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Public Inquiry
Interested in maladministration. Estd. 2005

offsite link Console: Just the latest in long line of charity scandals

offsite link Irish Examiner compares water protesters with Provisional IRA Anthony

offsite link RTE: A mouthpiece for a corrupt regime? Anthony

offsite link Newstalk responds to complaint Anthony

offsite link Newstalk: Contempt for listeners and broadcasting regulations Anthony

Public Inquiry >>

The Saker
A bird's eye view of the vineyard

offsite link The meaning of Brexit ? the bigger picture, CrossTalk Tue Jun 28, 2016 04:11 | Scott
  Jun 26, 2016 The meaning of Brexit ? the bigger picture. UK voters have rejected the EU and, importantly, they have rejected the political status quo. Today, sovereignty and

offsite link International Military Review ? Syria & Iraq, June 27, 2016 Mon Jun 27, 2016 18:06 | The Saker
https://southfront.org/international-...

offsite link Now Britain faces ?Coloured revolution? as Soros moves to stop Brexit Mon Jun 27, 2016 16:55 | The Saker
By Nick Griffin The people of Britain are about to become the next victims of the ?Coloured Revolution? tactics used by Washington and Brussels against democratically elected governments from Serbia

offsite link After BREXIT: Russia Ukraine Finland Poland SITREP, by Scott Humor Mon Jun 27, 2016 04:55 | Scott
Michael McFaul, the Washington Post and all others who declared Brexit to be a Putin’s victory, still don’t understand that Putin has won long before June 23rd referendum. The fact

offsite link Cracks in the EU Sun Jun 26, 2016 23:18 | The Saker
by Kakaouskia Greetings to the Saker community and readers. So, the UK people, contrary to the ?script? that wanted a narrow Remain win have elected to leave the European Union.

The Saker >>

Human Rights in Ireland
www.humanrights.ie

offsite link The UN and the Eighth Amendment Thu Jun 23, 2016 09:46 | admin

offsite link Call for Papers: State Accountability for Vulnerability Mon Jun 20, 2016 12:29 | admin

offsite link UK at the CESCR: A Focus on Benefit Sanctions Thu Jun 16, 2016 08:17 | admin

offsite link Irish Journal for European Law: CALL FOR PAPERS 2016 Mon Jun 13, 2016 10:48 | Aoife O'Donoghue

offsite link Amanda Jane Mellet v. Ireland ? The Key Points Thu Jun 09, 2016 18:54 | Máiréad Enright

Human Rights in Ireland >>

Cedar Lounge
For lefties too stubborn to quit

offsite link Brexit and the Good Friday Agreement. 07:06 Tue Jun 28, 2016 | WorldbyStorm

offsite link A ?multi-national? compromise? 17:07 Mon Jun 27, 2016 | WorldbyStorm

offsite link This England: 2016 17:03 Mon Jun 27, 2016 | WorldbyStorm

offsite link After, or is it before, Brexit? 12:31 Mon Jun 27, 2016 | WorldbyStorm

offsite link Scotland?s Exit? 09:53 Mon Jun 27, 2016 | WorldbyStorm

Cedar Lounge >>

admin - Thu Jun 23, 2016 09:46
This letter is cross-posted from today’s Irish Times. Sir, ? The UN Human Rights Committee has found that Amanda Mellet?s right to be free from cruel, inhuman or degrading treatment, her right to privacy, and her right to equality before the law were violated because Irish law did not allow her to access abortion in […]

This letter is cross-posted from today’s Irish Times.

Sir, ? The UN Human Rights Committee has found that Amanda Mellet?s right to be free from cruel, inhuman or degrading treatment, her right to privacy, and her right to equality before the law were violated because Irish law did not allow her to access abortion in Ireland in a case of fatal foetal abnormality.

It has held that Ireland must amend its abortion law, including the Constitution if necessary, to ensure compliance with the International Covenant on Civil and Political Rights (ICCPR), including ensuring effective, timely and accessible procedures for pregnancy termination in cases of fatal foetal abnormality in Ireland.

The Taoiseach and others have noted that the findings of this committee are not ?binding?.

Here are six legal and policy reasons why Ireland must take good faith steps to implement the findings and comply with its international obligations:

1) In 1989, Ireland voluntarily ratified the ICCPR. Under international law, it must now comply with the treaty in good faith. It cannot invoke its Constitution, or any other domestic law as rationale for failure to comply (Articles 26 and 27 of the Vienna Convention on the Law of Treaties).

2. Although the UN Human Rights Committee does not have the status of an international court, Ireland has accepted its competence to hear individual complaints and to give authoritative interpretations of the ICCPR. Its members are impartial and independent. Ireland recognised the committee?s competence to issue determinative interpretations of the convention when it ratified the ICCPR and its optional protocol.

3) When Ireland subjected Ms Mellet to cruel, inhuman or degrading treatment, it committed an internationally wrongful act. International law, including the ICCPR, requires it to remedy this wrongful act, provide reparations and guarantee non-repetition. Ireland cannot invoke provisions of its domestic law as rationale for a failure to do so (Article 2 of the International Covenant on Civil and Political Rights; Articles 1, 3, 30-32 of the Principles on Responsibility of States for Internationally Wrongful Acts).

4. It is immaterial to Ireland?s responsibility under international law that the relevant treaties have not been incorporated into domestic law or that as such the decisions of the committee are not necessarily enforceable in Irish courts. Under international law a lack of enforcement options under domestic law, or the fact that under domestic law the committee?s decision is not binding, can never be used as justification for non-compliance.

5) If Ireland does not remedy the harm suffered by Ms Mellet and guarantee non-repetition it will place Irish medical professionals in profoundly difficult ethical situations and place them at risk of complicity in cruel, inhuman or degrading treatment.

6) If Ireland does not remedy the harm suffered and guarantee non-repetition it will leave itself open to repeated future litigation against the State before the UN committee or other international bodies, including the European Court of Human Rights.Until the legal framework is brought into line with Ireland?s international legal obligations, the likelihood is that women will continue to engage with international legal institutions to seek recognition of rights violations, remedy, and guarantees of non-repetition.

