conservatism
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IRELAND: ‘The referendums failed because the government overlooked the need to engage affected communities’
CIVICUS speaks with Sinéad Murray, Communications, Membership and Information Officer at Treoir, about Ireland’s recent unsuccessful Family and Care Referendums.Set up in 1976, Treoir, is a federation of Irish civil society organisations (CSOs) that promote the rights and best interests of unmarried parents and their children in order to achieve legal and societal equality.
What were the recent referendums held in Ireland about, and why were they important?
The two referendums held on 8 March were aimed at changing the constitution, which was drafted in 1937 and heavily influenced by traditional social values regarding women, religion and family. Several referendums were held in the past few years to remove outdated concepts and replace them with more inclusive ones that reflect the modernisation of our society, and these two referendums were part of this trend.
Although 40 per cent of families in Ireland are not based on marriage, article 41 of the Constitution of Ireland defines family on the basis of marriage. It only offers full protections to families based on traditional Catholic values, leaving out other family types, including single-parent or lone-parent families, cohabiting couples with or without children and kinship care families, in which the extended family steps in to take care of a child when a parent isn’t available.
The Family Amendment sought to rectify this by providing greater constitutional protections and societal recognition to diverse family types and promoting gender equality in caregiving roles. The Care Amendment aimed to address the sexist language in a clause of article 41 that is colloquially known as the ‘women’s place in the home’ clause. It implies that women who work outside the home are neglecting their domestic duties.
Although over time progress has been made in removing legislative discrimination against non-marital families, discrimination and inequality persist. For instance, lone-parent families face higher rates of poverty and housing insecurity. Further, since the 1930s, the government has regularly cited the constitutional definition of family to justify its discriminatory policies against non-marital families.
Feminists have long campaigned against these constitutional clauses because they have contributed to a considerable amount of legislation that prevented women’s equality. To add insult to injury, article 41 doesn’t even recognise rights or provide protection for women who stay in the home, including married women, lone mothers, stay-at-home mothers and female family carers.
Instead of simply deleting the article, the proposed amendment aimed to establish a positive, rights-based, gender-neutral, modern obligation of the state to protect caregiving, which is still overwhelmingly done by women.
Unfortunately, neither amendment was passed. Sixty-seven per cent of voters rejected the Family Amendment and 74 per cent voted against the Care Amendment.
What can the results be attributed to?
Opinion polls indicated that around 20 per cent of voters would reject the amendments regardless of how they were worded or what arguments they heard in the campaign. I would argue this corresponds roughly to the conservative and far-right electorate. Although conservative and traditional voters likely contributed to the referendums’ outcome, they were far from its primary drivers.
The numbers clearly indicate that many people who voted no in these two referendums had voted yes in the successful referendums on same-sex marriage in 2015 and on abortion in 2018. We need to understand why. Exit polls revealed the main reasons behind the two no votes in the 2024 referendums: a lack of clarity or information, a rushed process, lack of public consultation, a change perceived as insufficient and a general distrust in the current government.
It was the government’s misunderstanding of past referendum successes that led to the lack of clarity and structure in this process. They took the progressive vote for granted and underestimated the importance of the actual wording and public engagement.
The government published the wording for both referendums in December 2023, leaving a remarkably short window for campaign activities. It gave itself only six weeks to educate the public about the referendum process, communicate what was being voted on and try to persuade people to approve the changes. This limited timeframe posed logistical and political challenges.
Surprisingly, the chosen wording deviated from the terms proposed by the Citizen’s Assembly – a body made up of randomly selected citizens tasked with deliberating on key political issues – and the Joint Oireachtas (Ireland’s two houses in parliament) Committee on Gender Equality. The Care Referendum, for instance, focused solely on protecting family care instead of encompassing care provided in the broader community. The government’s commitment to ‘strive’ to support care rather than being mandated to do so also raised concerns. The formulation for the Family referendum included terms such as ‘durable relationships’ that were undefined and caused further confusion.
