1. INTO LGBT TEACHERS GROUP 10 th Anniversary Conference Marker Hotel, Dublin 22 nd November 2014 Ivana Bacik

2.  Context for discussion on primary education:  National School system 1831  Right to education – Article 42, 1937 Constitution  Role of religion emphasised even in Education Article  Article 42.3.1:  “The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.”

3.  Article 42.4, Constitution:  “The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.”

4.  Article 44.2.4:  “Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.”

5.  Education Act 1998 – role of ‘patron’  3,200 national schools approx  96% denominational  90% Catholic  Only 74 multi-denominational primary schools under Educate Together  O’Keeffe v. Ireland, ECHR, 28.1.2014  “unique” nature of Irish education system

6.  Article 42.3.3:  “a certain minimum education, moral, intellectual and social”  SO – a national primary curriculum, revised 1999  Right not to attend religious instruction (44.2.4)  BUT (INTO, 2004):  “Religious pictures and icons are displayed in the school halls and corridors and all classrooms have some religious symbol such as a crucifix or statue. Many classrooms have an altar that is used for prayer services during the year.”

7.  RULE 68:  “Of all parts of the school curriculum religious instruction is by far the most important…Religious instruction is, therefore, a fundamental part of the school course, and a religious spirit should inform and vivify the whole work of the school.”  BUT: Article 14, International Convention on the Rights of the Child:  “parties shall respect the right of the child to freedom of thought, conscience and religion.”

8. Thus, under existing equality law, schools may discriminate in respect of pupils:  Equal Status Act 2000, section 7(3) – not discrimination:  “(c) where the establishment is a school providing primary or post-primary education to students and the objective of the school is to provide education in an environment which promotes certain religious values, it admits persons of a particular religious denomination in preference to others or it refuses to admit as a student a person who is not of that denomination and, in the case of a refusal, it is proved that the refusal is essential to maintain the ethos of the school…”

9.  Section 37(1), Employment Equality Act 1998  “A religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person.. if  (a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or  (b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.”

10.  It enshrines in law the Eileen Flynn case  Flynn v. Power [1985] ILRM 336  Lack of clarity on definition of ‘religious ethos’  Greater scope for potential discrimination  It creates a ‘chilling effect’ for teachers  Despite lack of litigation – effect very real  Strong campaign for repeal/amendment  Teachers’ unions, civil liberties & LBGT groups  Programme for Government 2011

11.  Employment Equality (Amendment) (No 2) Bill 2013, private members’ bill supported by Gov  Second stage, Seanad, 13 March 2013  Committee stage, 9 & 16 April 2014  April 2014 – IHREC consultation paper  Other jurisdictions have similar provisions  EU law & constitutional considerations  Legal advice: amendment preferable to deletion  Gov amendments now promised  Committee stage to resume in Seanad

12.  Many critiques of denominational structures  Eg IHRC, Religion and Education: a Human Rights Perspective (2011):  The State “should ensure that there is a diversity of provision of school type within educational catchment areas throughout the State which reflects the diversity of religious and non-religious convictions represented in the State”.

13.  April 2012, Report of Forum  Recommendations around Transformation/Divestment from Catholic to multi-denominational patronage  June 2012, Minister’s response  December 2012, Surveys of 5 areas  (Arklow, Castlebar, Tramore, Trim, Whitehall)  April 2013, Survey of 38 further areas  September 2014, first divestment –  Portobello ETNS.org, Dublin 8