Katherine Zappone (Independent)

I welcome both the Minister, Deputy Shatter, and the Minister, Deputy Quinn, to the House. The presence of both of them today as we debate this historic Bill put forward by Senator Power is deeply appreciated by many throughout Ireland who have advocated change in regard to section 37 of the Employment Equality Act. I also welcome members of the public in the Gallery, as Senator Power did, because many of them have been champions of that desired change. Over the years I have referred to section 37 as the inequality clause of Ireland's employment equality legislation. I wish to commend my colleague, Senator Power, on bringing forward this Bill for all of the reasons she has indicated to us today. By doing so, she has demonstrated not only her political acumen but also her solidarity with those whose lives have been negatively impacted by the dark shadows of discrimination and unsafety that this section has cast on so many people over the past 14 years who have worked within religious institutions delivering public services.

My spouse, Dr. Ann Louise Gilligan, was one such individual. She had to face head-on the shadow of discrimination and unsafety the day she decided with me to take the Irish State to court because of its refusal to recognise our Canadian marriage. At the time she was teaching in St. Patrick's College, Drumcondra, one of the colleges of education that teaches teachers and the manager of that college is the Archbishop of Dublin. Though her action could be interpreted as undermining the religious ethos of her employment, Dr. Gilligan decided to do it anyway, carrying though it did a heavy threat of financial insecurity, professional loss and the culture of prejudice that section 37 imposes on her and thousands of others throughout our land. This section requires change.

Instead of adding further subsections to the Employment Equality Acts, I suggest it is more effective and just to delete the problematic subsection. My principle is that no one should be in the shadow of this section on the basis of his or her identity, and that is the principle I put forward. I will outline my reasons for this proposal, of which there are three. First, I think a religious ethos is adequately protected already. As the Ministers have both said, it is an important balance to strike between protection of an institution's religious ethos and the rights of an employee to pursue their career without fear and discrimination. Religious ethos is protected by sections 16, 25, 37(1)(a) and 37(2) of the Employment Equality Acts and by a number of other laws. Section 37(1)(a) allows an institution to give preference to members of its own faith for a job, a promotion or for particular duties. Sections 37(2) and 25 permits all employers to treat people differently where there is a genuine and necessary occupational requirement. All of these sections are an adequate safeguard to the religious ethos of an institution. Taken together, these provisions also reflect the exceptions which are permitted under EU law. Section 37(1)(b) goes beyond that and, is in my view, unjust.

My second reason is to question if section 37 is compliant with EU law. It would appear we are not currently compliant with EU law in a couple of ways. It is not clear whether section 37 permits discrimination based on a person's gender in order to protect the religious ethos of an institution. I say this because section 37 does not apply to the part of the Act, namely, Part III, which contains provisions to protect people against gender discrimination. Thus section 37 does not appear to be compliant with the EU recast directive of 2006 which does not allow us to discriminate for any reason on the basis of someone's gender.

The EU framework recast and race directives prohibit discrimination with regard to sexual orientation, disability, age and race in addition to gender. These are categories that refer to people's identities first and foremost as distinct from their behaviour and this is a similar distinction to the one made by the Minister, Deputy Shatter, in his remarks. Section 37(1)(b) in its current form permits discrimination against people on the basis of their identities. A European Commission report expressly states section 37(1) as it stands is broader than allowed for in the framework directive. To discriminate against someone's identity if she is a lesbian, disabled or older is not reasonable because one's identity is irrelevant to how one performs the job of teaching young people or caring for the sick.

Who is still not protected by the Bill as tabled by Senator Power? The Bill does not cover everyone affected by the legislation. Even if a person cannot be discriminated against on the basis of their gender to protect religious ethos, although I suggest this is not the case, it is sometimes difficult to predict which ground of discrimination is applicable in some circumstances. For example, a married heterosexual woman or a lesbian woman who becomes pregnant through assisted reproductive technology could be regarded as undermining the religious ethos on the basis of having a disability as opposed to on the basis of her gender. Since this would be a form of disability discrimination she would not be protected by the proposed Bill or by section 37 as it stands. Singling out two, three or four of the nine equality grounds for particular treatment in the context of the Bill could be seen as implying it is acceptable for an institution to discriminate against an employee on one of the other grounds, for example, a pregnant woman or the partner of a pregnant woman who is covered by the gender ground, a person who is HIV-positive who is covered by the disability ground or transsexual person who is covered by the gender and disability grounds. Given that we do not have the definition of gender identity as yet in Irish legislation, the gender ground under the equality legislation covers only transsexual people and not transgender people. Only a repeal of section 37(1)(b) can offer full protection to all people.