The rather abstract language used in both referendums also failed to afford enforceable new rights to the people concerned. If passed, the amendments wouldn’t have led to immediate, practical improvements in the lives of family carers or non-marital families – they would only have given them the right to challenge government decisions in court, which is a costly, intimidating and lengthy process. If the abortion referendum had only given women the right to go to court to demand an abortion, it likely wouldn’t have passed either.
This lack of tangible benefits left many uncertain whether to vote in favour, strengthening the campaign against and allowing for misinformation to proliferate, driven particularly by far-right groups.
Lack of trust in the current government exacerbated uncertainty. Public perceptions of the government’s failure to address pressing issues such as the housing and cost of living crises contributed to scepticism about the proposed changes.
In essence, results were driven by a combination of factors and underscored the importance of clear communication, grassroots engagement and addressing public concerns in referendum campaigns.
What should the government have learned from the successful referendums on abortion and same-sex marriage?
The most serious mistake was to think that because they were on the same line of progressive, inclusive and rights-expanding change, the new referendums would produce the same result as the referendums on abortion and same-sex marriage. The government shouldn’t have taken a yes vote for granted.
The government clearly misread the situation following the legalisation of same-sex marriage and abortion. In fact, the outcomes on abortion and same-sex marriage were far from preordained: they were the result of extensive, years-long grassroots mobilisation. Thousands of people advocated and protested for same-sex marriage and abortion for many years. Campaigns centred in the personal experiences of women and LGBTQI+ people affected by Ireland’s restrictive laws. Thousands of LGBTQI+ people spoke up about the stigma and discrimination they and their loved ones continued to face even after the passage of the 2011 civil partnership law. High profile cases such as that of Savita Halappanavar, who died after being refused an abortion, galvanised tens of thousands of women to speak out. The purpose was clear and the benefits of the referendums were obvious.
The promise of tangible rights also motivated supporters. They knew that even if removing the constitutional ban on abortion would not result in abortions becoming legal overnight, the government had published a clear legislative plan for if the referendum passed. During the referendum campaign, it also said it would push for the legalisation of abortion up to 12 weeks into pregnancy. This gave people certainty about what they were voting for. Similarly, it was clear that same-sex couples after the referendum campaign would have the same rights and responsibilities associated with marriage as opposite-sex couples.
The government didn’t see this, and so it overlooked the need to engage affected communities. Mobilising these groups is the most important asset in a referendum campaign and this was lost in the Family and Care referendums by the wording. The government also failed to clearly articulate the benefits of a yes vote. Unlike previous campaigns, the Family and Care referendums lacked a compelling narrative to rally public support. Legal or statistical arguments don’t persuade voters – personal stories do. But without the affected communities on board, those personal stories were hard to share. When those stories were shared, it was hard to definitely show how the referendum would adequately address the discrimination people faced. Lacking strong grassroots support, the Family and Care referendums faced great challenges in mobilising public opinion.
Who campaigned for, and who campaigned against the proposed changes?
Despite these shortcomings, most political parties supported a yes vote for both amendments, a common stance in Irish referendums. Although at Treoir we believed the government’s wording fell short, we still advocated for the change as we believed it was a step towards greater equality. Along with the National Women’s Council, One Family and Family Carers Ireland we led a campaign formed by 20 CSOs pushing for two yes votes.
Only two political parties – both of which hold a small number of seats in the Dáil, the lower house of parliament – opposed the changes: Aontú and Independent Ireland. Their campaign focused on the confusing wording chosen by the government, and used the regular slogan of campaigners against change in referendums – ‘Don't know? Vote no!’. For them, the referendum was a cover to push for increased immigration or the legalisation of polygamy in Ireland. They also argued that the ‘women’s place in the home’ clause was a positive element of the constitution and removing terms like ‘mother’ and ‘women’ was part of an agenda to eradicate the concept of biological women. This stance was also supported by the Catholic Bishops Conference and the Iona Institute, a Catholic pressure group.
Additionally, a third campaign emerged in support of a mixed vote, with the Free Legal Advice Centre among its supporters. They viewed the Family Amendment as an improvement but expressed reservations about the Care Amendment, arguing it would not provide any new rights and would perpetuate harmful stereotypes about women and people with disabilities. Equality Not Care, a group formed during the campaign, advocated for a no vote on the Care Amendment due to the impacts on people with disabilities, who would be considered as ‘subjects’ of care rather than independent rights-holders.
