and questions about the constitutional obligation of the State to protect the personal rights of all citizens, while also respecting freedom of religion. We are principally bearing in mind teachers and medical professionals employed in schools and hospitals which are funded largely by the State. These are people in positions of trust, charged with caring for children and the sick, and their callings are deserving of respect in society. I believe the Bill is a good one, but I am not a constitutional lawyer and have never claimed to be.

The test the Oireachtas faces when it legislates in this area is whether it has preserved a proper balance between the rights of religious denominations to manage their own affairs and maintain institutions for religious and charitable purposes and the rights of other citizens to equality before the law and to earn their living.

We must move very carefully because failed reform could do real damage to people's lives and set us back. In response to Senator Averil Power's query, the Minister for Justice and Equality indicated last May that he wants the new Irish human rights and equality commission to examine this issue and mount a public consultation process. My experience tells me the value of a public consultation process on this issue cannot be overestimated. The members of the new commission and equality authority will be appointed very shortly.

It is important to engage the public and develop a more complete awareness of the matters at stake, the impact on individuals, their families and communities and in building wider support for this reform. The Irish are inherently decent. There is momentum behind this reform initiative but we need to ensure it involves the wider public and that there is awareness of some of the detail of what we want to do. As Senators know, the Minister set out in some detail in this House last May how reform might be undertaken in this area. He also gave a commitment to have an extensive consultative process and formal assessment of the options. Equality legislation expressly provides for reviews of this nature. It is appropriate that the review be carried out under the aegis of the new Irish human rights and equality commission. Unfortunately, establishing the commission is a complex task which is taking longer than originally hoped. As Senators will be aware, an independent selection process in regard to the membership of the new commission is under way. The Minister hopes to be in a position to make a further announcement in relation to the appointment of the new commission soon. He intends as a priority, on the appointment of members to the two existing bodies, to invite the appointed members to carry out a consultation and report on their views and recommendations to him and the Minister for Education and Skills – the two Ministers centrally concerned – and the Oireachtas. Such a process can be carried out within a short number of months, acknowledging the need for rapid movement on this issue. We are all very conscious of delays.

In parallel, the Bill will be scrutinised carefully by the Attorney General's office. We must ensure that our legislation will withstand any challenge. I stress our commitment – once this necessary consultation process is completed – to take forward this Bill, with any amendments that might be needed, with Government support to enactment. The Bill addresses very significant problems, in particular for LGBT teachers but also for medical professionals. Failed reform is in no one's interest and we need to be confident that we have got it right and that the wider community knows that we have got it right. I thank everyone for their contributions.

I am a great believer in timing. Timing is everything in life and obviously mine was very much off when I tried to do as outlined 17 years ago.

Senator Marc MacSharry

I welcome the Minister of State to the House, as always. I also thank her for welcoming the suicide policy document my party published last week and I hope we will have an opportunity to go through it with her in the coming weeks.

I welcome this legislation and while not wanting to take an adversarial position on the Order of Business this morning, I said that it was a shame that we could not have moved forward a year ago when Senator Averil Power proposed her own legislation on this issue. However, I appreciate that it is now happening and we have a Bill to debate. Senator Ivana Bacik said this morning that Senator Averil Power's proposed legislation did not cover all nine areas of discrimination but that could have been dealt with quite easily by way of amendments on Second Stage. Just to reiterate what I said this morning, I regret that the set piece for Private Member's Bills from the Opposition is for the Government to say it has a better plan or a bill of its own in the pipeline which it will introduce later and celebrate as a success. Having said that, I thank Senator Ivana Bacik for acknowledging the work of Senator Averil Power in this regard. It would be good for democracy, albeit at the loss of positive optics for the Government, if occasionally in this House we could signal that good ideas can be celebrated and implemented by all sides, particularly when it is possible to improve such ideas on Committee Stage. We have had a lot of examples of this in recent years and the female genital mutilation legislation put forward by Senator Ivana Bacik in Private Member's time some years ago could have been implemented much faster had it been embraced by the then Government.