? Yours, etc,

Prof. Fiona de Londras, University of Birmingham Law School
Mairead Enright, Lecturer in Law, University of Kent
Prof. Christine Bell, University of Edinburgh Law School
Prof. Fionnuala ni Aolain, University of Ulster Transitional Justice Institute
Prof. Siobhan Wills, University of Ulster Transitional Justice Institute
Prof. Aoife Nolan, University of Nottingham Law School
Prof. Laurence O. Gostin, Georgetown Law School
Prof. Oscar Cabrera, Georgetown Law School
Lilian Abriniskas, Women and Health in Uruguay
Mónica Roa, Colombian Attorney, Global Advocate, Expert on Reproductive Rights.
Sharon Pia Hickey, Teaching Fellow, Global Gender Justice Clinic, Cornell law School
Ailbhe Smyth, Coalition to Repeal the 8th
Niamh Allen, Head of Membership and Development, National Women?s Council of Ireland
Helen Guinane, Parents for Choice
Senator Ivana Bacik
Professor Tamara Hervey, School of Law, Sheffield University
Dr. Rosa Freedman, Senior Lecturer in Law, University of Birmingham
Dr. Aoife O?Donoghue, Senior Lecturer in Law, Durham University
Dr. Paul O?Connell, Reader in Law, SOAS London
Dr. Rose Parfitt, Lecturer in Law, University of Kent
Dr. Eilionoir Flynn, Senior Lecturer in Law, NUI Galway
Rumyana Grozdanova, Lecturer in Law, University of Liverpool
Dr. Anne-Marie Brennan, Lecturer in Law, University of Liverpool
Dr. Illan rua Wall, Associate Professor in Law, Warwick University
Dr. John Reynolds, Lecturer in Law, NUI Maynooth
Dr. Bríd Ní Ghráinne, Lecturer in Law, University of Sheffield
Dr. Sorcha McLeod, Lecturer in Law, University of Sheffield
Dr. Michelle Farrell, Senior Lecturer in Law, University of Liverpool
Maeve O?Rourke, Barrister
Dr. Natasa Mavronicola, Lecturer in Law, Queen?s University Belfast
Ntina Tzouvala, Lecturer in Law, Durham University
Dr. Liam Thornton, Lecturer in Law, UCD
Dr. Stefanie Khoury, Postdoctoral Research Associate, University of Liverpool
Dr. Kathryn McNeilly, Lecturer in Law, Queen?s University Belfast
Dr. Catherine O?Rourke, Senior Lecturer, Transitional Justice Institute, University of Ulster
Dr. Alex Schwartz, Lecturer, Queen?s University Belfast
Dr. Sheelagh McGuinness, Senior Lecturer in Law, Bristol University
Dr. Vicky Conway, Lecturer in Law, Dublin City University
Prof. David Whyte, University of Liverpool
Dr. Ruth Fletcher, Senior Lecturer in Law, Queen Mary University of London
Jennifer Schweppe, Lecturer in Law, University of Limerick
Professor Rosemary Hunter, Queen Mary University of London
Dr. Amel Alghrani, Lecturer in Law, University of Liverpool
Dr. Anne Neylon, Lecturer in Law, University of Liverpool
Dr. Katherine O?Donnell, Associate Professor in Philosophy, UCD
Colin Murray, Senior Lecturer in Law, Newcastle University
Dr. Sinead Ring, Lecturer in Law, University of Kent
Dr. Elizabeth Campbell, Senior Lecturer in Law, University of Edinburgh
Dr. Fergus Ryan, Lecturer in Law, NUI Maynooth
Dr. Louise Crowley, Senior Lecturer in Law, UCC
Dr. Catherine O?Sullivan, Senior Lecturer in Law, UCC
Dr. Sara Ramshaw, Senior Lecturer in Law, Exeter University
Dr. Alan Greene, Lecturer in Law, Durham Law School
Jane Rooney, PhD Candidate in Law, Durham University
Eilish Rooney, Senior Lecturer, Transitional Justice Institute, University of Ulster
Muireann Meehan Speed, PhD Candidate, Oxford University
Dr. Sorcha Ui Chonnachtaigh, Lecturer in Ethics, Keele University
Dr. Edel Quirke, PhD in Law
Eileen Crowley, White & Case LLP
Wendy Lyon, Solicitor
Orla Ryan, Barrister
Kate Butler, Barrister
Dr. Joan McCarthy, Lecturer in Healthcare Ethics, UCC
Goretti Horgan, Lecturer in Social Policy, University of Ulster
Suzanne Guilloud, Barrister
Claire Nevin, Human Rights and Social Affairs Adviser for the EU Delegation to the Council of Europe (personal capacity)

admin - Mon Jun 20, 2016 12:29
On September 9th 2016, the Socio-Legal Research Centre, Dublin City University will host its biennial law and society conference. Following on from the success our inaugural conference on Judges, Law and the Irish Constitution in 2014, the theme of this year’s conference is State Accountability for Vulnerability. The purpose of the conference is to analyse […]

On September 9th 2016, the Socio-Legal Research Centre, Dublin City University will host its biennial law and society conference. Following on from the success our inaugural conference on Judges, Law and the Irish Constitution in 2014, the theme of this year’s conference is State Accountability for Vulnerability. The purpose of the conference is to analyse the response of the Irish State to present and historic vulnerability caused or exacerbated by public policy. The conference will have two streams, one which examines the detail of vulnerability in defined areas. A second examines the various accountability mechanisms which have or could be used to acknowledge the State?s role in creating and/or contributing to this vulnerability and to provide remedies to victims/survivors.

The conference will bring together academics, practitioners; judges; politicians; representatives from NGOs and other civil society organisations and postgraduate students. We welcome submissions from any discipline on issues relevant to the conference theme. Papers should address aspects of the theme in at least one of the following categories:

Historic institutional abuse;
Disability;
Ethnic minority groups;
Asylum Seekers, migration and direct provision;
Vulnerability caused by austerity;
Medicalised vulnerability;
Vulnerability arising from gender;
Vulnerability while in the care of the State;
Vulnerability and crime;
Investigative mechanisms for accountability;
Accountability mechanisms;
Strategic litigation;
Reparative schemes.
Abstracts for papers should be submitted to the conference convenors at the following email address dculawconference@gmail.com

The deadline for submission is Friday June 24th 2016.

Abstracts should be a maximum of 300 words and should fit within the conference theme. While practice-oriented papers are encouraged, they should engage with more general historical, socio-legal or theoretical dimensions. As well as considering the academic merit of the abstracts, the assessors will also consider whether the proposed paper fits with the general theme and specific categories. We aim to notify applicants of our decisions by Thursday June 30th 2016.

A selection of papers from our previous conference Judges, Politics and the Irish Constitution were compiled in an edited collection and published by Manchester University Press. This book will be officially launched on the evening of the conference. We hope to produce a similar peer-reviewed edited collection from the papers presented at this conference.

Plenary Speakers:

Prof Nina A. Kohn, Syracuse University College of Law

Prof Titti Mattsson, Lund University

Lord Lester of Herne Hill, QC

Noeline Blackwell, Dublin Rape Crisis Centre

Conference Convenors

Dr James Gallen, Socio-Legal Research Centre, DCU

Dr Tanya Ní Mhuirthile, Socio-Legal Research Centre, DCU

Key Dates

24/06/2016 Submit abstract
30/06/2016 Notification of assessors
09/09/2016 Conference

admin - Thu Jun 16, 2016 08:17
Aoife O'Donoghue - Mon Jun 13, 2016 10:48
The Irish Society for European Law recently re-launched the Irish Journal of European Law as an e-journal. The Journal, which has been published since 1992, is a leading international journal on European law edited by Irish scholars and practitioners. The 2014 and 2015 volumes are available on the Society?s website at https://www.isel.ie/journal. The Journal – […]

The Irish Society for European Law recently re-launched the Irish Journal of European Law as an e-journal. The Journal, which has been published since 1992, is a leading international journal on European law edited by Irish scholars and practitioners. The 2014 and 2015 volumes are available on the Society?s website at https://www.isel.ie/journal?utm_source=rss&utm_medium=rss.

