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LGBT rights in Northern Ireland | |
|---|---|
 Northern Ireland (dark green) within the United Kingdom (light green) | |
| Status | Always legal for women; decriminalised for men in 1982 Age of consent equalised in 2001 |
| Gender identity | Right to change legal gender since 2005 (UK-wide) |
| Military | LGBT people allowed to serve openly since 2000 (UK-wide) |
| Discrimination protections | Sexual orientation and gender reassignment protections, rarely enforced and with religious exemptions |
| Family rights | |
| Recognition of relationships | Civil partnerships since 2005 (UK-wide) Same-sex marriage since 2020 |
| Adoption | Full adoption rights since 2013 |
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Lesbian, gay, bisexual, and transgender (LGBT) people in Northern Ireland enjoy most of the same rights as non-LGBT people. However, the advancement of LGBT rights has traditionally been slower than the rest of the United Kingdom, with the region having lagged behind England, Scotland, and Wales. Northern Ireland was the last part of the United Kingdom where same-sex sexual activity was decriminalised, the last to implement a blood donation “monogamous no waiting period” policy system for men who have sex with men and, after intervention by the Parliament of the United Kingdom, the last to allow same-sex marriage.[1][nb 1] Compared to the neighbouring Republic of Ireland, all major LGBT rights milestones had been reached earlier in Northern Ireland, with the exception of same-sex marriage. Homosexuality was decriminalised in Northern Ireland a decade earlier and civil partnerships were introduced six years earlier.[3][4][5][6]
Most liberalisation of LGBT rights in Northern Ireland has been achieved under direct rule by the Government of the United Kingdom, British parliamentary legislation or court decisions rather than through laws passed by the Northern Ireland Assembly.[7] This is due to the veto power exercised by opponents of LGBT rights, such as the Democratic Unionist Party, under Northern Ireland's power-sharing system.[8][9][10] In 2017, ILGA rated Northern Ireland last place in the United Kingdom for LGBT people, with 74% equality of rights compared to 86% LGBT equality in the United Kingdom overall and 92% equality in Scotland,[3] but above the Republic of Ireland which was ranked 52% the same year.[11]
Same-sex sexual activity has been legal since 1982 and the age of consent was equalised for all forms of sexual activity in 2001. Civil partnerships have been available for same-sex couples since 2005. Same-sex couples were granted full adoption rights in 2013. Same-sex marriage was introduced in 2020. Since 1 September 2020, religious and church same-sex marriage and weddings have been permitted in Northern Ireland.[12]
Laws regarding same-sex sexual activity
Historical persecution
Northern Ireland's homosexuality laws have historically reflected the English position, given the history of English dominance over Ireland since the 12th century, culminating in official union under the United Kingdom of Great Britain and Ireland in 1801.[13] Following the partition of Ireland, Northern Ireland remained a part of the United Kingdom, with the remainder of Ireland forming the independent Republic of Ireland.[13]
Homosexuality was a matter for the ecclesiastical law of the Roman Catholic Church until the reign of King Henry VIII.[14] During his rule, the act of buggery was criminalised by the Buggery Act 1533 as part of increasing the State's role in public life at the expense of the Catholic Church.[13] This prohibited anal sex with "mankind or beast" anywhere in England and Wales on pain of death, but did not apply to Ireland until 1634.[15] The death penalty was retained until 1861.[13][16] In 1885, the Labouchere Amendment introduced the offence of gross indecency in the Criminal Law Amendment Act 1885, which applied throughout England, Wales, Scotland and Ireland.[13] This broadened the scope of the criminal law to outlaw any form of male homosexual activity.[13] By contrast, adult lesbianism was never criminalised.[13]
The Victorian era laws criminalising male homosexual acts throughout Great Britain and Ireland, the Offences against the Person Act 1861 and Criminal Law Amendment Act 1885, remained in effect well into the 20th century.[17][18]
Campaigns for and against change
In 1967, the Parliament of the United Kingdom voted to pass the Sexual Offences Act 1967 for the limited decriminalisation of homosexual acts,[19] but this applied only to England and Wales.[20] Same-sex sexual activities were legalised in Scotland on the same basis as in the 1967 Act, by section 80 of the Criminal Justice (Scotland) Act 1980, which came into force on 1 February 1981.[21]