All people are equal but some are more equal than others. The heroes of society are many but with regard to this issue, one such hero is Senator David Norris, whose courageous move in the 1970s, culminating in his notable victory at the European Court of Human Rights in 1988, was the start of the process of stamping out discrimination in our society. That was welcome and this legislation is another cog in that wheel. However, the wheel is very large and there will always be discrimination and the challenge of stamping it out. If a person is employed as a teacher, his or her favourite football team has as much relevance as the fact that he or she is gay, lesbian, bisexual, transsexual, a member of Fianna Fáil or Fine Gael or whatever else. Having said that, it would seem at times in these Houses that being a member of Fianna Fáil is grounds for discrimination. This Bill is very positive in that regard and to be welcomed.

As we move forward, there are other issues with which we must grapple, including the question of the enforcement of this legislation. That is key. I have no doubt that following the enactment of this legislation, following further refinement on Second Stage, the question of enforcement will prove difficult because people will decide, in a confidential and private way, that they would prefer to employ a person of type X or Y. That will happen on an ongoing basis. We need only look at the instances of discrimination against pregnant women and mothers, in particular, over the years to see how problematic enforcement can be. Often it is the detection of evidence of discrimination that is the problem, rather than the lack of anti-discrimination legislation. Following the enactment of this legislation, enforcement and providing protection for people will still be a challenge. The ultimate test will be whether we can come up with better detection methods and quicker enforcement mechanisms, rather than simply passing this legislation. It is only after the Bill is passed that the game really begins in terms of improving our society.

Some have argued that various churches suppressed good moves like this in the past, which may well be true, but as someone who is Christian and a Catholic, I am open-armed about the need for absolute equality and a policy of live and let live. People must be provided with the potential to be true to their traditions while allowing for full equality. Senator Susan O'Keeffe has pointed out that we have white smoke in Rome, which I celebrate. As a Catholic person, I hope that the new Pope will recognise that the Catholic message is still one of the best in the world but needs to be brought out of the 1700s and into the 21st century. That would serve practising Catholics like myself well and would be of benefit to the church as a whole. It is unfounded and unnecessary fear within the establishment of various churches and other organisations that has led to discrimination and abuse and we must learn from this.

Once again, I commend my colleague, Senator Averil Power, for initiating this debate, as the Minister of State has acknowledged. I also commend Senator Ivana Bacik who, as a gifted legislator, has shown again today that we can make real progress in this House. I seize the opportunity to impress on Senators from the Government parties the importance of them pointing out to their more senior colleagues the usefulness of this House and the fact that they should not be threatening to abolish it purely for electoral gain. Today's debate and this legislation is a good example of the merits of retaining this House.

Senator Katherine Zappone

I welcome the Minister of State, who is a great advocate for equality, to the House. I also welcome other colleagues and friends in the Visitors Gallery, including several Deputies from the Labour Party. I thank Senator Ivana Bacik and her party colleagues for their work on this Bill. Their collective effort, with the support of other Senators, especially Senator Averil Power, who has shown leadership, empathy and perseverance, sends a strong message that we cannot rest easy until section 37(1) of the Employment Equality Act is amended in order that teachers and health personnel do not live in fear for being who they are and because of the lack of adequate legal protection with regard to their private lives.

I welcome this legislation in that context but the question we must ask, as we analyse this Bill, is whether it offers them adequate protection. Are we absolutely convinced that, with this proposed legislation, the shadows hanging over lesbian, gay, bisexual and transgender employees, divorcees or single parents will dissipate? Can the Bill melt the chill factor for Irish employees within religious-run institutions that their private lives and the expression of those lives both within and outside the workplace will no longer put their job, career path or financial security at risk? Can the Minister of State and her Government colleagues assure such people of this? As it stands, I do not think they can. I have read and reread the Bill and note the drafter's attempts to put new restrictions upon the religious institutions' right to protect their ethos. I have also sought legal opinion but my conclusion is that these new restrictions are still not enough.