What’s next in the struggle for gender rights in Ireland?
The referendum campaign highlighted many of the issues that need to be urgently addressed, including the disproportionate number of lone-parent families, with 80 per cent of those headed by women facing poverty and housing insecurity. There’s also a need for a public childcare system, which would be essential for gender equality and hugely beneficial for lone parent families, along with real support for all types of carers, support for independent living for people with disabilities and family justice reform.
Following this defeat, another referendum on these articles is highly unlikely any time soon. However, changing the constitution wasn’t civil society’s primary focus to begin with. Moving forward, we should concentrate our efforts in pushing for legislative measures rather than constitutional amendments.
Civic space in Ireland is rated ‘open’ by theCIVICUS Monitor.
Get in touch with Treoir through itswebsite orFacebook andInstagram pages, follow@treoir on Twitter, and contact Sinéad throughLinkedIn.
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MAURITIUS: ‘LGBTQI+ people no longer need to live with the constant fear of being criminalised’
CIVICUS speaks with Najeeb Ahmad Fokeerbux, founder of the Young Queer Alliance (YQA), about the recent ruling by the Mauritius Supreme Court that declared the criminalisation of same-sex relations unconstitutional.The YQA is a non-governmental, youth-led and apolitical organisation registered in Mauritius that seeks to empower LGBTQI+ people and organisations, promote equality and lead change.
What is the situation of LGBTQI+ rights in Mauritius?
The human rights of LGBTQI+ people in Mauritius have progressed for one and a half decades now. The issue of healthcare for LGBTQI+ people was raised in the National Assembly as early as 1995 with regard to HIV/AIDS prevention, care and treatment. Since then, we’ve seen strides with HIV interventions targeted at LGBTQI+ people with change accelerating since 2008. The Employment Rights Act was passed in 2008, and would later become the 2019 Workers’ Rights Act. The Equal Opportunities Act was promulgated in 2012 and the Civil Status Act was amended in 2021, allowing for the registration of sex at birth of intersex persons as ‘undetermined’.
Yet local organisations, including the YQA, have faced a deadlock in addressing some pressing needs and aspirations of LGBTQI+ people such as the decriminalisation of homosexuality, the recognition of trans people and marriage equality, and it didn’t seem that legislative change would occur anytime soon.
What was the process leading to the decriminalisation of same-sex relations?
Conversations around litigation to challenge section 250(1) of the 1838 Criminal Code, which criminalised homosexuality, started as early as 2014. Numerous community consultations were held, but no queer people were ready yet to take on the challenge. It was a David versus Goliath situation.
Since YQA was founded in 2014, advocacy efforts started making progress with policymakers. Conversations gained new momentum in 2018 with the queer community winning support from international allied organisations. India decriminalised homosexuality in 2018, and with around 65 per cent of Mauritians being of Indian descent, this had a lot of impact. There didn’t seem to be a reason for Mauritius not to follow suit.
In September 2019, with the support of two law firms based in Mauritius and France, three friends and fellow activists and I approached the Supreme Court to seek constitutional redress on the basis that section 250 (1) of the Criminal Code violated our fundamental rights and freedoms and was therefore unconstitutional. Two additional cases followed: one by renowned gay artist Henry Coombes and another one by a young queer activist, Ridwaan Ah-Seek.
But change wasn’t going to happen if we only sought it in court. We had to accompany the legal process with efforts to change the hearts and minds of people. In other words, we had to fight two battles – one in court and another in society – at the same time, while ensuring that plaintiffs remained safe and didn’t lose the courage to continue a legal battle that would take years.
The YQA mobilised the community and funding from donors for this strategic and planned effort. In addition to our lawyers, we got support from the Canada Fund for Local Initiatives, the Equal Rights in Action Fund of the National Democratic Institute, the European Union delegation in Mauritius, Planet Romeo Foundation and The Other Foundation. They supported a range of projects to empower LGBTQI+ ambassadors, provide media training, engage with both the public and private sectors and undertake research. We submitted the results of a research project we conducted in 2021 to the courts as evidence.
