As a member of the European Union since 1973, Ireland is subject to the Charter of Fundamental Rights and Freedoms. Article 21 of this stipulates that “any discrimination based on any ground such as sex […] or sexual orientation shall be prohibited.”

Ireland must abide by the EU’s anti-discriminatory Directives and implement them via domestic legislation. Article 13 of the European Community Treaty focuses on forms of anti-discrimination which include sexual orientation. The Act Against Discrimination (Equality Directive 2000/78/EC) includes sexual orientation. Article 1 of the Directive states: ‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’ As a member of the EU, Ireland is bound by the Directive. Ireland implemented this Directive with Acts such as the Equality Status Act 2000 and the Employment Equality Act 1998.

The 1937 Irish Constitution recognises the equality of Irish people before the law. Homosexuality was illegalised in Ireland until 1993 (See Norris v Ireland below). The Criminal Law (sexual offences) Act 1993 terminated the prohibition of same-sex sexual activity. Section 2 of the Act states: ‘Subject to sections 3 and 5 of this Act, any rule of law by virtue of which buggery between persons is an offence is hereby abolished.’ The act also included provisions for the equal age of consent (17) for both same-sex and opposite-sex couples and the ability for all to work in the armed forces.

Marriage in Ireland was governed by the Civil Registration Act 2004, which, prior to May 2015, invalidated same sex marriage (Interpretation (2) (e)). However, the Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015 has recently been passed with the Irish referendum that took place on 22^nd May 2015. Ireland is now the first country in the world to bring in marriage equality by popular vote, rather than through parliamentary legislation.

Civil partnerships are recognised by the Republic, governed under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, which came into force in 2011.

Adoption by same-sex couples is now legal. The Government announced that a revised draft of the Children and Family Relationships Bill 2015 gives cohabitating couples and those in civil partnerships full adoption rights. The bill was passed by the Senate on 30 March 2015.

The Irish Refugee Act 1996 recognises applications based on a fear of persecution due to membership of ‘a particular social group’ (section 2) which specifically includes membership of a group of persons whose defining characteristic is their sex or sexual orientation (section 1).

Anti-discrimination laws include the Employment Equality Act 1998, as Section 6 (2) (d) prohibits discrimination on the grounds of sexual orientation. This is reinforced by s3(2)(d) of the Equality Status Act 2000 which explicitly recognises discrimination based on sexual orientation. The act states; ‘As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are: that they are of different sexual orientation’.

However, section 37 of the Employment Equality Act 1998 does allow religious organisations, medical institutions or educational institutions an exemption on employment grounds if it enables them to continue their religious ethos.

Northern Ireland only: The Gender Recognition Act 2004 enables transsexual people to align their UK birth certificates with their self-identified gender. The Act requires applicants to have lived in the acquired gender for two years before a certificate is issued. It makes no requirement for sex reassignment surgery to have taken place, although such surgery is accepted as supporting evidence. There is a significant difference to the proposed plans for transgender legislation in the Republic.

The Gender Recognition Act 2015 was passed in the Republic on 15^th July 2015, and will come into force at the end of July 2015. It has been strongly criticised for enforcing a medical evaluation on those applying. It also obliges married applicants to divorce in order to obtain official gender recognition, pending the marriage referendum explained below. Legal gender recognition will not apply to individuals under the age of 16 years, while persons aged between 16 and 17 years will be subject to an onerous (probably impossible) four-part application procedure along with the prequisite of parental consent.

In the case of Foy v. An t-Ard Chláraitheoir & Ors, Dr Foy was a male-to-female transsexual and sought a finding that the existing legal regime infringed her constitutional rights to marry a biological man. In support of her claim, she relied on case law from the ECHR. McKechnie J noted that in Ireland it is crucial that parties to a marriage be of the opposite biological sex. The judge noted that Article 12 of the ECHR is equally predicated. Accordingly, he found that there was no sustainable basis for the applicant’s submission that the law which prohibited her from marrying a party of the same biological sex as herself, was a violation of her constitutional right to marry. The judge concluded that the right to marry is not absolute and has to be evaluated in the context of several other rights, including the rights of society. Therefore, the state is entitled to hold the view which is espoused and evident from its laws.

The Irish Supreme Court returned Foy’s case to the High Court in 2005 to consider the issues. Foy had also issued new proceedings in 2006 relying on a new ECHR Act, which gave greater effect to the European Convention on Human Rights in Irish law. The two cases were consolidated and were heard in April 2007. Dr Foy stressed the Goodwin decision where the European Court of Human Rights had found that the UK had breached the rights of a transgender woman, including her right to marry.

McKechnie J was very reproachful of the government in his judgment and asserted that, because there is no express provision in the Civil Registration Act, which was enacted after the Goodwin decision, it must be questioned as to whether the State deliberately refrained from adopting any remedial measures to address the ongoing problems. He emphasised that Ireland is very much isolated within the member states of the Council of Europe with regards to these matters. The judge concluded that by reason of the absence of any provision which would enable the acquired identity of Dr Foy to be legally recognised in this jurisdiction, the state is in breach of its positive obligations under Art 8 of the Convention. He issued a declaration that Irish law was incompatible with the ECHR and added that he would have found a breach of Dr Foy’s right to marry as well if it had been relevant. From 1997 to 2013 Dr Foy was not granted legal recognition as a woman in the form of a birth certificate. Ireland will not be compatible with EU regulations until the Gender Recognition Act comes into force.

Hannon v First Direct Logistics Limited 2007 demonstrated the effectiveness of anti-discrimination within the workplace, as future employers will have to offer protection for the transgender community. As seen in Hannon, discrimination in the workplace on the basis of gender identity and/or sex is being addressed by institutions of justice. This does not however, extinguish the existing discrimination to the LGBTI community that remains in Ireland.