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The Employment Equality Bill 2013 was published by the Oireachtas on Monday this week.

The Bill proposes to amend the existing Employment Equality Acts 1998 to 2011 and thereby extend the general definition of discrimination to include discrimination on the grounds of gender identity, as well as to extend general protection against discrimination on the basis of civil status, gender identity or sexual orientation in, and in connection with, employment, vocational training and membership of certain bodies.

The Bill proposes to amend Section 2 (definitions) of the Employment Equality Act 1998 by inserting the following new definition of “gender identity”

“gender identity” means each persons deeply felt internal and individual experience of gender, which may or may not correspond with sex assigned at birth, including the person’s sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other experiences of gender, including dress, speech and mannerism”

The Bill also proposes to amend Section 2(1) of the Employment Equality Act 1998 (as amended by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 ) by substituting the following definition for “civil status”

“civil status means being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved or being or having been a cohabitant or qualified cohabitant within the meaning of Section 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010”.

It is also proposed to amend Section 6 of the Bill to insert the following after subsection (2)(i) (and thereby increasing the current nine grounds of discrimination to ten. At present it is unlawful to discriminate on age, gender, race religion, marital status, family status, sexual orientation, membership of the travelling community and disability). The current draft Bill provides that it will also now be unlawful to discriminate on the grounds that:

“(j) that one is a person whose gender identity differs to that of the legal gender status of the person”

Finally the Bill as presently drafted proposes to amend Section 37 of the Employment Equality Act which deals with the exclusion of discrimination on particular grounds in certain employments. The Bill proposes to amend Section 37 to insert a new subsection (7) to provide:

“(7) Nothing in subsection (1) may be relied upon by an institution referred to in subsection (1) to justify or permit any form of discrimination as defined in subsection (1) to justify or permit any form of discrimination as defined in section 6(2) or to allow any action to be taken against any employee or potential employee on the basis that employee’s or potential employee’s gender identity, civil status, or sexual orientation”

The proposed new subsection (8) provides that “Nothing in subsection (1) may be relied upon by an institution referred to in subsection (1) to justify more favourable treatment of or in respect of one employee or potential employee over another employee on the basis of his or her civil status, gender identity or sexual orientation”.

In essence Section 37(1) as currently drafted permits discrimination by a religious, educational or medical institution established for a religious purpose, where it is reasonable to do so to either maintain the religious ethos of the institution or where it is reasonably necessary to in order to avoid the undermining of that ethos. The proposed amendments provide that this subsection cannot be relied upon by religious, medical or educational institutions to justify or permit discrimination or allow any action to be taken on the basis of the employee or a potential employee’s gender identity, civil status or sexual orientation. Equally it is proposed that the above institutions cannot justify more favourable treatment in respect of one employee or a potential employee over another employee on the basis of his or her civil status. gender identity or sexual orientation.

It will be interesting to see the passage of this Bill through to enactment and we will keep you abreast of any developments and changes as they arise including any relevant commentary in the Dail debates.

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