The Journal – which is blind peer-reviewed – is now issuing a call for original papers for its 2016 volume. Long articles (indicative length 8,000 – 12,000 words) and shorter articles (3,000-4,000 words), and analyses of any length of recent developments are invited.

While submissions on Irish-European legal issues are of special interest, the Journal welcomes submissions on all areas of European law. In addition to the more traditional form of academic article, comment and opinion pieces on European-Irish affairs with a legal dimension will also be considered. ??Submissions are to be sent to ijel.submissions@gmail.com by Monday 15 August 2016 in WORD format, size 12 font, single spaced. The referencing style guide is OSCOLA Ireland, which is available online at:

http://www.legalcitation.ie/page5/files/OSCOLA%20Ireland%202011.pdf?utm_sourc...

Irish Journal of European Law

https://www.isel.ie/journal?utm_source=rss&utm_medium=rss

Co-Editors: Anna-Louise Hinds & Diarmuid Rossa Phelan; Members of the Editorial Board: Una Butler, Karole Cuddihy, Catherine Donnelly, David Fennelly, Sonja Heppner, Anna Hickey, Clíodhna Murphy

Máiréad Enright - Thu Jun 09, 2016 18:54
As readers will know by now, the UN Human Rights Committee today held that Ireland’s abortion law violated Amanda Mellet’s human rights under the ICCPR. The foetus she was carrying was diagnosed with a fatal foetal abnormality. Irish law criminalises abortion except as a last resort to save the pregnant woman’s life, and  thus compelled her […]

As readers will know by now, the UN Human Rights Committee today held that Ireland’s abortion law violated Amanda Mellet’s human rights under the ICCPR. The foetus she was carrying was diagnosed with a fatal foetal abnormality. Irish law criminalises abortion except as a last resort to save the pregnant woman’s life, and  thus compelled her to travel to Liverpool for an abortion. This is the first time that any international court or human rights body has found that the criminalisation of abortion is in itself a violation of women’s human rights. The Committee held that the Irish law:

  • Violated her right to freedom from inhuman and degrading treatment because it exacerbated the anguish associated with a pregnancy affected by fatal foetal abnormality. By compelling her to travel, the law deprived her of material and emotional support and appropriate care during and after her abortion. Criminalisation, in particular, compounded the shame and stigma associated with abortion in Ireland. The chilling effects of the Abortion Information Act, which meant that she could not obtain adequate information about terminating the pregnancy abroad,  were a source of further distress during the decision-making process. The process of travel also disrupted her recovery and worsened the grieving process: the Committee focused on her experience of receiving the foetus’ remains by courier, after she had returned to Ireland. The Committee here is providing us with resources to upset that prevailing public discourse which suggests that a pregnancy affected by fatal foetal abnormality is a tragedy; a trial which good mothers must bear with serene nobility. Committee Member Sarah Cleveland described this as “a stereotypical idea that a pregnant woman should let nature run its course, regardless of the suffering involved for her.” The Committee says that, even though the state did not directly inflict harm on Amanda Mellet, its neglect and abandonment of women in this situation  – who are left “isolated and defenceless” – moves situations like hers out of the realm of guiltless tragedy, and into that of state responsibility.
  • Violated her rights to privacy and bodily integrity. The Committee held that the Irish abortion law amounted to an unjustifiable interference with Amanda Mellet’s decision-making around her pregnancy. The State had argued, following the Irish constitutional test, that the interference was proportionate to its aim of balancing the rights of the pregnant woman against those of the foetus. The legality of the interference under domestic law is not important in this context. In addition, the Committee notes that because the law violates the right to be free from inhuman and degrading treatment, the restrictions it places on the right to privacy and bodily integrity could not be considered compatible with international law. Irish law, in its zeal to protect the foetus, has gone too far. In particular, the Committee emphasises that the treatment of Amanda Mellet under law was especially unreasonable because her pregnancy was not viable. Sarah Cleveland wrote: “Requiring the author to carry a fatally impaired pregnancy to term only underscores the extent to which the State party has prioritized (whether intentionally or unintentionally) the reproductive role of women as mothers, and exposes its claimed justification in this context as a reductio ad absurdum.”
  • Violated her right to freedom from discrimination. Amanda Mellet pointed out that women who choose to continue their pregnancies after a diagnosis of fatal foetal abnormality, and deliver a stillborn baby in Ireland receive state-funded care, while those who choose to travel for termination must bear the expense of doing so by themselves. Similarly-situated women are treated differently, with real financial and medical consequences. The Committee accepted that this difference in treatment amounted to discrimination in two ways.
    • First, the law discriminates against women as women. The State had made the facile argument that gender discrimination is confined to circumstances where men and women are similarly situated but men are better treated: by definition, they maintained, it cannot occur in respect of pregnancy because only women can become pregnant. Sarah Cleveland emphasises that the criminalisation of abortion is gender discrimination, because it affects a health service that only women need, and places no equivalent burden on men. In addition, the Committee reminds the state that gender stereotyping of women is in itself a form of gender discrimination.  In this respect, an interesting point from a feminist perspective is the Committee’s observation that the difference in treatment between those women who carry to term, and those who terminate the pregnancy is rooted in stereotypes of women as ‘reproductive instruments’. This point has been canvassed in Irish feminist scholarship for decades. Yad Ben Achour elaborated: “The prohibition of abortion in Ireland, owing to its binding effect, which is indirectly punitive and stigmatizing, targets women because they are women and puts them in a specific situation of vulnerability, which is discriminatory in relation to men. Under this legislation, the author has in effect been the victim of the sexist stereotype, whereby women?s pregnancy must, except where the life of the mother is at risk, continue, irrespective of the circumstances, as they are limited exclusively to their reproductive role as mothers. Reducing the author to a reproductive instrument constitutes discrimination and infringes her rights both to self-determination and to gender equality.”
    • Second the law failed to take into account the socio-economic effects of this differential treatment; in particular the costs of travel and seeking treatment abroad. Several Committee members maintained that the discrimination was not only between women who carried their pregnancies to term and those who travelled, but between those who could more easily afford to travel abroad for abortions and those who like Amanda Mellet, struggled to pay for the travel and the procedure. Sarah Cleveland noted that Article 26 ICCPR “prohibits the unequal access to reproductive health care for low-income and vulnerable populations that results from Ireland?s legal restrictions on reproductive health services.”
  • Violated her right to seek and receive information. Three Committee members held that the Abortion Information Act encourages medical personnel to withhold clear and timely information that women like Amanda Mellet could use to make decisions about their pregnancy and health, and that this in itself is a violation of rights under the ICCPR.

