Justified Discrimination

t Justified Discrimination? A Critical Analysis of the Decision in Wilkinson v Kitzinger [2007] 1 FLR 296 by Erin Culley, Department of Law, University of Greenwich [1] ABSTRACTThe creation of the civil partnership was a clear compromise between the need to recognise a formalised relationship between same-sex couples while still acknowledging the protests of those against the creation of gay marriage. Many were thrilled with the symbolic step taken by Parliament, whereas others were appalled at the creation of a new institution rather than simply permitting same-sex couples access into the institution of marriage. This was the subject of the challenge to the High Court in the case of Wilkinson v Kitzinger [2007] 1 FLR 296, where it was argued that the creation of a similar but different institution for same-sex couples was discriminatory and conflicted with the European Convention on Human Rights. This article criticises the decision of Sir Mark Potter, who ruled that though it can be seen as discriminatory, such discrimination is justified on the legitimate ground of the protection of family life. It is argued in this paper that the justifications put forward have no legitimate basis and that the decision was erroneous and was based on a culturally conditioned heterosexual predisposition.KEYWORDS: Civil partnership, marriage, discrimination, same-sex, sexual orientation, human rights. INTRODUCTIONIn recent years, several countries – the Netherlands, Belgium, Spain, Canada and South Africa – have legislated to permit same-sex marriages. While the law of England and Wales does not allow such marriages, the Civil Partnership Act 2004 has created a legally recognised relationship for same-sex couples, the civil partnership. Apart from minor differences which will be discussed later, there are no noteworthy legal differences between a civil partnership and a marriage. However, in 2006, a same-sex couple challenged its compatibility with the European Convention on Human Rights (ECHR) in the case of Wilkinson v Kitzinger [2006] EWHC 2022 (Fam), [2007] 1 FLR 296. This decision will be critically analysed in the light of recent decisions of other common law jurisdictions, which have found prohibitions on same-sex marriages discriminatory. While it is acknowledged that the common law decisions are based on different constitutional models to those of the UK, they prove to be a useful source of comparison on the issue of discrimination, particularly as they are some of the only cases that have directly discussed the issue of same-sex marriage.Before examining the judgment, we shall explain briefly the role of Parliament and the courts in ensuring compatibility with the ECHR. Prior to the Human Rights Act 1998, challenges to the compatibility of domestic laws were made to the European Court of Human Rights (ECtHR). Challenges may now be made directly to domestic courts. The courts have a duty under s.3 to read all legislation in line with the Convention, if possible, something described by Lord Steyn as the ‘lynch-pin’ of the legislative scheme, its purpose being to ‘bring [Convention] rights home’. (Ghaidan v Godin-Mendoza [2004] UKHL 30 at para. 42). As a ‘last resort’, if ‘reading down’ is not possible, a declaration of incompatibility must be made under s.4 (Ibid. at para 46). This declaration is not binding on Parliament, but changes will usually be made to bring the provisions in-line with the Convention to prevent a challenge to the ECtHR.The petitioners in Wilkinson v Kitzinger were legally married in Canada and sought a declaration of validity under s.5 of the Family Law Act 1986. However, according to s.11 of the Matrimonial Causes Act 1973, a marriage is void if it is between two persons of the same sex. Furthermore, s.215 of the Civil Partnership Act 2004 provides that any same-sex marriage entered into abroad shall be regarded as a civil partnership rather than a marriage. The petitioners argued that the prohibition on same-sex marriage breached Article 8 of the Convention, which gives every person the right to respect for their private and family life, and Article 12, which provides that every man and woman has the right to marry according to their national laws. Furthermore, they argued a breach of Article 14, which prohibits unjustified discrimination.