In order to offer an absolute assurance to Irish employees working within religious institutions that deliver public services, I proposed that it would be more effective to delete the existing subsection 37(1)(b). Why is this the case? The institutions' right to protect its religious ethos is adequately protected already in Irish law. Religious ethos is protected by sections 16, 25, 37(1) and 37(2) of the Employment Equality Act and by a number of other laws. Section 37(1)(a) allows an institution, under certain conditions, to give preference to members of its own faith for a job, promotion or particular duties. Sections 37(2) and 25 permit all employers to treat people differently where there is a genuine and necessary occupational requirement. These sections, coupled with the duties arising from the person's individual employment contract, are an adequate safeguard to the religious ethos of the institution. Why then would the State continue to insist that we need one more safeguard in the existing section 37(1)(b)? Is it genuinely required to protect the constitutional provisions on freedom of religion? Furthermore, if we asked the religious institutions today if they need this additional section to protect their ethos, would they insist that they do or might they be willing to allow it to slip quietly into the sunset because things have changed so much since the 1990s? Has the State asked the religious institutions this question?

I also believe the offensive subsection should be deleted because although the Supreme Court found it to be compatible with the Constitution, it is by no means clear that the Constitution, as interpreted by the courts, requires an exception of this nature.

Does the Constitution require the additional protections of religious ethos found in section 37(1)(b)? The Constitution, as interpreted in 1996, might have allowed for an exception like this but by no means would the Constitution require it, and the court did not say that it was required.

With regard to the Bill, the drafters offer changes in how a religious institution protects its religious ethos, by providing additional protections to those who might be discriminated against in light of their identity. In section 37(1)(b) religious institutions can give preferential treatment to a prospective or actual employee on the religion ground where it is reasonable to do so in order to maintain the religious ethos of the institution. Subparagraph (i) states that in the use of preferential treatment, the institution cannot discriminate against an employee on "any of the other discriminatory grounds", such as sexual orientation, family status and so forth. It says that the religion or belief of the employee must be a genuine occupational requirement. This amendment seeks to clarify that preferential treatment cannot be used to smuggle in discrimination on another ground. This change in the law is a good one.

It is subparagraph (ii) that is problematic. Senator Averil Power referred to this also. This states that religious bodies are allowed to "take action" which is reasonably necessary to prevent an employee or prospective employee from undermining the organisation's ethos. This is too broad and employees would still have something to fear. While the action taken by the religious body against the employee must be proportionate, this amendment means that a lesbian pregnant through assisted reproductive technology or an unmarried mother living with her children could still be discriminated against. While it may now be harder to invoke a sanction against an employee on the basis of her or his identity, it is still possible. My real concern is that the protection of religious ethos can extend beyond the ground of religion into an employee's private life and is not confined to what she or he says or does in the workplace. If I were teaching in a Catholic school, for example, and I always wore my wedding ring, and if one day one of my students asked me what the ring was for and I answered that it is my wedding ring to another woman, does this proposed amendment protect me from being discriminated against? Could the school authorities still legitimately take action against me? Married lesbians go against the Catholic religious ethos. Does my presence inside or outside the school as a married lesbian undermine the ethos? Does the test of proportionality protect me sufficiently, or is it still a little like the policy of "don't ask; don't tell"?

The addition of the proportionality test does not offer enough protection in practice. Somebody's private life is still relevant to whether he or she is a good employee, but, as others have indicated, perhaps these are matters we can discuss at another point.

Senator Sean D. Barrett

I welcome the Bill and thank Senators Ivana Bacik, Mary Moran and Ivana Power for blazing the trail on this, as well as Deputies Aodhán Ó Ríordáin, John Lyons, Ciara Conway and Dominic Hannigan who are promoting it in the other House.

We are making progress in dismantling the apparatus of discrimination, not least in the North where the society seemed to be built on discrimination. The progress that has been made there is a model for all of us. A society without prejudice and discrimination is much more interesting, creative and developmental than one in which there are the barriers which we have tried to break down. One thinks of the County Mayo librarian case and the Fethard-on-Sea boycotts, and the New Ross school case was described earlier. The contrast with how we are progressing now could be seen last Sunday when I heard Senator Ivana Bacik preach at a Church of Ireland service on the virtues of atheism, and she was extremely well received. In fact, the dean pointed out how much the congregation and our visiting preacher had in common. That was wonderful. We can learn from each other and from the values about which she spoke. Senator Katherine Zappone will preach from the same pulpit next week in reparation for the damage caused by homophobia. That is a church community welcoming views of much greater diversity than were heard traditionally and getting away from the immense harm that was caused to people at all levels of society.