The Committee’s emphasis  on the woman’s entitlement to expect a certain level of compassion, care and attention from the state is very welcome. Amanda Mellet, Termination for Medical Reasons Ireland, their legal advisors and the Center for Reproductive Rights must be commended for their work in bringing this case to the Committee.The government is required to respond to the Committee’s decision within 180 days, outlining the concrete steps which it will take to remedy the identified human rights abuses, and to prevent future similar harm to other women. The ruling will contribute significantly to the existing moral pressure on the government to hold a referendum on the Eighth Amendment (see further discussion by Fiona de Londras here). The Health Minister, Simon Harris, has indicated that he wants to see law reform in this area. However, the government of which he is a member has continued to drag its heels on the issue of abortion law reform.

This post is by Mairead Enright of Kent Law School – m.enright@kent.ac.uk

Fiona de Londras - Thu Jun 09, 2016 10:58
In a decision that will not have come as a surprise to those who are attentive to either international human rights law or abortion law in Ireland, the UN Human Rights Committee has found that the applicant, AM’s, rights under the International Covenant on Civil and Political Rights were violated by her having to travel for […]

In a decision that will not have come as a surprise to those who are attentive to either international human rights law or abortion law in Ireland, the UN Human Rights Committee has found that the applicant, AM’s, rights under the International Covenant on Civil and Political Rights were violated by her having to travel for an abortion in a situation of fatal foetal abnormality. The decision itself merits analysis, and the concurrence of Prof Sarah Cleveland is especially powerful. However, in this short post I want to assess the implications of this decision for constitutional politics in Ireland.

The government argued (as it has done before) that the Constitution reflects the will of the People on a question of moral significance and disagreement. This is summarized in para 4.2 of the opinion:

The State party asserts that article 40.3.3 of the Constitution represents the profound moral choices of the Irish people. Yet, at the same time, the Irish people have acknowledged the entitlement of citizens to travel to other jurisdictions for the purposes of obtaining terminations of pregnancy. The legislative framework guarantees the citizens? entitlement to information in relation to abortion services provided abroad. Thus, the constitutional and legislative framework reflects the nuanced and proportionate approach to the considered views of the Irish Electorate on the profound moral question of the extent to which the right to life of the foetus should be protected and balanced against the rights of the woman.

Whether one agrees with this representation of what the various referenda in question actually say about the will of the people (and this is subject to dispute), the key point here?and the Committee made this quite clear?is that lawfulness in domestic law does not excuse, nullify, or even mitigate unlawfulness in international law. In other words, from an international law perspective, the fact that this is a constitutional position does not make any real difference to its acceptability. A violation of international law still arises, and it is one that the state is required as a matter of international law to resolve.

Here, of course, is where the fact that this is a constitutional (rather than a merely legislative) position does pose a challenge. In Ireland, as is well known, the Constitution can only be formally amended by a referendum of the People. Thus, if the Constitution does prohibit abortion in cases of fatal foetal abnormalities, and if that puts Ireland in violation of its international obligations, then a referendum is the appropriate vehicle to resolving that dispute.

This is tricky. Governments cannot guarantee that the conflict between the constitutional standard and the international standard will be resolved; they cannot copper fasten the outcome of the referendum. Where a referendum to ensure compatibility with international standards is unsuccessful, the state remains in violation although it can at least claim that reasonable efforts to resolve that violation have been made. In the absence of a referendum, however, no such claim can be made.

In fact, a failure to hold a referendum both torpedoes the claimed justification for the incompatibility and reveals an unwillingness to resolve that incompatibility. That is, unless a referendum is held to ensure the availability of abortion in cases of fatal foetal abnormality the state can neither justifiably claim that it is the will of the people to maintain a ban on such abortions notwithstanding incompatibility with international human rights law, nor claim to be hand-tied in terms of resolving that incompatibility.

Thus, if it really is the case that the 8th Amendment prohibits such abortions a referendum is unavoidable from an international law perspective. That is not because international law can force a state to hold a referendum, but rather because (a) the incompatibility flows from a constitutional provision, and (b) the only means of constitutional change is by referendum.

It is worth noting that it is not at all clear that Article 40.3.3 really does require the criminalisation of abortion in cases of fatal foetal abnormality. We know that the provision does not require any activities that are futile, and that the foetal right to life is both to be balanced against the right to life of the pregnant woman and protected only as far as practicable. It is quite within the capacity of the Government to amendment the Protection of Life During Pregnancy Act 2013 to allow for abortions in these cases, and allow the Supreme Court to assess the strength of the arguments in favour thereof from a constitutional law perspectives. Certainly, there would be difficulties with this?the Government would have to reverse its long-standing position, the Court would be asked to revisit a deeply contentious judgment (AG v X) and assess the extent to which it is a conclusive statement of the meaning of Article 40.3.3, and arguably the common understanding of the provision in question is that it does prohibit such abortions so that there would be a clear concern about subverting the Constitution. A referendum might, thus, be preferable.

But one thing is sure, this decision reinforces the position long-held by many: Article 40.3.3 is unsustainable, unsuitable, and incompatible with human rights. A referendum is urgently required.

This post is by Professor Fiona de Londras, University of Birmingham School of Law. She can be contacted by email at f.delondras[at]bham.ac.uk 

Ntina Tzouvala - Fri May 06, 2016 11:36
Dr Alan Greene The ambiguous outcome of the general election has been heralded as an opportunity for a new politics to emerge in Ireland. Dáil reform to deal with this new reality has featured highly in the news cycle as no longer can the Government dominate the legislative agenda and expect all its bills to […]

Dail eireann

Dr Alan Greene

The ambiguous outcome of the general election has been heralded as an opportunity for a new politics to emerge in Ireland. Dáil reform to deal with this new reality has featured highly in the news cycle as no longer can the Government dominate the legislative agenda and expect all its bills to be enacted. Similarly, it can no longer expect to be able to veto opposition legislation or opposition tabled amendments to Government bills. This has a potential to reinvigorate the Oireachtas, enhancing constitutional dialogue, not just between the legislature and the executive, but also between the legislature and the courts in instances where there may be doubts as to the constitutionality of a proposed bill.

 

Constitutional Debate and the Oireachtas

To date, the Oireachtas has essentially treated the Irish courts as having a monopoly on constitutional interpretation. Certainly, there is an arguable case to be made that this is a result of the strong form judicial review seen in the Irish constitutional structure which potentially stymies political debate. The Oireachtas has relied heavily on the expert legal opinion of the Attorney General with in the questionable constitutionality of a bill often used as a reason for the Government to vote it down at an early stage. Despite the clear importance that this evidence has in the overall outcome of the debate, the opinion of the Attorney General is never published.