The British Government's failure to extend the 1967 reforms to Northern Ireland led to the establishment of organisations such as the Campaign for Homosexual Equality and the Gay Liberation Front.[22][21] During the 1970s, Northern Ireland was under direct rule from Westminster, so the organisations tried to bypass the Northern Ireland parties which were hostile to their cause and petition the Secretary of State for Northern Ireland directly.[23] Initially, this appeared fruitful, with the Secretary referring homosexual reform to the Standing Advisory Committee on Human Rights for Northern Ireland.[23] In 1976, the Committee recommended extending the 1967 reforms to Northern Ireland but warned that public support for the change in Northern Ireland was limited.[23] In 1978, the British Government published a draft Order in Council to decriminalise homosexual conduct in Northern Ireland between men over 21 years of age, in line with the 1967 reforms in England and Wales.[23] However, it failed without the support of any of the 12 Northern Ireland politicians in the Westminster Parliament and the open opposition expressed by the Democratic Unionist Party representatives.[23]
Gay men continued to face harassment from the Royal Ulster Constabulary police force throughout the 1970s and 1980s, with the Northern Ireland Gay Rights Association (NIGRA) recording instances of harassment and continuing to lobby for decriminalisation.[24] NIGRA members also faced arrests, forced medical examinations and house raids, ostensibly for other issues such as drug searches, but also had correspondence regarding the decriminalisation campaign confiscated by police.[24]
NIGRA were opposed by a vociferous Save Ulster from Sodomy campaign led by Ian Paisley, the Free Presbyterian Church of Ulster and the Democratic Unionist Party, both of which were established by him.[25][26] Initially, Paisley's campaign succeeded, with the British Government announcing in 1979 that it would not proceed with changes to Northern Ireland's anti-homosexuality laws.[27] Although the Government promised that the laws would not be enforced against gay men, police harassment and arrests continued on the pretence of other misdemeanours.[27] The arrest of one activist, NIGRA secretary Jeffrey Dudgeon, proved instrumental in the ultimate success of the decriminalisation campaign.[27]
European Court of Human Rights ruling
Jeffrey Dudgeon was a shipping clerk in Belfast, who was a gay activist and secretary of NIGRA.[21][28] On 21 January 1976, he was arrested by the Royal Ulster Constabulary drugs squad after they found marijuana and personal correspondence describing homosexual acts performed by him.[27] He was interrogated for over four hours about his sex life and made to sign a statement about his sexual activities.[29][21] The police forwarded the material to prosecutors to have Dudgeon charged with gross indecency, but the Director of Prosecutions decided not to proceed on the grounds that it would not be in the public interest.[30] Dudgeon was informed in February 1977 of the decision and his private papers, which had been annotated by the police, were returned to him.[21]
Both NIGRA and the Irish gay rights groups financially supported Dudgeon filing a complaint with the European Commission of Human Rights against Northern Ireland's anti-homosexuality laws in 1975.[30][31] Dudgeon alleged that the laws were invalid on two grounds. Firstly, he claimed that the laws and resulting police investigation interfered with his right to respect for private life in violation of Article 8 of the European Convention on Human Rights. Secondly, Dudgeon alleged that he had suffered discrimination on the grounds of sex, sexuality and residence in accordance with Article 14 of the European Convention on Human Rights. Despite having previously rejected similar earlier complaints as "manifestly inadmissible", the Commission declared the complaint to be admissible on 3 March 1978. On 13 March 1980, the Commission issued a report stating that "the legal prohibition of acts between male persons over 21 years of age breached the applicant's right to respect for his private life". It referred the case to the European Court of Human Rights for judgment on 18 July 1980.[21]
