Paddy Burke (Fine Gael)
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I welcome the Minister of State, Deputy Costello, to the House.

Averil Power (Fianna Fail)
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I welcome the Minister of State to the House. This time last year Fianna Fáil published the Employment Equality (Amendment) Bill 2012, which was designed to end the situation whereby under Irish law religious-run institutions may be able to discriminate against employees, or potential employees, solely on the grounds of their being lesbian, gay, bisexual, an unmarried mother, separated, divorced or cohabiting outside marriage.

The Minister of State will be aware that the possibility of such discrimination is a source of real fear and unhappiness for LGBT people in particular, such as teachers and doctors and other staff, many of whom feel the need to hide something as important as their sexual orientation from their colleagues and go to work every day pretending to be somebody they are not.

When I published the Bill last year, I immediately wrote to the Minister for Justice and Equality, Deputy Shatter, as the Minister directly responsible, and the Minister for Education and Skills, Deputy Quinn, from an education perspective expressing my desire that we would be able to work on this issue on an all-party basis and agree to make progress on it. I also made clear to both Ministers in my initial correspondence and in follow-up contact with them and their advisers that I would accept any amendments which they or their legal advisers felt were necessary to improve the text that would deliver on the principle of the Bill and end the discrimination. Therefore, I was deeply disappointed when the Government chose to oppose the Bill on Second Stage in the Seanad. The reason I was disappointed was that so many teachers in particular had written very personal e-mails to me about what they had gone through and their desire to have section 37(1) of the Employment Equality Act 1998 amended prior to the commencement of the next school year which was last September. Unfortunately not only was that opportunity missed but now at the end of February, I and many people are wondering if this opportunity will be taken before the next school year which is next September.

In rejecting the Fianna Fáil Bill last year, the Minister, Deputy Shatter, gave a number of commitments to this House. He stated that the Government accepted the principle of the Bill and would bring forward its own proposals early in the new year. He made this contingent on the finalisation of the amalgamation of the Human Rights Commission and Equality Authority and said that the new body would be tasked with developing proposals for Government to amend section 37(1). Ten months on from the debate on that Bill in this House which the Government voted down, not only have proposals not been brought forward, but the body to be tasked with developing the proposals has not even been set up. I am tabling this matter for discussion as I am seeking information on what the Government plans to do. Is it still intended to wait until the new human rights and equality commission is in place before commencing work in this area? Is there any hope section 37(1) of the Employment Equality Act 1998 will be amended prior to the commencement of the next school year?

Joe Costello (Dublin Central, Labour)
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I thank Deputy Power for tabling this motion and apologise for the absence of the Minister for Justice and Equality, Deputy Shatter. I acknowledge the legislation put forward by Deputy Power last year and thank her for her continued interest in this particular matter.

On behalf of the Minister, I wish to restate the commitment given by him, with the Minister for Education and Skills, Deputy Quinn, to strengthen the statutory protection for equality in this area. The Government has undertaken in its programme for Government to ensure that people of non-faith or minority religious backgrounds and publicly identified LGBT people would not be deterred from training or taking up employment as teachers in the State.

The Minister, Deputy Shatter, has previously expressed concern about the potential impact of section 37 of the Employment Equality Act on lesbian, gay, bisexual and transgender, LGBT, persons. This section is designed to allow schools and other institutions to maintain their religious ethos. It 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.

The Minister, Deputy Shatter, is concerned, however, that in practice the balance is not a fair one and that this provision can operate in a way that is unfair to LGBT persons. In this House last May, the Minister welcomed the dialogue initiated by Senator Power and set out his preliminary ideas on how reform might be approached, having regard to advice that this provision of the Employment Equality Acts touches on issues of profound constitutional sensitivity and importance.

The competing rights in this area include freedom of religion, freedom of assembly, right to privacy and to earn a living, freedom of expression and conscience, and the right to freedom from harassment and discrimination. The constitutional obligation on the State to vindicate the personal rights of citizens is also important. As a pluralist constitutional democracy, it is incumbent on the Legislature to respect and promote both equality of treatment and tolerance of and respect for religious differences. For these reasons, the Minister considered that an extensive consultative process and formal assessment of the options should be undertaken. It remains, therefore, his intention to ask the new Irish human rights and equality commissioners to examine the issue as a priority. The commission will be invited to report on views and recommendations to the two Ministers centrally concerned, the Minister for Education and Skills and the Minister for Justice and Equality, as well as to the House. The Minister, Deputy Shatter, wishes to stress his commitment, once this necessary consultation process is completed, to bringing forward Government proposals for any necessary anti-discrimination amendment to this provision.