[2] If the provisions could not be ‘read down,’ the petitioners sought a declaration of incompatibility. The decisions regarding Articles 8 and 12 alone will be discussed here before we commence an analysis of whether the prohibition is unjustly discriminatory under Article 14. ARTICLE 8The rights protected within Article 8 are read disjunctively. Sir Mark Potter noted that ‘private life’ has been given a wide interpretation by the ECtHR to include the right to establish relationships (Niemietz v Germany (1992) 16 EHRR 97) and that sexual orientation is one of the ‘most intimate aspects’ of one’s private life (Dudgeon v UK (1982) 4 EHRR 149). Therefore, same-sex relationships came within ‘private life’ and deserved respect (para 68). However, this did not extend to place a positive obligation on the State to recognise same-sex marriages (para 54). Same-sex relationships had been accorded respect through the creation of a formal legal partnership recognising their commitment to each other, so no further steps were required. By prohibiting same-sex marriages, the petitioner’s private life had not been interfered with as her behaviour had not been ‘criminalised, threatened or humiliated’ (paras 85 and 88, on the authority of M v Secretary of State for Work and Pensions [2006] 2 WLR 638, hereinafter ‘M v Secretary of State’).As Wright (2006: 249) argues, if all the rights and responsibilities of marriage are enjoyed within a civil partnership, it is only the public element, i.e. public perception, which has been interfered with rather than interfering with the private element. Therefore, Sir Mark Potter’s analysis would seem correct.Regarding the ‘family life’ limb of Article 8, attention was drawn to the case of Estevez v Spain (ECtHR, 10 May 2001), in which the State’s failure to give a surviving same-sex partner an allowance available to a surviving spouse was held not to be within the ambit of family life. Further, as there was little common ground on this issue amongst contracting states, the margin of appreciation should be wide. This case was approved in M v Secretary of State. Sir Mark Potter concluded that a childless same-sex relationship is not protected within the term ‘family life’ so there was no breach of Article 8 (paras 85-88).Kirby identifies that:the President’s view of what constitutes “family” is one which sits uneasily with the great variety of real families […] that exist in the UK (Kirby, 2007: 415) While there has been to date no recognition by the ECtHR that a childless same-sex couple constitutes ‘family life’, neither has there been any decision that they would not. (M v Secretary of State at para. 112 per Baroness Hale). The Convention is a ‘living instrument’ (Tyrer v UK (1978) 2 EHRR 138) to be interpreted in the light of ‘present-day conditions.’ (Marckx v Belgium (1979) 2 EHRR 330). Therefore, Lord Mance has suggested that if the question were raised in contemporary circumstances, the ECtHR may find this situation to come within family life (M v Secretary of State at para. 152). However, in the absence of such a decision by the Strasbourg court, the decision of Sir Mark Potter, whilst restrictive, is legally sound. Member states are free to interpret the Convention more widely than the Strasbourg court but they are under no duty to do so. (R (Ullah) v Special Adjudicator [2004] 2 AC 323 at para. 20 per Lord Bingham). Sir Mark Potter can be criticised for his failure to take proactive steps to reflect the changes in society’s acceptance of same-sex couples as constituting a family,[3] but he cannot be criticised for his strict application of Strasbourg jurisprudence. ARTICLE 12It was further argued by the petitioner that by prohibiting same-sex marriage, the right to marry under Article 12 was breached. The case of Rees v UK (1986) 9 EHRR 56 held that ‘marry’ within Article 12 refers to the traditional marriage between opposite biological sexes. The biological element was held too restrictive in Goodwin v UK [1996] ECHR 16 and marriage was widened to include post-operative transsexuals. However, Sir Mark Potter was of the opinion that the ECtHR had not wished to take more than an incremental step in widening the definition (para. 61). Therefore, there was no breach of Article 12 by prohibiting marriage between same-sex couples.Crompton laments:Should we not have marriage for the twenty-first century reflecting twenty-first century values and not those of a time when the church exercised a far stronger hold? (Crompton, 2004: 889).There are many ways in which Article 12 could have been interpreted to reflect the modern changes in society. Murphy suggests that ‘men and women’ could simply refer to the fact that the parties must be adults rather than referring to their opposite sexes (Murphy, 2004: 253). Alternatively, it could be argued that while the right is given to both men and women, they do not have to marry each other. However, the ECtHR has consistently ruled that the concept of marriage within Article 12 refers to marriage between a man and a woman (Rees v UK supra). In N v Secretary of State for the Home Department [2005] 2 AC 296 it was commented that ‘it is for the Strasbourg Court, not for us, to decide whether its case law is out of touch with modern conditions’ (para. 25). Member states may choose to interpret the provisions more widely but are under no duty to do so. Once again, while Sir Mark Potter is open to criticism for his failure to take proactive steps to recognise changes in society’s views by widening the interpretation of marriage, he cannot be criticised for his application of the Strasbourg jurisprudence. ARTICLE 