The four plaintiffs – two Hindus, one Christian and one Muslim – brought to court our stories as queer people from all parts of Mauritian society. Three of us being public officers, we were able to show the challenges we faced due to this abhorrent law being on the books. We played our part and our skilled lawyers played theirs. One thing led to another, and four years later, on 4 October 2023, LGBTQI+ people in Mauritius no longer needed to live with the constant fear of being criminalised.
What made Mauritius not follow the regressive path taken insome other African countries?
The Supreme Court showed independence, impartiality and sensitivity to human rights. The principle of separation of powers was upheld. Mauritius is seen as a respected political and economic player in the region. We hope we will be an example for other Commonwealth and African Union member states to follow.
However, we recognise that unfortunately, many African countries are plagued by dangerous imported extremist doctrines that are erasing the core meaning of being African. The situation is worse than that when the colonial masters enslaved us, for it is our own kin, people with our same skin colour and the same African roots, who are dehumanising and un-Africanising us, while it is them who are bringing in an imported ideology – homophobia.
What’s next on the LGBTQI+ agenda in Mauritius?
Two issues that need to be tackled are the recognition of trans people and marriage equality. By preparing ourselves and providing there are adequate resources, the YQA will be able to help us overcome these two injustices.
This ruling paved the way for greater inclusion of LGBTQI+ people in Mauritius. But although same-sex private sexual relationships among consenting adults have been decriminalised, it remains crucial to educate queer people and people in general about the ruling and its implications for human freedom, equality, dignity and rights.
What international support do you receive, and what further support do you need?
The YQA works in networks with LGBTQI+ activists and organisations in the region and beyond. This is what makes our queer movement a global one. And it contributes to learning, sharing and lifting each other’s spirits.
Achieving the recognition of trans people and marriage equality will require institutional support, strengthened allyship, the participation of the private sector and sustained funding. At the same time, Mauritius is set on the path to becoming an upper-middle-income or high-income economy, making organisations such as the YQA ineligible for donor aid. Donors have to understand that the overall economic situation does not benefit LGBTQI+ people equally and should therefore continue providing targeted support, capacity development and funding to LGBTQI+-led organisations to continue our work.
Civic space in Mauritius is rated ‘narrowed’ by theCIVICUS Monitor.
Get in touch with the Young Queer Alliance through itswebpage orFacebook page.
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TURKS AND CAICOS ISLANDS: ‘Advancing LGBTQI+ rights requires advocacy, awareness-raising and a concerted effort to foster a culture of inclusion’
CIVICUS speaks with Tim Prudhoe, a lawyer with Stanbrook Prudhoe, about a legal challenge brought against discriminatory legislation against LGBTQI+ people and the struggle for equal rights of same-sex married partners in Turks and Caicos Islands (TCI).
Stanbrook Prudhoe is a law firm specialising in complex and cross-border cases in the Caribbean region.
What legal action are you involved in?
Since 2021 we have been representing Tim Haymon, a US citizen, and Richard Sankar, a Turks and Caicos Islander, in legal proceedings against the TCI government. The case is now up on appeal after findings of breaches of rights protected under the TCI constitution. The couple married in Florida in 2020, but Tim has been denied an exemption from the need to obtain a work permit, although that exemption is available to the spouse of a Turks and Caicos Islander. There is no definition of ‘spouse’ under the relevant immigration legislation and the definition used in the letter of refusal referenced the marriage legislation. The Marriage Ordinance treats same-sex marriages as void.
The refusal of the spousal exemption was by the Director of Immigration. Tim and Richard brought proceedings against him alleging breaches of the protected rights of equality before the Law, the right to family and private life and freedom from discrimination on the basis of sexual orientation.
The trial took place in November 2022 and the decision was delivered in March 2024. The TCI Supreme Court upheld two of our three claims, finding violations of the constitutional rights to private and family life and to protection against discrimination on the basis of sexual orientation. However, the court did not uphold the claim of equality before the law. That is the subject of an appeal that will be heard on 23 and 24 October.
