Katherine Zappone (Independent) | Oireachtas source

Yes. I will speak to amendment No. 14.

As the Minister of State said, we are at the heart of the Bill. I acknowledge the extensive work the Government and its officials have done on the Bill, as exemplified by the Report Stage amendments. I understand the Government and the original sponsor of the Bill, Senator Ivana Bacik, are extremely keen to get it right as best we can.

Amendment No. 14 is a logical response to amendment No. 13, about which I have very strong feelings, coming from a locus standiof sorts derived from what my spouse, Dr. Ann Louise Gilligan, and I had to face over a decade ago. I welcome her, as I welcome all of the other advocates present from the INTO, the LGBT helpline and GLEN, including Dr. Fergus Ryan and others, but I particularly welcome her because she took a case against the State while she was an employee of an institution managed by the Catholic archbishop. She was effectively outed in the case, by her own choosing, as a married lesbian and at the time section 37(1)(b) was staring her in the face. Amendment No. 14 proposes to delete it. If the Government was to accept it, we would not need Government amendment No. 13.

The section referred to states a faith-based organisation, including an educational institution, is not deemed to discriminate if it takes action which is reasonable necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution. Could conduct in public which clearly demonstrates that a woman is a married lesbian be reason enough in an educational institution managed by the Catholic archbishop for that institution to take action against her with regard to her employment? Would that action not be deemed to be discriminatory in the eyes of the law? The answer was "Yes" and it is still the answer. Was she afraid? The answer is yes. Did that stop her? The answer is no. However, there should be no fear and no chill factor, as the Minister of State called it. There should be only freedom to live as who we are and to make the choices we make, consonant with who we are, rather than denying who we are. We should place this alongside the freedom to respect an employer's ethos and values, although we may not agree with them.

As lawmakers, what should we do to section 37(1)(b) of the 1998 Act in order that such conduct, or other conduct that flows from an employee's identity, is not reason enough for a religious institution to discriminate against that person to protect its ethos? Amendment No. 14 proposes that we delete the offending section from our current law. Many advocates and advocacy organisations have argued for this in the past, but I will put forward my own arguments.

Despite what the Minister of State said, we have still not heard a full response from the Government on why we cannot delete the section. The Minister of State said on Committee Stage and has repeated today that the Supreme Court, in a 1996 judgment, upheld the constitutionality of section 37 because it was viewed as a reasonable balance between the competing constitutional rights involved. He has said that while we can seek to find a new balance, the better to meet the rights of employees, the logic of the Supreme Court's decision outlines the need for a balance to be struck and that it is not simply a matter of deleting certain elements of the existing Act.I still disagree, which is why I am moving this amendment.

It is important for the Government to elaborate even more than the Minister of State has done today in order to provide a substantive and reasonable rejection to what so many people in Ireland advocated for to offer absolute assurance to Irish employees working within religious institutions that deliver public services. Once again, I propose that it is more effective to delete existing section 37(1)(b). I will put forward two reasons for this. First, it is because the institution's right to protect its religious ethos is already adequately protected in Irish law. I agree that there is an important balance to strike between the protection of an institution's religious ethos and the rights of an employee to pursue their career without fear and discrimination. However, religious ethos is protected by sections 16, 25, 37(1)(a) and 37(2) of the Employment Equality Act and 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 people's individual employment contracts, form an adequate safeguard for the religious ethos of the institution.

My second argument for the deletion of I consider to be an offensive section in the former Act is the fact that although the Supreme Court found the section to be compatible with the Constitution, which the Minister of State has just said and which I accept, I do not think it is by any means clear that the Constitution as interpreted by the courts requires us to have this exception. Does our Constitution require the additional protections of 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, as far as I can determine. I do not think the court ever said that it was required. As per my first argument, it is already adequately protected. Those are the arguments to delete the offensive section. I believe that it would provide an absolute guarantee to protect the employee while our laws adequately protect a religious institution's ethos. I hope the Minister of State might shed a bit more light on that.