On 22 October 1981, the European Court of Human Rights ruled by a 15–4 majority in Dudgeon v United Kingdom that no member nation had the right to impose a total ban on homosexual activity.[32][28][31] More specifically, the Court held that the criminalisation of male homosexual acts for men above 21 years old in the Offences Against the Person Act 1861 violated Article 8 of the European Convention on Human Rights by interfering with his right to private life, regardless of whether he was actually charged or prosecuted under the law.[30][18][33] The case determined that countries no longer had a margin of appreciation to regulate adult private consensual homosexual acts in the name of morality, recognising that homosexuality was an immutable characteristic of human nature.[34]
Legalisation by Westminster (1982 and 2003)
The 1981 ECHR decision led the United Kingdom Parliament to extend the 1967 decriminalisation of male homosexual acts to Northern Ireland the following year with an Order in Council, the Homosexual Offences (Northern Ireland) Order 1982,[35][36] which came into force on 8 December 1982.[31]
Anti-LGBT provisions of the criminal law were removed completely throughout Northern Ireland and the United Kingdom in the Sexual Offences Act 2003, with section 9 abolishing the discriminatory offences of buggery and gross indecency.[37][38] Private gay sex between more than two people was legalised, but cottaging remains illegal.[38]
Age of consent equalisation (2000)
The homosexual age of consent fixed by the Homosexual Offences (Northern Ireland) Order 1982 was 21 years, higher than the heterosexual age of consent in Northern Ireland of 17. The ages of consent for homosexual and heterosexual acts in Northern Ireland were eventually equalised at 17 by the Parliament of the United Kingdom with the passage of the Sexual Offences (Amendment) Act 2000, which went into effect in 2001.[39]
To bring Northern Ireland in line with the rest of the United Kingdom, the British Parliament passed the Sexual Offences (Northern Ireland) Order 2008,[40] reducing the age of consent to 16, despite the opposition of the Northern Ireland Assembly.[41][42]
Pardons for historical convictions (2017)
In November 2016, the Northern Ireland Assembly passed a Legislative Consent Motion to extend the operation of United Kingdom's Policing and Crime Act 2017, including its Alan Turing Law, to Northern Ireland.[43][44] That law enables anyone convicted of anti-homosexuality offences to obtain a pardon.[45] The only opponent in the Assembly was Traditional Unionist Voice's Jim Allister, whose private member's motion to remove historical pardons from the Legislative Consent Motion failed on a voice vote.[46][45]
In June 2019, it was revealed that only two men had sought pardons for historic gay sex offences in Northern Ireland, and that they both failed to have their convictions overturned.[47]
Prison gay sex loophole lawsuits
In July 2021, lawsuits were launched in the UK - due to all prisons in Northern Ireland still legally banning gay sex since 1982, as within a loophole exemption.[48][49]
Recognition of same-sex relationships
Civil partnerships have been available for same-sex couples since 2005. Same-sex marriage was voted on five times by the Northern Ireland Assembly, and although it was supported by a slim majority on the fifth attempt, it was vetoed by the Democratic Unionist Party using the petition of concern.[50] The division over the issue eventually led the UK Parliament to directly legalise same-sex marriage in the region, which came into effect on 13 January 2020.[51] Until that date, same-sex marriages performed outside Northern Ireland were recognised as civil partnerships within its borders.[52][53] A 2018 Sky Data survey found that 76% of Northern Irish supported the introduction of same-sex marriage.[54]
Since 1 September 2020, religious and church same-sex marriage and weddings have been legal in Northern Ireland.[55]
Civil partnerships
Civil partnerships have been available to same-sex couples in Northern Ireland since 2005, when the UK Parliament passed the Civil Partnership Act 2004. The Act gives same-sex couples all of the rights and responsibilities as civil marriage.[56] Civil partners are entitled to the same property rights as married opposite-sex couples, the same exemption as married couples on inheritance tax, social security and pension benefits, and also the ability to get parental responsibility for a partner's children,[57] as well as responsibility for reasonable maintenance of one's partner and their children, tenancy rights, full life insurance recognition, next of kin rights in hospitals, and others. There is a formal process for dissolving partnerships akin to divorce. Civil partnerships can be conducted by religious organisations in England, Wales and Scotland but not in Northern Ireland.[8]
