LGBT and Law, with focus on Norris v Attorney General

Guest seminar for History module, University College Cork, February 2025

1. LGBT and Law, with focus on Norris v Attorney General Darius Whelan, School of Law, UCC HI2105 Case Studies in Research Skills

2. Timeline Norris files claim 1977 High Court October 1980 Supreme Court April 1983 European Court of Human Rights 1988 DecriminaliSation 1993

3. Photos from the Irish Times

4. Privacy Privacy not explicitly mentioned in Irish Constitution Recognised as ‘unenumerated right’ Marital privacy – McGee case (1973) - Contraception for married couples Courts deciding Norris case may have been influenced by ongoing abortion debates US Supreme Court had recognised right to abortion as part of privacy in Roe v Wade (1973) 4

5. Evidence Norris gave evidence himself and called multiple witnesses Evidence, for example, was that Homosexuality is not a choice It cannot be ‘treated’ Homosexuals are not more likely to assault or seduce children Depression can result from prejudice, etc. Christian churches state that homosexuality is wrong, but some theologians question this The State called no evidence 5 Photo – Courts Service

6. Supreme Court findings O’Higgins CJ finds that homosexuality is considered ‘morally wrong’ by Christian teaching (backed by evidence) leads to distress and unhappiness (backed by evidence) Relies on Wolfenden committee (1957) to find that homosexual conduct harms the institution of marriage – Turns men away from it Breaks up existing marriages He relies on a book by Professor West for this finding: Homosexual conduct spreads venereal disease Henchy J. (dissenting) analyses the evidence in a completely different way – see extracts 6

7. Norris’s arguments Laws were unconstitutional as they violated his rights to Privacy Equality Freedom of expression and association Bodily integrity 7 Photo – Courts Service

8. Norris’s Standing Standing to bring a case – Locus Standi Person must show they have been directly affected by the issue at hand to have locus standi Norris had not been prosecuted but suffered in other ways – e.g. Lived in fear of prosecution or blackmail His mental health had been affected by prejudice In 1976, his cross-channel mail was opened by authorities 8 Term - Locus Standi Translation - Place of standing Definition - The right of a party to appear and be heard before a court

9. Marital Privacy Norris was not allowed to raise arguments based on marital privacy as he was not married Questionable point on which McCarthy J. dissented McCarthy J. – Once Norris had standing, he could raise any possible argument about the law 20XX 9

10. Equality High Court and majority of Supreme Court: Buggery offence can be committed against both males and females as victims, so is not unequal Buggery can also be committed by a heterosexual or homosexual man Gross indecency between men – While it only applies to men, it is not an invidious discrimination Constitution states that state can have regard to differences of capacity, physical or moral, and of social function Norris was essentially arguing that there would be no complaint if the Acts were amended to include women, which would not benefit him. This was not an argument he was entitled to rely on. Dissenting judges did not address Equality in detail 10

11. Other Points The Dudgeon case (1981) was not binding on the court If the case were being argued today, since 2003, Norris would have been able to argue for two remedies: (a) a declaration of unconstitutionality; (b) a declaration that the Acts were incompatible with the European Convention on Human Rights The 1861 and 1885 Acts did not have a presumption of constitutionality as they were enacted pre-1937 11

12. Gerard Hogan commentary Gerard Hogan, ‘Re-examining McGee , Norris and the X. Case’ (2021) 65 Irish Jurist 25 https://www.jstor.org/stable/27128249?seq=1 Majority judgment is now almost universally regarded as a significant wrong turning by Supreme Court Case represented one of very few examples where a court expressly invoked avowedly traditional Christian/Irish Catholic values and where these values played a decisive role in constitutional law Henchy J. delivered a magnificent dissent. The majesty of his language sweeps all before it and gets to the essence of the human condition Photo - Office of the President of Ireland - Twitter

13. Other sources Colm Tóibín, ‘A brush with the law’ (2007) Dublin Review - https://thedublinreview.com/article/a-brush-with-the-law/ The David Norris Case – The Irish Courts Podcast (2024) https://youtu.be/lN0HGcRJaQE?feature=shared https://open.spotify.com/episode/4tbMZARQlhYfPWxJK6Puoa Irish Council for Civil Liberties, Equality Now for Lesbians and Gay Men (1990) – Go to link

14. Bowers v Hardwicke (1986) U.S. Supreme Court upheld constitutionality of anti-sodomy laws in Georgia 14

15. Eileen Flynn case Flynn v Power (1985) Eileen Flynn was a teacher of Irish and History in a convent school in New Ross. Complaint from parents that Ms Flynn was in an “association” with a married man whose wife had left him. Ms F did not deny this when “warned” about it by the principal, but stated that it was her own business. She was told her contract would end if she did not terminate her association. She then said she was pregnant. The baby was born in Ireland. She was told if she did not resign she would be dismissed; and then was dismissed. High Court – Costello J. - upheld dismissal: This dismissal is not based on pregnancy; it is based on the relationship between Ms F and the man. This was an open rejection of the norms of the school This was a small town. The pupils would come to know of what she did and would regard her behaviour as a rejection of the school’s norms of behaviour. Photo – Irish Times

16. Reform of law in 2015 From 1998 to 2015, institutions promoting religious values could continue to discriminate to preserve their religious ethos 2015 – Amendment in Equality (Miscellaneous Provisions) Act 2015 Criteria tightened up to make it more difficult to discriminate if the institution is publicly funded. For example, the action taken by the institution must be a response to conduct of the employee undermining the religious ethos of the institution rather than a response to that employee’s sexual orientation Teachers continue to fear discrimination Many LGBT teachers compelled to hide sexuality, says union – The Irish Times 80% of Irish LGBT+ teachers not out in school community • GCN

17. Brookfield Leisure Brookfield Leisure v A Worker (1993) The employee was employed as a lifeguard and fitness instructor. It was stated that she had been seen kissing a woman in the changing room. She stated that she did not do this. She was dismissed without an investigation. She claimed discrimination based on sex under the Employment Equality Act 1977. Decided: Sexual orientation was not covered by the reference to “sex” in the 1977 Act. A man was likely to receive the same treatment for similar conduct. (The club was concerned that people might stop using the club if they knew one of the instructors was a lesbian.) She could not claim under the Unfair Dismissal Act as she had only worked there for six months.