We passed the Marriage Referendum and we have a new Government, but not everything has improved for lesbian and gay couples, says Fergus Courtney of Pension Equality

Despite the passing of the referendum at least one major inequality has been allowed to remain, the denial of which is being used against a group of lesbian, gay and bisexual (LGB) people by the administration.

These are LGB people, retired or still serving employees, who are being refused the opportunity to leave a pension to their same-sex widow or widower. They have never had the opportunity to benefit their spouses, unlike opposite-sex couples who have such a right, and despite the referendum the Government and some other employers are refusing to allow such pensions.

It is clear that the commitment to equality was expressed by all political parties during the campaign, and endorsed by the voters, has still not percolated to all levels of the Administration, and Government Departments and some private sector employers are still quite willing to discriminate against LGB people.

This state of affairs is not widely known, and that is why Pension Equality has been founded to draw attention to the injustice and to seek its remedy.

During the last Government term, Pension Equality sought to raise the issue of pension discrimination against LGB people with members of the Oireachtas. In the last Seanad David Norris spoke passionately about this inequality, and called on Frances Fitzgerald, the Minister for Justice and Equality (she still is) to reform it. Senator Jim Walsh (a man of conservative views but who recognised injustice when he saw it) spoke in support. Senators Ivana Bacik and Katherine Zappone, who is now Minister for Children and Youth Affairs, remained silent.

In the Dáil, deputies Jim Buttimer, Jim Lyons and Eoghan Murphy asked Parliamentary Questions and were stonewalled by Minister Brendan Howlin, who merely parroted the civil service line and rubber stamped his officials’ decisions.

Pension Equality hopes that things will be different in the present Oireachtas where the Government and civil service are no longer in a position to do whatever they like without any check.

For a welcome start Jim O’Callaghan, TD, the influential Fianna Fáil spokesman on Justice and Equality, has told Pension Equality that he supports giving LGB people “who have never been given an opportunity to leave a survivor’s pension to their widow/widower an opportunity to do so following the granting of Marriage Equality by the people”.

The ball is now at the feet of the new Minister for Public Expenditure and Reform, Pascal Donohoe, who it is to be hoped will show a different attitude to LGB people than his predecessor, Brendan Howlin. In the case of civil and public service pensions he can end this last remaining vestige of discrimination at the stroke of a pen because it is purely an administrative decision and no new legislation is required. It does, however, require him to override the entrenched opposition of his civil service mandarins who don’t like change.
The cost will not be great because the group of people affected is small, being mainly (though not exclusively) retired LGB people and they would have to pay the same contributions as everyone else in the relevant pension scheme. Older LGB people are also the people who have suffered the longest from discrimination by the State, from criminalisation and prejudice in previous decades to the refusal of survivor pensions in 2016.

The report of the UN Working Group in its Periodic Review of Human Rights in Ireland, which took place in May, 2016, called on Ireland to:
“continue legislating so that there is no discrimination against LGBTI persons in the field of pensions. (Proposed by Spain)”.

While our politicians are still congratulating themselves on the referendum, our nearest neighbours have got on with the job of abolishing an injustice which our Administration still prefers to ignore. The British government has recognised that many LGB people in the past would not have chosen a survivor spouse pension at a time when they were not allowed to have a same sex spouse and indeed were prohibited from marrying.

So, showing a more enlightened attitude than our last Government, the British government have now changed the rules so as to allow their LGB employees and pensioners an opportunity to leave a survivor’s pension to their same sex spouse. Our Government must do the same.

It is essential that the Irish organisations who campaigned for LGBT rights don’t just sit back and allow feelings of gratitude to the Government, or a vague fear of ‘rocking the boat’, to deter them from pressing for the pension changes that are required. In this regard Pension Equality believes GLEN could have an important role to play. The discrimination is contrary to the EU Equality Directive, which is binding on Ireland  although not for the first time the Government seems willing to ignore its EU obligations until it is forced to act.

One person who has challenged the refusal of a survivor’s pension is David Parris, a lecturer in Trinity College, Dublin. He has been forced to bring his claim to the European Court of Justice and has had to undergo the heavy burden of legal expenses in order to seek a remedy against an injustice which should be obvious to any fair-minded person – though not to our rulers, apparently.

Pension Equality is seeking:

1. That LGB employees and pensioners who were never given the opportunity to leave a survivor pension to their same-sex spouse be given a once-off opportunity to do so now. (The option might remain open for a fixed period and then close, as has been done in other countries such as the US).

2. The amendment of Section 81 of the Pensions Act 1990 which prevents LGB people who are retired more than a year from challenging the refusal of a pension in the Equality Tribunals, in line with the requirements of European Law. This prohibition is particularly oppressive on LGB people because someone who retired before marriage equality was introduced and now wishes to claim it is debarred from doing so.
In the May 2015 issue of GCN, Billy Hannigan, Deputy General Secretary of the PSEU union, exposed this added injustice to LGBTI people.
Pension Equality urges everyone who is opposed to unfairness to support our campaign.

Remember, some day everyone will reach pension age and will want to have the same right to make provision for a wife or husband that is enjoyed by everybody else.

To join Pension Equality (there is no subscription) email: [email protected]

Fergus Courtney is Hon. Secretary of Pension Equality