Same-sex marriage
Northern Ireland Assembly proposals (2012–2015)
There were five attempts to introduce same-sex marriage in the Northern Ireland Assembly, with a majority supporting legalisation in 2015 but the Democratic Unionist Party exercising its veto powers by filing a petition of concern.[50] Around the time of the successful Irish same-sex marriage referendum in 2015, an Ipsos Mori poll carried out between 20 May and 8 June 2015 found that 68% of people in Northern Ireland supported same-sex marriage.[58][59]
On 1 October 2012, the first Northern Ireland Assembly motion regarding same-sex marriage was introduced by Sinn Féin and the Greens.[60] The motion was defeated 50–45.[61][62][63]
On 29 April 2013, the second attempt to introduce same-sex marriage was defeated by the Northern Ireland Assembly 53–42, with the Democratic Unionist Party and Ulster Unionist Party voting against and Sinn Féin, the Social Democratic and Labour Party, Alliance and the Green Party voting in favour.[64][65][66][67]
The third attempt on 29 April 2014 was defeated 51–43, with all nationalist MLAs (Sinn Féin and SDLP), most Alliance MLAs and four unionists (two from NI21 and two from UUP) in favour. The remaining unionists (DUP, UUP, UKIP and Traditional Unionist Voice) and two Alliance MLAs voted against.[68][69][70]
A fourth attempt on 27 April 2015 also failed, 49–47. Again, Sinn Féin, SDLP and five Alliance members voted in favour, while the DUP and all but four of the UUP members (who were granted a conscience vote) voted against.[71][72]
On 2 November 2015, the Northern Ireland Assembly voted for a fifth time on the question of legalising same-sex marriage. Of the 105 legislators who voted, 53 were in favour and 51 against, the first time a majority of the Assembly had ever voted in favour of same-sex marriage. However, the DUP again tabled a petition of concern signed by 32 members, preventing the motion from having any legal effect.[73][74][75]
In February 2016, local LGBT publication The Gay Say started an online petition calling on the DUP to stop abusing the petition of concern against same-sex marriage legislation. On 20 September 2016, MLA Gerry Carroll (People Before Profit) presented the petition of 20,000 signatures to the Northern Ireland Assembly.[76][77]
A December 2016 LucidTalk poll of 1,080 found that 65.2% of people surveyed supported the legalisation of same-sex marriage in Northern Ireland.[78] However, a majority of Unionist respondents was opposed to same-sex marriage in Northern Ireland, with only 37.04% in favour (with support rising to 71% for Unionists aged between 18 and 24 years of age).[78] By contrast, 92.92% of Nationalist/Republican respondents and 95.75% of Alliance/Green/PBP voters were in favour.[78]
Court challenges to same-sex marriage ban (2015–2019)
Citing the Assembly's constant refusal to approve a marriage bill and the law that recognises marriages from other parts of the United Kingdom as civil partnerships, Amnesty International and local LGBT rights group Rainbow Project announced that a court challenge against Northern Ireland's same-sex marriage ban was likely to proceed on human rights grounds.[79][80]
In January 2015, a same-sex couple married in England and residing in Northern Ireland filed a lawsuit to have their marriage locally recognised.[81] In August 2017, the High Court ruled that same-sex marriage was a matter of social policy for the Parliament to decide rather than the judiciary.[82][83] An appeal was filed with the Court of Appeal, and a ruling was expected sometime in 2019.[84] On 7 April 2020, the Court of Appeal in Belfast ruled that same-sex couples faced unjustified discrimination while denied the opportunity to marry in Northern Ireland. But with changes to the law meaning same-sex weddings can take place in Northern Ireland since 11 February 2020, senior judges decided not to make a formal declaration on any human rights breach.[85][86][87]
Legalisation by Westminster (2019–2020)
In July 2019, Labour MP Conor McGinn announced his intention to attach an amendment to an upcoming administrative bill in the UK Parliament relating to Northern Ireland, which would legalise same-sex marriage three months after passage of the bill if the Northern Ireland Assembly remained suspended. Under the terms of the originally-drafted amendment, the region's executive could approve or repeal the measure upon resumption.[88] The amendment passed in the House of Commons with 383 votes in favour and 73 votes against.[89][90] McGinn's amendment, which was further amended by Lord Hayward during passage in the House of Lords, required the Secretary of State to issue regulations extending same-sex marriage to Northern Ireland if the Assembly did not reconvene by 21 October 2019. The bill passed its final stages in the Parliament and received royal assent on 24 July 2019.[91][51]