Respect for diversity and tolerance is also an ethos we would like to promote in this country and I believe we are making progress. This morning Deputy Tom Hayes's committee on communications and transport was discussing cyberbullying and the committee's report will be produced soon. One can take it that the committee will not be found lacking in dealing with the problem of homophobic bullying in society and particularly in schools.

This is legislation from which a new Ireland will emerge. Of course, one must pay tribute to our colleague, Senator David Norris, for the immense work he did over so many decades. Society is enriched by embracing the gay, lesbian and transgender communities. We can only try to see if there was any rationale for discrimination against unmarried mothers. I do not know whom they were supposed to be threatening, but we did develop a very strange type of society, as the Taoiseach has said several times recently in the Dáil, with very strange prejudices underpinning all sorts of conduct, which we now deplore.

I wish the Bill well. I will attentively study the amendments which Senator Katherin Zappone has mentioned, should she feel the need to table them to strengthen the Bill. However, this is a good day for the Seanad and for the liberalisation of Irish society in encompassing the richness of diversity. It will, we hope, make this country a better place in the future and will continue its recovery. A much more humane society in this country, both North and South, has much to commend it.

Senator Colm Burke

I welcome the Minister and the Bill. I thank Senators Ivana Bacik and Averil Power for the work they have done in this area. Some people get frustrated at times with how long it takes to get legislation passed. I remember starting the campaign to abolish the status of illegitimacy back in 1980, which is before many of the people here this evening were born and even the Minister of State, Deputy Kathleen Lynch, would not remember that far back. I recall organising and being involved in that campaign, including collecting signatures on the street. In that case the child of parents who were not married did not have any rights to the father's estate. We believed it would take us ten years to change the law in that area, but we got it through in seven years. As it still took seven years, the fact that Senators Averil Power and Ivana Bacik have got to this Stage and have put the legislation on the books for the Government to deal with in a period of 18 months is an achievement. I hope it will not be long before this legislation is enacted.

It is a welcome Bill. It is about balance. My colleague referred to speech by the Minister for Justice and Equality, Deputy Alan Shatter, on the last occasion. It is interesting to refer back to that speech and look at a quote from the court on that matter. The Minister referred to the McGrath and O Ruairc case in 1979 and quoted Judge Henchy who said:

Far from eschewing the internal disabilities and discriminations which flow from the tenets of a particular religion, the State must on occasion recognise and buttress them. For such disabilities and discrimination do not derive from the State; it cannot be said that it is the State that imposed or made them; they are part of the texture and essence of the particular religion; so the State, in order to comply with the spirit and purpose inherent in this constitutional guarantee, may justifiably lend its weight to what may be thought to be disabilities and discriminations deriving from within a particular religion.

That was the thinking in the courts in 1979. We have moved a long way from it, but we must also bring people with us in bringing about change.

This legislation is about bringing people with us. I agree with the Minister of State and know people involved in this process may be disappointed that the Minister for Justice and Equality and the Minister for Education and Skills are anxious that the new authority, the Irish human rights and equality commission, should be involved in moving this forward. Public consultation is important in bringing people along and having them accept the necessary change. The changes set out in the Bill are necessary and important but it is also important for people to come with us in making that change, accepting that we have moved on as a society and that this is for the betterment of everybody.

The State has a compelling human rights interest in eradicating discrimination based on social prejudice, which is what this Bill does. We must move forward and give the necessary guarantees which are not yet in place. I thank Senator Ivana Bacik for bringing forward this legislation and the people who have worked with her on the Bill. I thank the Minister of State for her contribution today. She has gone back 17 years in raising these issues.

It is time for change and the Bill is setting out the required changes, while at the same time providing balance, which is also important. I support the Bill and hope it will not be too long before we go to the next Stage and deliver it to the Dáil and then to the President for signature. All the contributors have made very constructive comments and I am fully supportive of this legislation.

Senator Trevor Ó Clochartaigh

Cuirim céad fáilte roimh an Aire Stáit agus ba mhaith liom fáilte an-mhór a chur roimh an mBille iontach tábhachtach seo agus comhghairdeas a dhéanamh le duine ar bith a raibh baint nó pairt acu, ní hamháin leis an mBille ach leis an bhfeachtas a chuaigh roimhe, nó a chuir leis an díospóireacht seo ar bhealach ar bith.