14Having analysed the decision relating to Articles 8 and 12 alone, we have concluded that while the interpretations were narrow, they were legally sound based on the Strasbourg jurisprudence. We shall now move on to analyse the argument of discrimination under Article 14. Article 14 does not stand alone. It will only operate if it is within the ambit of another Convention Article. Discrimination on the grounds of sexual orientation has been held to come within the discrimination prohibited by Article 14 (Salgueiro da Silva Mouta v Portugal (2001) 31 EHRR 47). In determining whether there has been a breach of Article 14, courts must ask whether the facts fall within the ambit of one or more convention rights, whether there was a difference in treatment between those in an analogous position and whether this discrimination could be justified (Wandsworth London Borough Council v Michelak [2003] 1 WLR 617). However, while these questions are a useful tool, there is a ‘considerable overlap.’ (Ghaidan v Godin-Mendoza [2004] UKHL 30 at para. 134 per Baroness Hale).Regarding the first question as to whether the facts fall within the ambit of one or more of the Convention rights, Lord Nicholls states that:the more seriously and directly the discriminatory provision or conduct impinges upon the values underlying the particular substantive Article, the more readily it will be regarded as within the ambit of that Article’ (M v Secretary of State for Work and Pensions at para. 14 per Lord Nicholls)The petitioner submitted that by denying same-sex couples the right to marry the person of their choice, this accords a lack of respect for their sexual orientation which is an aspect of their private life within the ambit of Article 8. Wintemute explains that whenever a person has to choose between their sexual orientation (an aspect of their private life) and an opportunity (marriage), it comes within the ambit of their Article 8 right to respect for private life (Wintemute, 1997).Sir Mark Potter was not prepared to accept the argument that the provisions came ‘within the ambit’ of Article 8 as he did not wish to give the provision:an artificially extended interpretation so that virtually any social policy measure which has a link to a person’s personal life is brought within the Convention’s protection (para. 106).It would seem odd that Sir Mark Potter refers to marriage as comparable to ‘virtually any social policy measure’, having previously emphasised the symbolic nature of marriage. It is arguable, therefore, that his decision that this was not within the ambit of Article 8 was overly restrictive. Alternatively, it may be that the ECtHR would find this to be within the margin of appreciation as it such a sensitive issue. However, in relation to Article 12, Sir Mark Potter was prepared to find that by legislating on the issue of same-sex marriage where the state was under no positive obligation to do so, the state brought the provisions within the ambit of Article 12 (Petrovic v Austria (2001) 33 EHRR 14; see also Ghaidan v Godin-Mendoza [2004] UKHL 30).Having now answered the first question, that of whether the facts fall within the ambit of one or more convention rights, we now move to consider the second and third: whether there was a difference in treatment between those in an analogous position, and whether this discrimination could be justified. The petitioner argued that while the legal implications of a civil partnership were virtually identical to marriage within England and Wales, one might face problems when travelling to other countries, as a civil partnership is not globally recognised so treatment may vary. In addition, the petitioner argued that while the legal effect of a civil partnership is virtually identical to that of marriage, in reality, an intangible benefit is denied, namely ‘access to a deeply meaningful institution’ (para. 100 citing Halpern v Canada (Attorney General) (2002) CanLII 427949 (on S.C.D.C)).Sir Mark Potter was prepared to find that a difference in treatment had been suffered by persons in an analogous position (para. 111). However, on the third question of whether such a difference in treatment could be justified, he held that it could be, for the protection of the traditional family (following the decision in Karner v Austria (2003) 38 EHRR 528). As the only difference in treatment was the symbolic effect of the distinction rather than any notable legal differences, the distinction was considered proportionate in achieving that aim (para. 112). JUSITIFIED DISCRIMINATION?The decision concerning Article 14 has received the most criticism. Bamforth questions why such little weight was attached to the symbolic differences between marriage and civil partnership as they had been given such weight by the petitioner (Bamforth, 2007a). There are many ways in which it could be said that a civil partnership is symbolically different to a marriage. One example is that while the legal consequences of a civil