18 May 2021
Introduction
In Northern Ireland, the Troubles are not the only part of its troubled past and present. In March this year, the Stormont administration found itself mired in controversy over women’s reproductive rights and access to abortion services. In April, a fresh controversy arose: a legislative ban on so-called “gay conversion therapy”. On 18 March 2021, Ulster Unionist Party MLAs Doug Beattie and John Stewart tabled a private member’s motion in the Northern Ireland Assembly calling for a legislative ban on the practice. The motion was debated on 20 April, with one amendment ringfencing religious activities from the proposed ban, taking centre-stage.
To characterise the debate which followed as polarising would be to put it mildly. The Assembly Hansard for 20 April records angry, frustrated exchanges between MLAs who called for safeguarding the LGBTQ community from harmful practices (condemned by the UN Human Rights Council as creating “a significant risk of torture”) and MLAs who called for safeguarding the free exercise of religion.
In the event, the DUP amendment failed and the UUP motion was passed unamended by 59 votes to 24, providing Communities Minister Deirdre Hargey MLA with a strong mandate to bring legislation to ban conversion therapy in Northern Ireland. However, that was not the end of the matter. In the immediate aftermath of the Assembly vote, the DUP signalled its intent to block legislation unless “robust protections for churches” were included. Eight days after the vote, the Northern Ireland First Minister and DUP leader Arlene Foster MLA faced significant rebellion in the party against her leadership and announced her intention to resign both the leadership of the DUP and the First Ministership. The extent to which the motion to ban conversion therapy played a part in the rebellion against Foster remains a matter for debate, especially given concerns about the impact of the DUP’s political stance on the very recently enacted access to abortion and same-sex marriage in Northern Ireland.
Almost a month later, Mr Justice Scoffield in the Northern Ireland High Court handed down judgment in JR111’s application for judicial review [2021] NIQB 48, declaring the language of “disorder” in the Gender Recognition Act 2004 (GRA) to be in breach of the ECHR.
As many around the world celebrated the International Day against Homophobia, Biphobia and Transphobia on 17 May, the events of the past month were a reminder of how different the story of LGBT equality was in Northern Ireland, compared to Great Britain.
Decriminalising sodomy
Until 1967, the sections 60 and 61 of the Offences Against the Person Act 1861 and section 11 of the the Criminal Law Amendment Act 1885 criminalised buggery, attempted buggery, assault with intent to commit buggery, indecent assault, gross indecency between men and the procuration and attempted procuration of indecent assault between men. Punishments always involved imprisonment, ranging from maximum terms of two years to ten years for the less “abominable” offences. Buggery, specifically described as “the abominable crime” in the 1861 Act, invited a term of imprisonment between ten years and life. This regime was more-or-less uniform across both England and Wales and Northern Ireland (devolution in the UK not having existed before 1921).
In 1967, following the Wolfenden Report’s recommendations, the Sexual Offences Act 1967 decriminalised sodomy between two men in private, aged 21 years or above, in England and Wales only. Sodomy was decriminalised in Scotland in similar terms by the Criminal Justice (Scotland) Act 1980. Although Northern Ireland had gained devolution in 1921 (including in criminal law), the then Stormont administration had not followed the England and Wales law reform and had in any event been abolished in 1973 after the start of the Troubles. As a result, responsibility over all of Northern Ireland’s governance had returned to Westminster and Whitehall. However, despite the UK Parliament considering draft legislation in 1978 to decriminalise sodomy in Northern Ireland, the result of a public consultation around this proposal proved too politically controversial to be realised.
Sodomy would not be decriminalised until after the landmark ruling of the European Court of Human Rights in Dudgeon v United Kingdom (1982) 4 EHRR 149, in which the Court decided that the breadth and absoluteness of the sodomy laws unjustifiably and disproportionately interfered with the right to private and family life under Article 8 of the European Convention on Human Rights (ECHR). Dudgeon would be invoked in 1988 to make a similar ruling in Norris v Ireland (1988) 13 EHRR 186 that the same sodomy laws in force in the Republic of Ireland were also in breach of ECHR rights.
Adoption rights
Before the Civil Partnership Act 2004 introduced a form of legal recognition for same-sex couples in the UK, the Adoption and Children Act 2002 allowed same-sex couples (and unmarried opposite-sex couples) to adopt children. However, its reforms did not extend to Northern Ireland (which had regained devolved government by then). Instead, adoption law in Northern Ireland continued to discriminate against unmarried opposite-sex couples and same-sex couples (whether or not civil-partnered). While the former found relief at the hands of the House of Lords in Re P [2009] 1 AC 173, same-sex couples in Northern Ireland would have to wait their turn until 2012.
Sitting in the Northern Ireland High Court, Mr Justice Treacy (as he then was) declared in The Northern Ireland Human Rights Commission’s application [2012] NIQB 77: “All individuals and couples, regardless of marriage status or sexual orientation are eligible to be considered as an adoptive parent(s)”. The central point in that judgment, affirmed on appeal, was the unjustifiable difference in treatment between same-sex couples who were completely excluded from being eligible to adopt (whether or not in a civil partnership) and opposite-sex couples, who could either adopt if married or adopt individually if unmarried.
Blood donation
In 2011, the UK Advisory Committee on the Safety of Blood, Tissues and Organs (SaBTO) recommended that men who have sex with men (MSM) be allowed to donate blood after a 12-month period since their last sexual contact. This was a significant change to the previous policy, in place since 1985, of a permanent ban for MSM in donating blood. The SaBTO recommendation was followed in Great Britain, but not in Northern Ireland.