The regulations implementing same-sex marriage were signed by Julian Smith, Secretary of State for Northern Ireland, on 19 December 2019.[92] Those regulations took effect on 13 January 2020.[93][94] With couples required to wait 28 days after submitting their intention to marry, the first same-sex wedding occurred on 11 February 2020.[92][95] That day, the first legally recognised same-sex marriage in Northern Ireland was celebrated for Belfast couple Robyn Peoples and Sharni Edwards-Peoples.[96] Couples in a civil partnership have been able to convert their union to a marriage since December 2020.[97][94]
Adoption and parenting rights
Adoption by unmarried and same-sex couples was legalised after rulings by the High Court in 2012,[98][99] and the Court of Appeal in 2013, that Northern Ireland's ban on same-sex couple adoption was discriminatory and a breach of human rights.[100][101][102] The ban had been defended by the Northern Ireland Department of Health and its minister, Edwin Poots.[102] A further appeal by Poots to the Supreme Court of the United Kingdom was rejected in 2013, bringing Northern Ireland into line with the rest of the United Kingdom on LGBT adoption.[103][104] In December 2018, nearly 5 years after the change of adoption laws, it was reported that out of 30 same-sex couples who had applied to adopt, only 2 couples had had a child placed with them - a success rate of 1 in 15. The lower rate in Northern Ireland could be due to the fact that adoption processes can take several years to be completed, meaning some adopters are still in the process and may have been approved, but not had a child placed with them yet, and that because unlike in England and Wales where same-sex adoption was introduced in 2005 and in Scotland in 2009 by their respective parliaments, Northern Ireland only did so in 2013 after a lengthy legal battle.[105]
The legal position regarding co-parenting arrangements where a gay man/couple donates sperm to a lesbian couple is complex. Following the changes implemented by the Human Fertilisation and Embryology Act 2008, lesbian couples who conceive with donated sperm are likely to be treated as both being the parents of their child. If the lesbian couple a man is donating to are civil partners/married, the father's status will be automatically excluded. If the lesbian couple he is donating to are not civil partners/married, the mothers may be able to choose whether they wish the child's second parent to be the father or the non-birth mother.[106]
Altruistic surrogacy is legal in the United Kingdom, including Northern Ireland.[107] The law supports gay fathers conceiving through surrogacy in the UK in the same way as it does heterosexual couples and allows for applications to the relevant court, for such parents who wish to be named on their child's birth certificate as the legal parents/guardians of the child.[108]
Transgender rights
The Gender Recognition Act 2004 of the United Kingdom, which provides for a person's change of gender to be officially recognised, applies to Northern Ireland.[109] The legislation was introduced after the 2002 case of Goodwin v United Kingdom, in which the European Court of Human Rights ruled that the United Kingdom's earlier failure to do so was a violation of articles 8 and 12 of the European Convention on Human Rights.[109] To change gender, a person must demonstrate gender dysphoria and have lived in the relevant gender for two years before applying for a gender recognition certificate.[110] Before the 2020 introduction of same sex marriage, a person had to be unmarried before changing their legal gender.[109][110]
Northern Ireland court ruling
In May 2021, a court judgement by a judge within Northern Ireland under a challenge to the near 20 years old UK gender recognition law made a binding ruling that "gender dysphoria" based on an individual's mental dynamic is no longer legally required - due to the WHO decision back in 2019, no longer treating outdated "gender identity disorder" under DMD-IV as a mental illness or mental disorder. It only applies to Northern Ireland so far and not the rest of the UK, but sets up a legal precedent in the future for the rest of the UK.[111][112]