 

A textbook example of this can be seen in the manner in which the last government voted down Clare Daly?s Bill to allow for the termination of a pregnancy in the case of a fatal foetal abnormality. During the Dáil debate on the Protection of Life during Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013, Taoiseach Enda Kenny argued that the bill was quite clearly unconstitutional. Moreover, he refused to publish the advice of the Attorney General on the matter as, ?It has been a long-standing situation in this country, where the advice given by the Attorney General of the day has never been published.?

 

Constitutional Dialogue

In light of this, judicial supremacy as seen in Ireland has been criticised by political constitutionalists who argue that it takes decisions about human rights away from the legislature. Human rights, according to this conception, are ?the statement of a political conflict masking as the resolution of it?.[1] Instead, human rights should beconceptualised as political contestations that people invariably agree over. The resolution of such disputes should, as a result, be done by the representatives of the people in the democratic branches of government.

 

Even notable bastions of political constitutionalism have, however, come around to the idea of some degree of judicial protection of human rights. The UK?s Human Rights Act 1998 (HRA) is seen as conceptualising a ?third way? between judicial supremacy on the one hand and parliamentary supremacy on the other.[2] Moving away from this adversarial conceptualisation of the legislature and judiciary, instead, it seeks to foster a dialogue on rights between courts and the British Parliament with the final say resting with Parliament. It does this through requiring courts to interpret legislation compatibility with the European Convention on Human Rights (ECHR) so far as it is possible to do so, and also gives courts the discretionary power issue a declaration of incompatibility when it believes it cannot reconcile the statutory provision in question with the ECHR. The resolution of this incompatibility therefore resides with Parliament. Dialogue is also created through the work of the Joint Committee on Human Rights (JCHR) and the requirement under s19 of the HRA for government ministers to issue a declaratory statement before Parliament that a bill is compatible with the Convention.

 

Such attempts at constitutional dialogue are not alien to Ireland. Ireland?s equivalent to the HRA ? the European Convention on Human Rights Act 2003 ? mirrors closely the interpretive obligation and the declaration of incompatibility provisions of the HRA, thus leaving the resolution of such incompatible provisions in the hands of the Oireachtas.

 

Indeed, a referral of a bill to the Supreme Court for a pre-emptive test as to its constitutionality under Article 26 of the Constitution is also a possibility for dialogue to take place between the legislature and the judiciary in Ireland as to the scope of constitutional rights. This potential for dialogue has, however, been significantly weakened by the Second Amendment of the Constitution Act 1941 which amended Article 34 to prevent bills deemed constitutional under an Article 26 reference from ever having their constitutionality challenged again. As a result, consecutive presidents ? themselves constituent parts of the legislature ? have been reluctant to make use of this power. This is particularly so in light of the fact that Article 26 cases are based on hypothetical legal argument, thus lacking the force or urgency of concrete facts to illuminate the actual impact of the legislation in question. The Second Amendment of the Constitution Act 1941 was not enacted by referendum but was instead done through a simple legislative procedure in accordance with the transitory provisions of the Constitution.

 

Moreover, judicial supremacy is not inimical to dialogue on rights. With regards to ordinary challenges to the constitutionality of legislation, while the courts under the Constitution have the final say in an individual case as to the scope of constitutional rights; this does not mean that the courts should or do have the only say along the way. Procedural aspects to constitutional challenges ? the presumption of constitutionality, reaching constitutional issues last, and the double construction rule? are all mechanisms by which courts show respect to the Oireachtas? democratic mandate. In addition, saying that once a judgment of the Supreme Court is issued does the debate stop is problematic. A statement as to the content of a constitutional, convention or other rights provision is rarely, if ever, the final statement as to the condition of law for all time. Human rights do not work like that; law does not work like that. The constitution is a living and breathing document and constitutional dialogue is important for it to evolve.

 

Judicial Supremacy or Executive Supremacy?

Constitutional dialogue, however, has been stymied in Ireland but this is not the fault of judicial supremacy; rather, this argument overlooks the exceptionally strong hold the executive branch in Ireland has had over the legislature. Strong governments have instead used legal opinion as a justification to avoid contentious issues, halting legislation at an early stage before the Oireachtas has gotten a chance to scrutinise the legislation in earnest.

 

Returning to the earlier example of Claire Daly?s private members bill on fatal foetal abnormalities, the constitutionality of this bill was not as clear cut as the Taoiseach suggested. There is, at present, ambiguity in Article 40.3.3° of the Constitution as to whether ?unborn? extends to foetuses that have no chance of surviving outside the womb. This very point was raised by the Irish Government before the European Court of Human Rights in D v Ireland. In that case the applicant was pregnant with twins and was informed by her doctor that one foetus has stopped developing after 8 weeks? gestation and that the other foetus tested positive for Edward?s Syndrome, the median age of survival of which is 6 days. The applicant, ?unable to tolerate the physical and mental toll of a further five months of pregnancy with one foetus dead and with the other dying? travelled to the UK for an abortion. She did not consider any legal proceedings in Ireland as her various doctors indicated to her that they ?appreciated that she was not eligible for an abortion in Ireland? when she informed them of her decision to terminate the pregnancy.

 

D?s case under Article 3,[3] 8,[4] 10[5], and 14[6] was, however, dismissed as inadmissible by the Fourth Section of the Court on the grounds that she had not exhausted all domestic remedies. The Court upheld the Irish Government?s submission that:

 

It was an open question as to whether Article 40.3.3 could have allowed a lawful abortion in Ireland in the applicant?s circumstances?[A]lthough it was true that Article 40.3.3 had to be understood as excluding a liberal abortion regime, the courts were nonetheless unlikely to interpret the provision with remorseless logic particularly when the facts were exceptional. If therefore it had been established that there was no realistic prospect of the foetus being born alive, then there was ?at least a tenable? argument which would be seriously considered by the domestic courts to the effect that the foetus was not an ?unborn? for the purposes of Article 40.3.3 or that, even if it was an ?unborn?, its right to life was not actually engaged as it had no prospect of life outside the womb.[7]

 

Minority Government and Constitutional Dialogue

In actuality, it is not judicial activism or judicial innovation in Ireland that is stymieing debates on rights and constitutionality in Ireland; rather, it is an overly strong executive that has a stranglehold on both houses of the Oireachtas. Legal advice is used as a convenient excuse to kick apparently contentious issues such as reproductive rights to touch.

 

Indeed, inaction can sometimes be louder than action. The UK Government?s failure to enfranchise prisoners despite a declaration of incompatibility under the HRA and a finding of a breach of the Convention from the Grand Chamber of the ECtHR is a concrete example of this. Similarly, the failure for over 20 years of successive Irish governments to legislate for the X-Case could be interpreted as these governments disagreeing with the Supreme Court?s judgment that abortions are lawful in Ireland where there is a real and substantial risk to the life of the mother arising from suicide. Two separate attempts to over-turn this judgment (the proposed 12th and 25th amendments respectively) via a constitutional amendment would also corroborate this; however, it also reveals the importance of an additional voice to the dialogue on rights in Ireland: the direct voice of the people through a referendum.