To address the core of this issue, the following progress has been made to date. Senators will be aware of the publication on 5 June 2012 of the general scheme of a Bill to replace the Equality Authority and the Human Rights Commission with a new Irish human rights equality commission. Drafting of the Irish human rights and equality Bill is at an advanced stage and the Minister expects to be in a position to bring this to the Cabinet in the near future.

At the same time, practical preparations to establish the new Irish human rights and equality commission have also advanced. As Senators will be aware, an independent selection process relating to the membership of the new commission is under way. The intention is that the successful applicants will be appointed to the two existing bodies, the Equality Authority and the Human Rights Commission, pending enactment of the necessary legislation to effect the merger. I should also mention that it is intended that the successful applicants will meet with the Joint Committee on Justice, Defence and Equality. The selection process and timetable are matters for the independent selection panel but the Minister hopes to be in a position to make a further announcement on the appointment of the new commission soon. This is a necessary preparatory step to the consultation envisaged by the Minister and one which he had hoped to be able to conclude by now. He acknowledges that there may be frustration in some quarters anxious for a swift amendment to section 37. However, he cautions against action without having given all interested parties the opportunity to contribute to the debate and fully consider all the options open to us. The new commission will be uniquely placed to carry out such a consultation.

The Minister, Deputy Shatter, considers it is worth noting the priority that the Government has given over the past year to events highlighting issues affecting LGBT persons, both nationally and on the EU stage. These events have included the first EU Presidency side-event on LGBT issues since 2004, which focused on homophobic and transphobic bullying. He feels strongly that this is important groundwork in preparing for informed public debate on these issues in the forthcoming consultation and for future discussions in this House.

Averil Power (Fianna Fail)
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I acknowledge that the Minister of State is responding to the issue on behalf of the Minister for Justice and Equality, Deputy Shatter, who is not here today. I am disappointed to learn that developing proposals in the area is still contingent on the merger of the equality bodies, as that is proceeding at such a slow pace. The word "shortly" has been used many times in the past year regarding the equality bodies, although I appreciate this is not a matter for which the Minister of State has direct responsibility.

When we discussed the matter last year I indicated that I did not understand in the first place why we needed to have public consultation on the issue. I accept there is absolutely a requirement from a legal perspective to be careful about the wording, particularly given the constitutional provisions in the area and the competing concerns regarding the constitutional provisions on equality on one hand and freedom of religion on the other. I accept the legal wording must be worked out.

I do not accept the need to consult on the principle of the matter. Either we accept that it is wrong to discriminate against people purely on the basis of their sexual orientation or we do not. If religious institutions could discriminate against somebody on the basis of colour or any other intrinsic quality, we would not ask them for their opinion on whether we should change the legislation, we would just accept it is wrong and move on with the change. I am unhappy that the process is still contingent on public consultation.

I ask the Minister of State to bring up the issue again with the Minister and ask that he brings more urgency to it. It is important. There is another school year coming and the Minister of State correctly commented on the progress made in other areas, such as bullying. I welcome that and the work done by the Minister for Education and Skills, Deputy Quinn, in particular, in prioritising the tackling of homophobic bullying. However, the reality is the reason so many young people are unhappy is because they are robbed of role models or teachers who cannot be free to be themselves. That leads to isolation, unhappiness, depression and, ultimately, suicide in our young people. It is great that we are working to tackle bullying but we must change the whole climate in which young teenagers are brought up if we are to tackle the issue.

I ask the Minister of State to revert to the Minister with these concerns and ask him to bring a greater sense of urgency to the issue.

Joe Costello (Dublin Central, Labour)
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The two bodies are being merged. As the Minister has indicated, the Irish human rights and equality commission Bill is close to being brought to the Cabinet and published. The Minister is already in the process of establishing the Irish human rights and equality commission, and it will be set up by merging the two existing bodies, pending the introduction of the legislation.

With regard to consultation, the Supreme Court found that the existing legislation was constitutional, so arguments can be made on both sides. The Minister for Social Protection is working on the draft heads of a gender recognition Bill, which will also be fairly complex. The gender recognition advisory group report was published in July 2011 and it is expected that the heads of the Bill will be brought shortly to the Oireachtas Joint Committee on Social Protection and Education.