Discrimination protections
Equality framework
Under the Good Friday Agreement, the Government of the United Kingdom agreed that it would create:
a statutory duty on public authorities in Northern Ireland to carry out all their functions with due regard to the need to promote equality of opportunity in relation to religion and political opinion; gender... and sexual orientation.[113]
This is reflected in section 75 of the Northern Ireland Act 1998, which requires public authorities in Northern Ireland to have due regard to promoting equality of opportunity between persons of different sexual orientation, among other things.[113] In practice, this requires each authority to create an Equality Scheme to demonstrate how they will achieve this.[113] The Equality Commission for Northern Ireland monitors compliance by public authorities with their section 75 duties.[113]
Anti-discrimination laws
Northern Ireland is the only jurisdiction in the United Kingdom where the British Equality Act 2010 has limited application.[114][115] There are two main sources of anti-discrimination law on the grounds of sexual orientation.[116] The Employment Equality (Sexual Orientation) Regulations (NI) 2003 prohibit discrimination and harassment in employment, higher education and vocational training, and went into effect on 2 December 2003.[114][116] The Equality Act (Sexual Orientation) Regulations (NI) 2006 prohibit discrimination in the provision of goods and services, premises, education and public functions, and went into effect on 1 January 2007.[114][116] The laws were opposed by conservative religious activists and groups.[117] The Democratic Unionist Party's Jeffrey Donaldson introduced a motion opposing the 2006 regulations, which were rejected by Sinn Féin as an attempt to stir up homophobia and failed in the Assembly on a tied 39-all vote.[118]
The Sex Discrimination (Gender Reassignment) Regulations (Northern Ireland) 1999 provides a degree of protection for transgender people who are undergoing "gender reassignment" in employment and vocational training.[119][120]
Ashers Bakery case
In what became known as the "gay cake case", the Ashers Bakery, which is operated by evangelical Christians, was ordered by the County Court in 2015 to pay £500 in damages for breaching anti-discrimination laws by refusing to bake a cake featuring the slogan "Support Gay Marriage".[121][122] The proposed cake also featured Sesame Street characters Bert and Ernie,[123][124] who had been subject to debunked speculation that the two were gay.[125][126] The decision against the bakery was upheld by the Court of Appeal.[127][128]
The case led to opposing demonstrations for and against the decision,[122] with LGBT activist Peter Tatchell supporting the bakery's refusal to produce a message they disagreed with on the grounds of freedom of conscience and belief.[129] In 2014, Democratic Unionist Party MLA Paul Givan proposed introducing a "conscience clause" into Northern Ireland's equality laws to allow anti-LGBT discrimination by people and businesses on the basis of their religious beliefs.[130] The proposal was supported by the then First Minister Peter Robinson and his Democratic Unionist Party colleagues but opposed by other parties in the Northern Ireland Assembly as well as the Equality Commission for Northern Ireland.[131] His successor Arlene Foster threatened to limit the powers of the Equality Commission for Northern Ireland, alleging that it was not protecting the interests of faith communities.[132]
The Supreme Court of the United Kingdom sat in Belfast to hear a further appeal over four days commencing on 30 April 2018.[133] On 10 October 2018, the five justices comprising the Court unanimously ruled that because the bakery's objection related to the proposed message on the cake rather than the customer's personal attributes, there was no discrimination on the grounds of sexual orientation.[nb 2][134][135][123][136] Lee indicated that he would appeal the matter to the European Court of Human Rights.[137] In January 2022, the ECHR dissimmed the case due to lower courts ruling on the issue, keeping the lower court's ruling intact.[138]
Gay conversion therapy banedit
In April 2021, a non-binding motion passed in Stormont, with 59 to 24 votes against to introduce a ban on conversion therapy. The DUP attempted to amend the motion to allow for limited therapy in relation to "preaching, prayer, and pastoral support", arguing that this did not constitute conversion therapy, but this was defeated.[139][140]
Blood donationedit
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