 

A reinvigorated Dáil therefore has an opportunity to break free from the domination of the executive branch and increase its scrutiny of legislation. No longer can an opinion of the Attorney General act as a de facto legislative veto. Indeed, it may be the case that such evidence may have to be published where it is suitable in order for the Oireachtas to scrutinise its substantive content. Merely claiming that the Attorney General advises that a proposed bill is unconstitutional may convince those subject to the minority government?s whip; however, the opposition benches may require a stronger justification than an appeal to authority. In this way, the Oireachtas can contribute more forcefully to the debate regarding the scope of constitutional rights protection in Ireland.

 

Ultimately, if the Oireachtas disagrees with a judgment of the Courts, it can submit a constitutional amendment to the people for ratification. This process can act as a safety valve, relieving political pressure that may build up in the face of a particularly contentious decision of the Supreme Court. In this way, the temptation to pack the court with ideological counterparts that may be seen in the United States is avoided as there are simpler, quicker, and more reliable ways to over-turn such a judgment.

 

Conclusions

The value of political constitutionalism or republican conceptualisations of human rights lies in processes. It requires legislative processes to be fora for disagreement rather than a mere rubber-stamp government decision-making. The prospect of a minority government is perhaps the best opportunity Ireland has had for such a culture of justification to embed itself in parliamentary processes. Time will tell whether this newly invigorated Dáil with grasp this opportunity.

 

Dr Alan Greene is a Lecturer in Law at Durham Law School and Co-Convenor of the Durham Human Rights Centre. He tweets @DrAlanGreene.

Image credit: https://flic.kr/p/eRVtiA?utm_source=rss&utm_medium=rss

 

[1] JAG Griffith, ?The Political Constitution? (1979)42(1) Modern Law Review 1,14.

[2] Francesca Klug, ?The Human Rights Act – a “third way” or “third wave” Bill of Rights? [2001] EHRLR 361.

[3] Prohibition on torture or inhuman and degrading treatment

[4] Right to respect for privacy and family life

[5] Freedom of expression

[6] Prohibition on discrimination

[7] D v Ireland, para 69.

GuestPost - Wed May 04, 2016 06:46
We are pleased to publish this guest post from Ciarán Finlay, Legal & Policy Officer with the Free Legal Advice Centres (FLAC). The value of shining an international spotlight on domestic human rights issues has long been recognised by civil society organisations working in Ireland. Prior experience has shown that international scrutiny by United Nations […]

We are pleased to publish this guest post from Ciarán Finlay, Legal & Policy Officer with the Free Legal Advice Centres (FLAC).

The value of shining an international spotlight on domestic human rights issues has long been recognised by civil society organisations working in Ireland. Prior experience has shown that international scrutiny by United Nations (UN) bodies and experts can yield tangible results in the form of positive state action.

However, while domestic actors place much emphasis on periodic reporting to UN Human Rights Treaty Bodies and the Universal Periodic Review mechanism, considerably less focus is placed on engagement with UN Special Procedures mandate holders and taking individual complaints to UN Treaty Bodies.

To bridge this gap, FLAC has developed two guides which aim to better equip civil society actors seeking to engage with UN Special Procedures mandate holders and individuals taking complaints to UN Treaty Bodies as well as civil society actors taking cases on their behalf.

The first guide is intended for civil society organisations seeking to engage with UN Special Procedures mandate holders. Mandate holders are independent human rights experts who examine, monitor, advise and publicly report on human rights situations in specific countries or on certain thematic human rights issues such as migrants, minorities, education and violence against women.

Drawing on case studies from Ireland, the guide describes the tools available to mandate holders to fulfil their functions, explains how civil society organisations can engage with these experts and identifies the criteria which must be satisfied in order to do so.

In terms of powers, mandate holders can, first of all, send communications to states concerning alleged human rights violations. Oftentimes, mandate holders will mobilise on the basis of information received from civil society. For example, in April 2015, acting upon information transmitted by civil society, the Working Group on the issue of discrimination against women in law and in practice and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health transmitted a joint communication to the Government concerning the potential discriminatory effects of the Gender Recognition Bill.

In particular, the mandate holders expressed concerns and asked detailed questions regarding mandatory medical certification, the ?forced divorce? clause and disproportionate safeguards applied to children which, in their view, discriminated against transgender people and their rights to privacy, equality and education and could affect physical and mental health. The mandate holders requested an official state response to their allegations.

Importantly, civil society organisations can provide information on alleged human rights violations even where Ireland has not ratified the relevant UN treaty. For example, while Ireland has yet to ratify the UN Convention on the Rights of Persons with Disabilities, or its Optional Protocol, organisations can submit communications to the UN Special Rapporteur on the Rights of Persons with Disabilities concerning alleged human rights violations affecting persons with disabilities.

Second, mandate holders can undertake country visits which allow them to assess the human rights situation on the ground. In January 2011, then Independent Expert on extreme poverty and human rights, Magdalena Sepúlveda Carmona, undertook a country visit to Ireland. Her visit focused on the impact of the economic crisis in Ireland and the effect of austerity measures on the enjoyment of human rights. She looked in particular at how vulnerable groups were impacted by recovery measures.

During her visit, civil society actors raised awareness of the visit through the media, met directly with Ms Sepúlveda Carmona and provided her with briefings on issues relevant to her mandate. In May 2011, Ms Sepúlveda Carmona published her mission report on Ireland. She made a range of recommendations including to reverse austerity measures which had disproportionately impacted on the most vulnerable and to strengthen the social protection system, infrastructure and social services.

It is relevant to note in this regard that civil society organisations will have the opportunity to engage with both the Special Rapporteur on the human right to safe drinking water and sanitation and the Special Rapporteur on the sale of children, child prostitution and child pornography in the near future as both have requested to visit Ireland.

Thirdly, mandate holders frequently undertake detailed studies on specific human rights violations or situations affecting a certain vulnerable group. Civil society can provide information for inclusion in these reports. For example, the UN Special Rapporteur on the right to adequate housing presented a report on homelessness to the UN Human Rights Council in March 2016. The Special Rapporteur?s report notes that, in Ireland, families with children have become the fastest growing group within the homeless population. To support her argument, the Special Rapporteur referenced a submission she received from an Irish organisation working with people who are homeless.

The second guide is a toolkit for individuals taking complaints to UN Treaty Bodies as well as civil society actors taking cases on their behalf. UN Treaty Bodies are committees of independent experts which are responsible for monitoring compliance with international human rights treaties. The guides specify which mechanisms people in Ireland can access, the procedures involved and the requirements which must be fulfilled.