The government has also appealed. Although it relied on no evidence during the trial, it now disputes any findings of constitutional breach. The government’s legal team remains headed by Ivan Hare KC of Blackstone Chambers in London, UK. Colours Caribbean, an LGBTQI+ rights organisation, successfully applied to join the appeal as an interested party.
Before the claims were first started, Tim and Richard offered to abandon their legal action if the government enacted civil partnership legislation giving same-sex couples the same rights and benefits as opposite-sex couples. Unfortunately, this offer was ignored. Our appeal document itself repeats that offer. When we first made that offer, we even provided the government with a copy of the Cayman Islands legislation recognising civil partnerships as a precedent they could work from. But, again, no response.
The Supreme Court’s decision was a significant step forward for LGBTQI+ rights in TCI. Former TCI Premier Michael Misick criticised it publicly, calling for Richard to have his Turks and Caicos Islander status revoked. If successful, the government’s appeal would be a major setback for equality. Either way, the outcome will have broader implications for LGBTQI+ rights across the Caribbean.
What’s the status of LGBTQI+ rights in TCI, and what difference have recent Privy Council rulings made?
The status of LGBTQI+ rights in TCI has a long way to go still. The government’s reliance on traditional moral standards and recent rulings on marriage issues by the UK Privy Council, the final court of appeal for TCI and other British Overseas Territories, are significant barriers to the advancement of LGBTQI+ rights.
Recent Privy Council rulings on same-sex marriage in Bermuda and the Cayman Islands have significantly influenced the discourse on LGBTQI+ rights in TCI. The combined appeal on the right to marry in the Ferguson case in Bermuda and the Bodden Bush case in the Cayman Islands is particularly noteworthy.
In Bermuda, same-sex couples had the right to marry for a period before the law was changed. Marriages already performed remained valid, but no new marriages could be celebrated – a situation that led to a case being taken to the European Court of Human Rights on the grounds that those left out were in practical effect facing discrimination. The Privy Council ruled that marriage was a unique legal institution and those jurisdictions could decide the scope of marriage without violating their constitutions.
This gave us an insight into the Privy Council’s position. However, we distinguished our case in TCI by focusing on recognition of equivalent legal rights rather than the establishment of a right to marry. The government argued we were trying to introduce the right to marry via the back door, because of the attempt to invoke the spousal exemption from immigration restrictions.
The Privy Council’s decision, which confirmed that jurisdictions can define marriage, wasn’t that surprising. TCI’s constitution, like Cayman’s, includes a preamble about TCI being a God-fearing nation. The government’s arguments in TCI appeal rely heavily on this. This is pretty odd, in light of the fact that it failed to present any actual evidence at trial.
Despite these challenges, the LGBTQI+ community and its advocates continue to press for equality and recognition, reflecting a wider struggle in many small jurisdictions.
What are the challenges for LGBTQI+ activism in TCI?
A major challenge is stigma, which is keenly felt in a place as small as TCI. Despite the presence of people who identify as LGBTQI+, there isn’t a well-developed community infrastructure such as gay pubs or clubs. There’s been a slight improvement in visibility following recent decisions, but it hasn’t yet become a significant movement. For example, there’s now anticipation for an upcoming gay pride event, a notable first for the TCI, albeit modest, as a boat trip during Gay Pride Week in June.
Living as an LGBTQI+ person in TCI often means necessarily leading a discreet life. While there are both locals and expatriates in same-sex relationships, such partnerships are not flaunted or embraced as a popular lifestyle choice. Rather, they tend to remain private, perhaps implicitly acknowledged by the community but not openly discussed.
There’s a complex interplay between legal processes and government responses. Despite government appeals against decisions concerning LGBTQI+ rights, such actions are influenced by political dynamics, particularly when elections are approaching. The electorate consists solely of Turks and Caicos Islanders and has strong opinions on issues such as same-sex marriage, which politicians must navigate with caution.
Constitutional protections theoretically guard against discrimination, but practical enforcement is uncertain. While legal recourse exists in principle, instances of intimidation and hostility, such as aggressive media commentary or social media harassment, deter people from pursuing anti-discrimination cases.