In a previous life I was a television producer and director and I worked on the soap "Ros na Rún" in the opening days. One of the best publicity experiences we had came when we introduced to the show a gay couple called Tom and Jack, who had the first gay kiss on an Irish soap. A local principal told all the children at the school to stop watching that smut on TG4, which was Teilifís na Gaeilge at the time, and our ratings went through the roof. I am very proud of the time we spent on "Ros na Rún" as we did much work on having the gay couple of Tom and Jack as a normal couple within a soap scenario, which did not always have to go on about gay issues. They were a normal couple and their inclusion was a significant step forward for Irish television. I am very proud of my involvement in that series.

This Bill is very important and on behalf of the Sinn Féin Seanad team, I commend Senators Ivana Bacik and Mary Moran for bringing it forward, as well as all the Deputies in the Labour Party who were involved in its development. I recognise the role of Senator Averil Power in pioneering this area. My party colleague, Deputy Jonathan O'Brien, brought forward a similar Bill in the Dáil. I also recognise the work done by individuals and organisations for many years in trying to get this type of Bill brought forward. I am happy to say the Bill has Sinn Féin's full and enthusiastic support.

It is a testament to how much Irish society has changed that Senators are queuing up to outdo each other in publishing anti-discrimination Bills. That is good and long may it be that all political parties, whether in government or in opposition, see it as a duty to change the law to ensure that no person is denied any aspect of rights because of race, class, colour, creed, gender or sexual orientation. Sinn Féin is a party with a profound belief in the importance of equality, not only in opportunity but in condition. I echo the comments of Senator Sean D. Barrett about how much has been done in the Six Counties with regard to equality, with this type of legislation being introduced there for many years. The right to work and secure employment free from discrimination is fundamental to equality of condition because without work one is left without the financial means to vindicate so many other rights.

Speaking specifically to Senator Ivana Bacik's Bill, I echo the Labour Party leader's comments on the need to remove those aspects of section 37 of the Employment Act 1988 that facilitate discrimination, particularly against lesbian, gay, bisexual and transgendered, LGBT, people in working in religious-run institutions such as schools and hospitals. The Senator is right that the existing legislation allows for discrimination against members of the LGBT community and against lone parents or others on the spurious grounds that the employers want to protect the religious ethos of the schools. The days for this kind of discrimination are over and this Bill must become law.

I am also very pleased to see the Minister of the State in the Chamber today and hope this is an indication that the passing of the Bill before us will be speedily followed by its passage through the Dail and its passing into law.

The Bill introduced by Deputy Jonathan O'Brien three weeks ago not only sets out to end the possibility of discrimination by amending section 37 of the Employment Equality Act and it updates and extends the general definition of discrimination to include gender identity, as defined under the Yogyakarta principles that have been applied under international human rights law to address human rights abuses of people who are lesbian, gay, bisexual, or transgender. In considering how best to amend the Employment Equality Act, the definition relating to LGBT contained in the Bill introduced by Sinn Féin should be given serious consideration. It is incumbent on the Government to address section 37, a clause that has reinforced fears of discrimination against LGBT workers in religious-run institutions, particularly those employed in schools and hospitals. Its retention on the Statute Book makes it even more difficult for employees to be open about their sexuality and this is reflected in research published jointly by the Equality Authority and the Equality Commission for Northern Ireland in 2007, which found the fear associated with section 37(1) has a significant negative impact on lesbian, gay and bisexual teachers.

The presence of this provision effectively forces teachers either to avoid seeking employment in given sectors or to take up employment in conditions where they are compelled to conceal their sexuality. Removing this provision will help to create a culture in schools in which homophobic bullying of teachers and students is no longer tolerated and if we are serious about combating homophobic bullying then we need address section 37 and ensure no loophole remains in existing legislation that will allow discrimination in any shape or form.