Thus far, Ireland has ratified six core international human rights treaties. Of these, individuals can bring complaints to five UN Treaty Bodies, the sole exception being complaints to the UN Committee on Economic, Social and Cultural Rights. Despite signing the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights in March 2012, Ireland has yet to ratify this instrument. Ratification would enable individuals to bring complaints alleging violations of the International Covenant on Economic, Social and Cultural Rights which protects basic rights such as health, housing and social security.

The guide also contains case studies on complaints which have been brought against Ireland to UN Treaty Bodies. To date, five complaints have been made against Ireland. All of these petitions have been filed with the Human Rights Committee alleging violations of the International Covenant on Civil and Political Rights (ICCPR).

Three complaints, including Ó Cólchúin v Ireland, which concerned voting restrictions imposed on Irish citizens living abroad, were deemed inadmissible.

Nevertheless, two petitions were found to be admissible and were considered on the merits. In Kavanagh, Ireland was found to have breached the ICCPR for failing to demonstrate that the decision to try the complainant before the Special Criminal Court was based upon reasonable and objective grounds. In O?Neill & Quinn, the Human Rights Committee found no violation of the Covenant, holding that the Government?s decision to exclude the complainants from the early release scheme under the Good Friday Agreement was not discriminatory and their continuing detention was not arbitrary.

An information piece on the guides with links is available on the FLAC website.

Eoin Daly - Fri Apr 29, 2016 17:15
Dublin City University is inviting applications for PhD studentships in Politics, International Relations and Law. Further details are here.

Dublin City University is inviting applications for PhD studentships in Politics, International Relations and Law. Further details are here.

Eoin Daly - Mon Apr 11, 2016 10:54
We are pleased to welcome this guest post by Conor Talbot, PhD Candidate at the European University Institute, Florence, and an Associate Researcher at the Department of Economics, Trinity College Dublin (contact ctalbot@tcd.ie). Sport is an integral part of the culture of almost every nation and its ability to shape perceptions and influence public opinion should not […]

We are pleased to welcome this guest post by Conor Talbot, PhD Candidate at the European University Institute, Florence, and an Associate Researcher at the Department of Economics, Trinity College Dublin (contact ctalbot@tcd.ie).

Sport is an integral part of the culture of almost every nation and its ability to shape perceptions and influence public opinion should not be underestimated. The United Nations has highlighted the potential for using sport in reducing discrimination and inequality, specifically by empowering girls and women. Research indicates that the benefits of sport include enhancing health and well-being, fostering empowerment, facilitating social inclusion and challenging gender norms.

In spite of the possible benefits, the successful implementation of sport-related initiatives aimed at gender equity involves many challenges and obstacles. Chief amongst these is the way that existing social constructs of masculinity and femininity ? or socially accepted ways of expressing what it means to be a man or woman in a particular socio-cultural context ? play a key role in determining access, levels of participation, and benefits from sport. This contribution explores recent developments in the interaction between transgender and intersex rights and the multi-billion dollar industry that the modern Olympic Games has become. Recent reports show that transgender people continue to suffer from the glacial pace of change in social attitudes and, while there has been progress as part of a long and difficult journey to afford transgender people full legal recognition through the courts, it seems clear that sport could play an increasingly important role in helping change or better inform social attitudes.

Background

?The practice of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.? – Olympic Charter

While proclaiming the practice of sport to be a human right, the Olympic Charter unequivocally states that the International Olympic Committee (IOC) has ?supreme authority? over the staging of the Olympic Games. Under the IOC?s stewardship, and in line with other major sporting events worldwide, a narrative has been carefully cultivated to the effect that events such as Olympic Games would not be possible without the support and resources of the broadcasters and, ultimately, sponsors. Therefore, while on the one hand, the use of sports as a development tool and strategy to reduce discrimination generally is growing, there is also a distinct field of commentary which is critical of the approach of the Olympic ?industry? (indeed, the term “industry” is used to draw attention to the profit-making goals of the Olympics).

Given the top-down nature of sporting governance, research from Wales and Scotland reveals that whilst many lesbian, gay, bisexual and transgender people continue to be put off by negative experiences or the perception that it is an unpleasant and unsafe environment for LGBT people. This post focuses in particular on the treatment of transgender and intersex athletes under the rules enforced by international sporting federations. In attempting to get ahead of the curve with transgender issues, with the stated aim of protecting the sporting integrity (and therefore the reputational and commercial value) of competitions by minimising sex-related advantages, the IOC has a long history of insensitive and often unproductive testing protocols for athletes. As it is probably the most visible of all international sporting federations, the IOC became the standard bearer for such testing policies and, indeed, it has been argued that IOC policies gave impetus (and sometimes political cover) for other groups to follow suit.

Gender/Sex Verification Tests and the Stockholm Consensus

The issue of gender- or sex-verification gained global attention in recent times after South African runner Caster Semenya was ordered to undergo tests after winning the 800m world title in 2009. She was eventually cleared to compete by the IAAF and won silver in the 800m at the 2012 London Olympics.

IOC had maintained a practice of conducting gender verification tests at the Olympic Games, with the testing of Dora Ratjen in 1938 and Foekje Dillema in 1950 being early cases to gain attention. The initial testing protocols amounted to rather crude and undoubtedly humiliating physical examinations. These techniques later gave way to the method of determining ?sex? chromatin through buccal smear examination, introduced at the Mexico City Olympic Games in 1968. Chromosome-based screenings were criticised for being unscientific and unfairly excluding many athletes, in particular since only the chromosomal (genetic) sex is analysed by sex chromatin testing, not the anatomical or psychosocial status. These techniques were abandoned by the IAAF in 1991 and the IOC since Sydney 2000.

Under the so-called Stockholm Consensus, the IOC granted permission for men and women who had undergone gender reassignment surgery to participate in competitive sport. The Consensus recommended that individuals undergoing sex reassignment from male to female after puberty (and the converse) be eligible for participation in female or male competitions, respectively, once surgical anatomical changes had been completed (gonadectomy), legal recognition of their assigned sex had been conferred; and verifiable hormonal therapy had been administered for a sufficient length of time to minimise gender-related advantages. Under the Consensus, eligibility for competition could begin no sooner than two years after the athlete?s gonadectomy.

 

Regulation of Hyperandrogenism in Female Athletes

Hyperandrogenism is a term used to describe the excessive production of androgens (testosterone). Given its influence on endurance and recovery, controversies have arisen in the past surrounding cisgender women athletes with high levels of testosterone. An Indian sprinter, Dutee Chand, was suspended by the IAAF in 2014 due to her elevated testosterone levels. However, the Court of Arbitration for Sport (CAS) suspended the IAAF rule in July 2015, on the grounds that the IAAF had failed to prove that women with naturally high levels of testosterone had a competitive edge. The CAS ordered the IAAF to present new scientific evidence regarding the degree of competitive advantage enjoyed by hyperandrogenic females by July 2017, otherwise its 2011 Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women?s Competition would be declared void.

