Justice Minister Alan Shatter (pictured) has said that Section 37 of the Employment Equality Act is unfair to gay and lesbian teachers and must be amended.

Section 37 upholds the right of religious organisations not to employ those it believes would undermine their ethos. This right was upheld by the Supreme Court.

In a speech the Fine Gael’s LGBT branch, Mr Shatter said that the Government should look at restricting the scope of Section 37.

Mr Shatter suggested that, while section 37 might remain unaltered “in respect of wholly autonomous religious institutions” it could be amended to provide that action to prevent an employee undermining the religious ethos of an institution “may only be taken where an employee actively undermines or seeks to undermine, or where there is a reasonable belief based on demonstrable evidence that a prospective employee would so undermine or seek to undermine, the religious ethos of the institution concerned”.

He said: “The crucial thing would be to ensure that the power of the institutions to differentiate between employees or prospective employees should only apply where there is a real danger for the institution based on evidence.”  

Such evidence, Mr Shatter said might include proof that the person acted with the conscious purpose of directly undermining the employer’s core religious beliefs or dogma or that it was “a genuine and demonstrably necessary occupational requirement of the employer that the employee act in a way consistent with the employer’s religious beliefs”.

He said: “The provision might specify the specific considerations that must be weighed in arriving at this determination, including, for example, whether the employer’s action is rationally and strictly related to the employer’s core beliefs or dogma”.  

He said he would ask the new Irish Human Rights and Equality Commission as a priority to examine this issue.  

Mr Shatter said: “The Commission will make recommendations following consultation with all interested parties. I am committed to bringing forward Government proposals for any necessary anti-discrimination amendment to this provision once this consultation process is completed.”

He said that the Supreme Court in 1996 had found that section 37 was “a reasonable balancing in legislation of the different rights involved, including chiefly the right to earn a living and the rights to freedom of religion and association”.

But he said he was “concerned that the balance in practice is not a fair one and that in practice this provision can operate in a way that is unfair to LGBT persons”.