The legislation is important but the culture we have in this country that has brought about the need for this legislation must also be tackled. There was a demonstration today outside the gates of Leinster House by members of the Travelling community because of the sense of discrimination they feel. I commend those outside for the demonstration. We have also noted on a number of occasions the need for us as a Legislature to consider the possibility of equality-proofing legislation, and we should return to that issue. That would mean every piece of legislation coming through these Houses could be equality-proofed.

It is timely for us to have this debate as the white smoke has risen above the Sistine Chapel. As a practising Catholic, I hope the new Pope will bring forward a sense of more inclusiveness and openness in many areas of practice in the Catholic Church. Many Members of these Houses purport to speak on behalf of Catholics in Ireland but in many cases they speak on behalf of a minority of Catholics in Ireland who have a relatively fundamentalist approach. They do not speak on behalf of me as a Catholic, and I hope the new Pope will bring that sense of openness and inclusiveness not just for the LGBT community but for people whose marriage has broken down irreparably, lone parents, etc. That would be a much more Christian way of dealing with matters, and if Jesus Christ was walking the land today, it would be his approach rather than that put forward by some of the fundamentalist stances we hear in these Houses from time to time.

Ba mhaith liom comhghairdeas a dhéanamh leis na Seanadóirí as ucht an Bhille seo a thabhairt chun cinn. Tá sé iontach tábhachtach. Tá súil agam go dtógfar ar bord cuid des na smaointe a bhí luaite ag mo chomhghleacaí an Teachta Jonathan O'Brien agus ba mhaith liom tréaslú leis na heagraíochtaí atá anseo, go háirithe ó thaobh an obair iontach atá siad ag déanamh ar feadh an ama ó thaobh na cúiseanna seo a thabhairt chun cinn. Ba mhaith liom ár dtacaíocht don mBille a léiriú.

Senator Susan O'Keeffe

I am proud to be present with my Labour Party colleagues to support this Bill. We often thank people as a tradition of the House but this is a day to say "Thank you" to many people. I thank the Minister for Education and Skills for his efforts and his support in this area and Neil Ward in his office for helping to draft the legislation. I also thank Senators Ivana Bacik and Mary Moran for leading the debate on our behalf and to my Labour Party colleagues in the other House for coming together to bring this Bill before us. I thank the Minister of State for her efforts 17 years ago and in the interim and her promise of white smoke whereby the Bill will not only be accepted in spirit but will become a Government Bill. I hope we can look forward to Committee Stage sooner rather than later. I would finally like to thank those in the Visitors Gallery, the groups they represent and the many people who have expressed concern about these difficulties for such a long time and who were voices by themselves, very often taking unpopular stands, for persevering and for being with us this evening.

When we legislate, we show we are leading because we are laying down a marker for the kind of society we want and I hope we can keep building and changing. We cannot, as a Legislature, stamp out discrimination but we can show that this is what we want and that we are here saying discrimination is not something we support anymore. The notion that workers, particularly teachers and those working in hospitals, who are different from their colleagues are not equal is clearly something we do not want in this society. We are leading today. To those who often say as they sit in bars or in taxis that nothing has changed in Ireland and the Government has not done anything in office, I have pointed out several times in the House in the past year that we are changing and we are recognising issues and moving on them. We are beginning to grow up and we are saying we will not accept discrimination anymore. At one time, female civil servants gave up their jobs when they married while other women were locked up for having children who were then taken from them because they were not married. We have experienced this discrimination but we have moved on and we are moving on again this evening.

I am delighted other Members have said provisions in the legislation should be debated on Committee Stage and the Bill needs to be strengthened in some regards. I share a number of the concerns eloquently raised by Senator Katherine Zappone but this is a good day because we are marking the start of that process. Others referred to the chilling effect but we are beginning to feel the warmth and to understand that, together, we can address that and take away the coldness that has been there. I thank Senator Averil Power for her work last year and I am delighted that she has contributed to the debate and will continue to do so because it is an issue she holds dear. In memory of Eileen Flynn and all the others who were never named, we are here to change and I look forward to further debate on this legislation on Committee Stage.

Senator Ivana Bacik

I thank all Senators for their kind works and the unanimous support expressed for this Bill. I also thank Senator Moran for seconding it so eloquently and my other Labour Party colleague, Senator Susan O'Keeffe, for her eloquent words. I thank Senator Sean D. Barrett for outing me as an atheist preacher. That was a one off event in the Trinity College Dublin chapel.