While Chand was cleared to compete following her high profile appeal, a study published in April 2013 in the Journal of Clinical Endocrinology & Metabolism, a US peer-reviewed journal for endocrine clinical research, recounts the rather less fortunate fate of four anonymous young athletes who, it appears, were effectively forced to undergo surgery to allow them to compete in women?s sports ahead of the 2012 Olympics. When the story emerged in June 2013, the IAAF reportedly denied that it had taken place.

The young women, who were 18, 20, 21, and 20 years of age at the time of the study, came from rural or mountainous regions of developing countries. Clinical inspection of the women revealed varying degrees of intersexuality: they had never menstruated and had male bone characteristics, no breast development and partial or complete labial fusion. Consanguinity was confirmed for three of them (first cousins in two cases and siblings in another) and was suspected in the fourth case with her parents originating from neighbouring villages. The authors of the report opine that the gender abnormalities of the athletes may not have been formally diagnosed or given medical attention because they had been born in rural regions of countries with poor care. In all cases, they were tall, slim, muscular women and had manifested strong motivation and high tolerance to intensive daily training, which had made them good candidates for elite sports competition.

Rather than requesting gender change, the study reports that the athletes wished to maintain their female identity in order to continue elite sport in the female category. Although leaving male gonads carried no health risk, and despite the negative effect that a gonadectomy would have on their performance levels and general health, the athletes underwent the feminising surgical procedures. The study concludes that the sports authorities then allowed them to continue competing in the female category one year after their procedures. The radical nature of the surgery required, as well as the unknown future impact on the athletes? health, highlight the dangers of such policies for inclusion in women’s sporting events.

New IOC Guidelines

Under new IOC Transgender Guidelines, which were reported as stemming from an unpublicised Consensus Meeting on Sex Reassignment and Hyperandrogenism, surgery such as that described above will no longer be required. Female-to-male transgender athletes are now eligible to take part in men?s competitions ?without restriction?, while male-to-female transgender athletes will need to demonstrate that their testosterone level has been below 10 nanomols per litre for at least one year before their first competition. That said, the IOC document does contain a provision allowing for a the imposition of a period of longer than one year, based on a confidential case-by-case evaluation, considering whether or not 12 months is a sufficient length of time to minimize any advantage in women?s competition. No further detail is provided on the nature of these case by case evaluations so it is unclear just how much progress these guidelines actually represent compared to the crude sex verification tests used in the past. Again, the IOC justifies these regulations as being necessary to avoid accusations of an unfair competitive advantage.

The IOC document also refers directly to CAS decision in relation to Dutee Chand. Specifically, the IOC encourages the IAAF, with support from other International Federations, National Olympic Committees and other sports organisations, to revert to CAS with arguments and evidence to support the reinstatement of its hyperandrogenism rules. Therefore, the IOC?s appears to contest the validity of the CAS award and seems determined to provide scientific grounds for upholding its ban on female athletes with elevated levels of testosterone, even where it is naturally occurring and the athletes? bodies are partially unable to process it.

Taken together, the net result of these regulations is that if a female transgender or intersex athlete?s natural testosterone levels are considered too high, she is expected to undergo treatment to reduce her testosterone to levels considered to be within the normal range for women before being allowed to compete in women?s sports. This has come to be the subject of severe criticism because it is argued that such athletes are being medically harmed by sport under these regulations. Testosterone is essential for the development of male growth and masculine characteristics, and is vital for any athlete in aiding recovery times from physical exertion. Although the health effects of the presence of high levels of testosterone in women?s bodies is still the subject of research, testosterone occurs naturally in both males and females and would appear to be vital for the body?s all-round health.

Kristen Worley Litigation

The potential for these testosterone limits to lead to harm to the athletes involved is the focus of a major case being brought by a Canadian cyclist, Kirsten Worley, a female athlete who has transitioned from male to female by undergoing sex reassignment surgery with the result that she no longer produces either testosterone or estrogen. She alleges that the Ontario Cycling Association and Cycling Canada Cyclisme gender verification and anti-doping rules discriminate against her on grounds of sex, contrary to the Canadian Human Rights Code. The rules in question are based on the Union Cycliste Internationale (UCI) directives which are, in turn, based on IOC policies. Worley claims that these policies have damaged not only her ability to continue taking part in competitive cycling, but also her health.

Interestingly, Worley effectively bypassed international sport’s usual dispute-settlement procedures by bringing her claim through the mainstream human rights judicial instances. After the preliminary issue of whether the respondents received effective legal notice, a further dealy was caused when the IOC requested that the Tribunal defer consideration of Worley?s application pending the completion of a judicial review application commenced by the IOC. The IOC also argued that the Human Rights Tribunal of Ontario was not competent to hear the case, since it concerns sporting rules. Likewise, the UCI objected to the Tribunal?s ability to adjudicate and argued that the UCI Arbitral Board and/or the Canadian Center for Ethics in Sport are the competent authorities to address the allegations contained in Worley?s application.

Next Steps

Importantly, the court hearing the preliminary proceedings in the Worley application held that it is established law that parties cannot contract out of the Canadian Human Rights Code?s protections. Therefore, the court rejected the proposition that the Human Rights Tribunal lacked jurisdiction purely because there are alternate mechanisms to which Worley could have, but did not, file a claim. As such, the Worley litigation is extremely interesting as it will be a rare instance of the sheltered world of international sporting organisations being subjected to the full rigours of human rights principles.

It will be very interesting to follow how this claim is dealt with by the Canadian courts, and received by the international sporting community generally, in the months and years to come. Worley herself has pursued this campaign for over a decade and, given the publicity garnered by the latest steps in her litigation, it now appears to have the potential to inspire other athletes to avail of human rights avenues to open up sports-based disputes to courts of law rather than courts of arbitration. From the IOC?s perspective, it is clear that it has a legitimate interest in acting to preserve fair competition but this agenda cannot be pursued irrespective of the repercussions. The most recent changes to its Transgender Guidelines are expressly stated to have been introduced in recognition of how requiring surgical anatomical changes as a pre-condition to participation may be inconsistent with ?notions of human rights?.

If nothing else, the new IOC Transgender Guidelines proves that international sport does not operate in a vacuum and is capable, to some extent at least, of reflecting social progress. However, it remains to be seen whether the most visible sporting governance body is prepared to play a true leadership role in utilising all the benefits of sports in helping to change perceptions of transgender and intersex athletes. In that sense, the Kirsten Worley litigation represents a crystallisation of a struggle to apply human rights principles in a new area and, as such, will be worthy of our attention going forward.

Conor Talbot is a PhD candidate at the European University Institute. He can be contacted at conor.talbot@eui.eu and his research is available at www.ssrn.com/author=1369709?utm_source=rss&utm_medium=rss.

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