The decision not to follow the SaBTO recommendation was made by then Northern Ireland Health Minister Edwin Poots MLA (currently the Agriculture, Environment and Rural affairs Minister) and found to be irrational by Treacy J in JR65’s application for judicial review [2013] NIQB 101. This was because, while the Minister had been entitled to maintain the permanent ban as a matter of public health concern, he could not also accept supplies coming from Great Britain which had been drawn following the 12-month deferral (which in fact he had). Treacy J’s findings were overturned in the Court of Appeal, where only the Lord Chief Justice would have allowed JR65’s cross-appeal about the permanent ban being disproportionate under EU law (especially the non-discrimination provisions under Article 21(1) of the Fundamental Rights Charter). Lord Justice Gillen and Lord Justice Weir were of the view that the Health Minister, who by then had changed, should be given a chance to make a new decision on the basis of the current prevailing circumstances and knowledge (following the CJEU decision in Léger v Ministre des Affaires sociales, de la Santé et des Droits des femmes (C-528/13)). Barely three months after the Court of Appeal’s judgment, the new Health Minister, Michelle O’Neill MLA (currently the deputy First Minister) announced an end to the permanent ban, moving to align with the 12-month deferral policy in Great Britain.
Same-sex marriage
Jubilation followed the legislation of same-sex marriage for Northern Ireland at Westminster, on an amendment moved by Conor McGinn MP to a government bill designed to keep the lights on in Northern Ireland while Stormont remained empty.
However, as with every other issue in the history of LGBT rights in Northern Ireland, the courts were not far from this debate. Two cases in particular sought to litigate the prohibition on same-sex marriage in Northern Ireland: Petitioner X, which concerned the recognition in Northern Ireland of a marriage between two men lawfully carried out in England, and Close and Others’ application for judicial review, which attacked the prohibition head on. In the High Court, both Petitioner X and Close and Others failed, while in the Court of Appeal, both succeeded to some degree. The central holding in both X and Close, that the lack of legislative extension of marital rights to same-sex couples did not breach the ECHR rights of LGBT individuals, was overturned on appeal. The basis for this was that, by the time X and Close were heard in the High Court, marriage equality legislation had been enacted in Westminster, Holyrood and Dublin and moreover had strong support in the Assembly (despite the Assembly’s support being defeated through the oft-criticised ‘petition of concern’ mechanism unique to Northern Ireland). Nevertheless, by the time the Court of Appeal handed down its judgments in X and Close, Westminster had legislated same-sex marriage for Northern Ireland, and so there was no point in making declarations as to the breach of ECHR rights.
Gender recognition
We now return to the start of this post – the judgment of Scoffield J in JR111. The Court’s conclusion to a lengthy and detailed judgment is in two parts: the first part (paras 131 – 139) outlines that, as a matter of discretion left to national authorities under the ECHR, the UK Parliament was and remains entitled to decide (via the GRA) that a medical element to gender recognition and transition be retained. The second part of the conclusion (paras 140 – 148) discusses the specific diagnosis that the GRA requires – gender dysphoria – and concludes that characterising it as a disorder is a breach of the right to private and family life under Article 8 of the ECHR. This is on the basis that “applicants for a [gender recognition certificate] face a quandary: in order to assert their legal rights to gender recognition, they must denigrate that aspect of their identity [gender] which the 2004 Act is in principle designed to vindicate”. This is all the more important given that the UK Government publicly states (as a result of the GRA reform consultation) that a transgender person does not and has never had a disorder. Moreover, the decision not to go down the route of legislative reform means that the Westminster Parliament has not had an opportunity to consider updating a statute that is 17 years old – in which time the medical understanding of gender has evolved considerably and the language of “disorder” has been rejected.
While the final relief in JR111 remains outstanding (the Court has directed further submissions on whether the language relating to gender dysphoria in the GRA can be “read down” or a declaration of incompatibility be made), it is important to outline the net effect of the judgment. The need for medical opinion as part of the gender recognition process remains, but the statute may not denigrate transgender people by characterising their experience as a disorder. This may well be a purely symbolic step, but as Schoffield J observed, “Words can and do matter in this context.”
Comment
Having had the doors to Stormont’s imposing Parliament Buildings shut on it time and time again, the long movement towards LGBT equality and dignity in Northern Ireland has turned, again and again, to the equally imposing but considerably warmer Royal Courts of Justice. The revolution in ECHR litigation brought about by the Human Rights Act 1998 (HRA) has played a large part in this movement. However, it is perhaps worth highlighting a growing revolution within this revolution and what this means for the future.
In nearly all of the judgments referenced here, the courts in Northern Ireland have stayed faithful to something known variously as the “mirror principle” or the “Ullah principle” (see Rosalind English’s post on this issue). When deciding matters on ECHR rights, our courts look to the Court of Human Rights at Strasbourg and generally keep up with it, going no further. In JR111, however, Schoffield J went into great detail about how, in any given field where a degree of latitude (“margin of appreciation”) is granted to individual countries under the ECHR, it is for a domestic court to decide ECHR compatibility as a matter of domestic law “with relatively unconstraining guidance from the Strasbourg Court”. This draws on Supreme Court judgments such as Nicklinson and DSD, in which the late Lord Kerr JSC provided a ringing endorsement of the idea that there has been a “retreat” from the need to only keep pace with Strasbourg. This is of course, not to say that the mirror principle has been consigned to history, but that there is a growing judicial acceptance of a simple fact: the rights contained in the HRA, despite deriving from international law, are domestic. Thus, when Strasbourg is silent, it is up to courts in the UK to decide for themselves what a right means, how it applies and whether it has been breached.
The domestication of ECHR rights greatly parallels the trajectory of LGBT rights in Northern Ireland: what started in Strasbourg in the 1980s has continued, 40 years later, in Belfast.
