David Norris (Independent) | Oireachtas source

The Minister of State is a very decent person. I will remind him of the Minister’s Second Stage speech in which it was stated, "I accept this is not ideal but the existing constitutional prohibition on same-sex marriage is a blockage in that respect". I disagree that there is a constitutional prohibition. The late Declan Costello - I think he is the late. Did he die? Nobody knows, so he is of no relevance because nobody remembers him. He has gone from the pages of history. Declan Costello, a very decent man, pointed out in the 1967 constitutional review that the Constitution was wide open to same-sex marriage. He was very concerned about it as he did not like the idea of it at all but he drew attention to it. There is a one-time Attorney General saying this in 1967 about the constitutional prohibition.

In his letter to the Minister for Social Protection in November 2012, the Council of Europe's Commissioner for Human Rights, Nils MuiŽnieks, stated, "Divorce should not be a necessary condition for gender recognition as it can have quite a disproportionate effect on the right to family life". That is the Council of Europe's Commissioner for Human Rights, a strong voice, not somebody off the street. This is someone with a professional interest in the area.

The United Nations Human Rights Committee in concluding its observations on the Irish periodic report under the Covenant on Civil and Political Rights stated:

[It was] concerned that the new heads of the gender recognition Bill approved by Cabinet in June 2014 retained the requirement for married transgender persons to dissolve existing marriages or civil partnerships to have their preferred gender formally recognised.

There are some cases where it might appear to go in the opposite direction but one has to be very careful in parsing and analysing them. The European Court of Human Rights, for example, took a less clear-cut view in the case of Hamalainen v. Finland in July 2014. In that case, a transgender woman who had married in her former male gender was barred from recognition of her female gender unless she and her partner converted their marriage into a civil partnership or divorced, which they did not want to do. The Grand Chamber of the Court held that the requirement was not disproportionate in that case because the transition from marriage to civil partnership in Finland was almost a formality and the differences between the status of both were minimal. That does not apply here as Finland is a very different jurisdiction. We are used to being told Greece is not Ireland. Ireland is not Finland either.

Fergus Ryan, an authority in this area, in an article in The Irish Times, stated, "It remains an open question whether requiring couples to divorce to gain a particular benefit amounts to an attack on marriage, contrary to Article 41 of the Constitution". Here is a noted constitutional expert saying this requirement amounts to an attack on marriage, and presumably the family.

The European Parliament's 2010 paper on transgender rights cautioned that forced divorce may be in breach of Articles 7 and 9 of the Charter of Fundamental Rights, namely respect for private and family life, right to marry and right to found a family. The authors noted the Austrian constitutional court has granted a transsexual woman the right to change her sex to female while remaining married to her wife. The German constitutional court has made a similar ruling.

The Equality Authority stated the single status provision was unnecessary:

It is the gender of each party at the date of marriage that counts in determining the validity of the marriage. As such, the concern that gender recognition would convert a heterosexual marriage into a marriage between parties of the same sex is legally unfounded.

The last contribution I will quote was one that greatly moved me. The lady who wrote the e-mail is in the Visitors Gallery. I am not sure we are supposed to put names on the record. If they are not supposed to be on it, then somebody in the Editor’s office can block it out. It is Victoria Mullen.