I would particularly like to thank the Minister of State for expressing Government acceptance for the Bill. I am delighted the Government will take this forward as a Government Bill, which is a great result for the Labour Party group in the Seanad and for the Seanad as an institution. It is appropriate that Deputy Kathleen Lynch is the Minister of State to express that given her strong record on this issue. It shows the value of the Seanad and the potential for all of us as legislators. I am proud that this is the third Bill I have had the privilege of introducing that has been adopted as a Government Bill by two Governments and I am glad that has happened. As the Minister of State reiterated, there is a need to maintain momentum on this issue. We do not want the Bill to disappear into a vacuum and we do not want unnecessary delays. It is a year since Senator Averil Power introduced her Bill and I pay tribute to her for keeping the issue alive. While I accept the need to take the advice of the Attorney General and to have some consultation, it is not unreasonable that we would move to Committee Stage before the summer recess. That would be a good way of moving on and it would not be unduly rushed.

There were critiques of aspects of the Bill despite the overall welcome, particularly from Senator Katherine Zappone. There is a constraint not only in domestic law but also under EU Framework Directive 78/2000. Article 4 of the directive places constraints on how we can move forward on this, particularly the reference to ensuring "national practice as existing as the date of adoption of the directive". However, we were perhaps over-cautious in the drafting of the Bill, particularly section 37(1), which refers to action taken to prevent undermining of the ethos. I am happy with the overall structure, as we have included all nine grounds, we have made the distinction for State funded institutions, which is fair and reasonable, and we have taken a balanced approach to the issue of favourable treatment on the grounds of religious ethos. However, in section 37(1)(b)(ii) it would be better to include a specific reference such that the action of the type referred to should not constitute discrimination on any of the other grounds. That might be a way of addressing the issues raised by Senator Katherin Zappone while staying within the terms of the directive and ensuring balance. I welcome a debate and the views of the Minister and the Attorney General on that issue.

The Bill can be improved, strengthened and made more robust. It is in keeping with the Labour Party's commitment in government to make progress on discrimination, particularly against LGBT people. The Minister for Education and Skills action plan on bullying was referred to by a number of Members. It is the first time the Department has funded a campaign to raise awareness of homophobic and transphobic bullying. The Minister for Social Protection is also working on the commitment in the programme for Government to legal recognition and extension of protection of transgender people, an issue raised by Senator Trevor Ó Clochartaigh and others. Next month, the Constitutional Convention, of which I am proud to be a member, will discuss the issue of marriage equality, which the Tánaiste has described as the civil rights issue of our generation. There are a number of other fronts, therefore, on which equality issues are being progressed.

This is an important part of that jigsaw. The Bill can be improved but it is key that it passes Second Stage to keep the momentum up and to ensure we can move forward swiftly to secure its passage. I again thank all those who contributed for their support. I also thank the following: the Minister for Education and Skills, whose support for the Bill has been immense; Neil Ward in his office, who input has been tremendous; the Deputies who worked with me on it, particularly Deputy Aodhán Ó Ríordáin who was present for most of the debate; and the Labour Party group who introduced the Bill in the House.

I thank those in the Visitors Gallery who stayed for the debate. It is important for us that people follow our proceedings. I acknowledge many people are watching online but it is particularly important to have people in the Chamber who have worked for so long to improve the protection of equality, the position of those in the LGBT community and to conduct a campaign against discrimination generally. There has been a great deal of discussion, on the evening white smoke has risen, of religious dominance, particularly in our school system and generally in the history of the State in the provision of social services. The legislation is one small way in which to tackle this undue dominance and to ensure better protection for the rights of individuals as opposed to religious institutions. For too long, the rights of these institutions have prevailed to the terrible detriment of many individuals, particularly women and children, over many generations in this country. It is time we tackled that and the Bill will tackle the issue in a small way. It is welcome that it has cross party support and that it will move forward as a Government Bill without delay. We will continue to press the Government on both sides of the House to ensure it becomes law quickly.

Seanad Éireann debate -
Wednesday, 13 Mar 2013