In essence, while there is a legal framework to combat discrimination, the challenges of social stigma, political sensitivities and intimidation hinder progress towards full LGBTQI+ equality in TCI.
What role has civil society played in the case?
We’ve worked with the Pride group that’s recently emerged. Although not gay myself, I was pleased to attend their meeting to have a chance to explain relevant parts of the legal challenge. I have been a friend of Richard for many years, and more recently Tim as well.
The only outside group involved was Colours Caribbean, whose involvement in the Cayman case I had been aware of for some time. When they heard of our legal victory, despite ongoing appeals from both sides, they approached us to join the proceedings. We don’t control their involvement, but the fact that we haven’t objected to it apparently influenced the court’s decision to give them a speaking role in the October appeal.
What are your expectations?
I expect that Tim and Richard will win their appeal on the failure by the judge to deal with the equality before the law claim. Whatever the outcome of the government’s appeal, I expect that the British government will have to exercise its power of override, as it did in the Cayman Islands context, to introduce civil partnership recognition legislation. In TCI, the Governor, a British-appointed official, has a constitutional power to legislate in the best interests of the jurisdiction. For example, previous governors have forced through legislation decriminalising same-sex sexual activity – a move still resisted in other parts of the Caribbean.
I think our success will primarily relate to the anti-discrimination aspect of the lower court judge’s decision. Right now, we are in a perplexing situation: the judge has agreed with our argument that Richard and Tim’s constitutionally protected rights are being violated but he stopped short of implementing the necessary remedial measures.
This creates a glaring inconsistency: existing violations are acknowledged but no remedy is provided. So if another same-sex couple were to seek spouse treatment, they would be denied the exemption, even though the Court has recognised this as a breach of constitutional rights. It is unlikely that the Court of Appeal will accept this situation. We argue that the judge made a fundamental mistake in finding breaches but not proposing remedies. Moreover, the judge’s criticism of our approach fails to recognise alternative ways of remedying the situation, such as amending immigration laws to include same-sex couples in the eligibility criteria for spousal exemptions.
The delay in the judge’s decision, despite mounting pressure, suggests a rushed outcome in the end. It appears that in his haste, the judge failed to thoroughly explore possible solutions to the violations identified. I therefore anticipate that the Court of Appeal will scrutinise the lower court’s handling of the case and consider remedies in line with constitutional obligations.
What are the next steps?
The trajectory of progress depends heavily on the outcome of the Court of Appeal hearing. It’s unlikely a decision will be made immediately after the hearing, given the complexity and scale of the case. As we have argued that the lower court judge erred in his decision, the matter could be escalated to the Privy Council for constitutional review.
However, in terms of broader progress and the continued advancement of LGBTQI+ rights, increased visibility and public awareness are paramount. The greater the exposure and discussion surrounding the case, particularly at the appellate level, the more likely it is that attitudes will evolve positively. Increased awareness fosters confidence within the LGBTQI+ community, encouraging people to live more openly and authentically.
Historically, many people who identify as LGBTQI+ have felt compelled to leave TCI and seek more accepting environments abroad, primarily in cities in the UK or the USA. This trend underscores the prevailing reluctance to accept LGBTQI+ identities in the local context. It will undoubtedly take time to overcome this suspicion and foster a culture of acceptance, but progress is evident and ongoing.
It is my hope as a legal practitioner that church groups engage in this discussion in a constructive and inclusive way, avoiding regressive interpretations of religious doctrine. Such interpretations, rooted in outdated beliefs, only serve to hinder progress. It’s worth noting that TCI, essentially a tourist destination, relies heavily on its reputation as a progressive and welcoming place. Failure to address LGBTQI+ rights risks tarnishing this image, with negative implications for tourism and therefore for economic prospects.
Advancing LGBTQI+ rights in the TCI requires ongoing advocacy, awareness-raising and a concerted effort to foster a culture of inclusion and acceptance within the local community and wider society.
Get in touch with Stanbrook Prudhoe through itswebsite and connect with Tim Prudhoe onLinkedin.