partnership are virtually identical to marriage, the slight differences may have a symbolic effect. One difference is that while the facts for proving the grounds for dissolution are identical to divorce, adultery has been omitted. Further, the ground of non-consummation for nullity is not present. While these omissions are minor in practice, Cretney (2006) believes that they may indicate that a civil partnership is to be regarded as merely a legal status rather than a method of recognising an intimate familial relationship. He suggests that it could even be abused as a ‘tax haven’ between friends.Another legal difference regards the presumption of parenthood. Under s.28(2) of the Human Fertilisation and Embryology Act 1990, a husband is regarded as the legal father of a child obtained through assisted reproduction. This is based on a historical presumption of legitimacy rather than any biological link to the child, as a donor’s sperm was used. Similarly, this will apply to an unmarried heterosexual partner under s.28(3). However, under the current law, a civil partner will not benefit from these provisions. This distinction is to be revised by the Human Fertilisation and Embryology Bill so that the same-sex partner of a woman receiving treatment at a licensed clinic will be regarded as a legal parent. However, taking the law in its current state, there remains a distinction, which may have symbolic effect.Crompton (2004: 888) argues that by creating a separate institution for same-sex couples, regardless of the fact of whether the rights enjoyed are identical, the message portrayed is that same-sex relationships are less valued than opposite-sex relationships and that for true equality, same-sex couples should be permitted to marry. Bamforth (2007) questions Crompton’s analogy that ‘different cannot be equal.’ However, he points out that the fact that Crompton acknowledges that the legal consequences of a civil partnership are virtually identical to marriage but still has issue with the distinction, highlights how much symbolic importance she attaches to the difference in institution.In her statement (paras 5-9), the petitioner spoke of marriage as ‘society’s fundamental social institution for recognising the couple relationship’ and that it represents the ‘highest form of recognition for a committed relationship’. She said that to have her Canadian marriage reduced to a civil partnership would be a ‘consolation prize’ and would be ‘offensive and demeaning’ leading to a ‘sense of alienation and marginalisation’ so that she feels she would be ‘deprived of full citizenship.‘ It was argued that to prohibit access to this symbolic institution based on sexual orientation would be as ‘fundamentally unjust’ as to do so ‘on the basis of their race, ethnicity and nationality, religion or political beliefs.’ However, Potter simply stated that the views of the petitioner were not the views of every other gay or lesbian person (para. 116).This is surprising given the amount of weight attached to the symbolic state of marriage by the courts in other common law jurisdictions. In the Canadian case of Halpern v Canada (Attorney General) (2002) CanLII 427949 (on S.C.D.C), attention was drawn to the feelings of self respect and self worth associated with marriage: ‘the dignity of persons in same-sex relationships is violated by the exclusion of same-sex couples from the institution of marriage.’Similar views were held by the Massachusetts court in Hilary Goodridge v Department of Health 798 N.E. 2d 941 (Mass 2003) (Supreme Court of Massachusetts 2003) and South African court in Minister of Home Affairs v Fourie (1) SA 524 (CC) (Constitutional Court of South Africa, 2005):the capacity to choose to get married enhances the liberty, the autonomy and the dignity of a couple committed for life to each other. It offers them the option of entering an honourable and profound estate that is adorned with legal and social recognition, rewarded with many privileges and secured by many automatic obligations (para. 16).While these jurisdictions did not offer an alternative to marriage like the civil partnership, it demonstrates that the petitioner in Wilkinson v Kitzinger was not alone in the amount of importance she attached to the symbolic status of marriage. Rainscourt comments that:whilst this may only be a linguistic difference [between marriage and a civil partnership], this couple chose to marry and enjoy all the social recognition which accompanies that state, and […] this should not be denied them (2006: 152).In addition to criticism of Sir Mark Potter’s failure to attach adequate weight to the symbolic differences, his methods of justification for the difference in treatment have also been questioned. The case of Karner v Austria (2003) 38 EHRR 14 states that if there is a difference in treatment based on grounds of sexual orientation, particularly serious justification is required. Although in principle, protection of the family in the traditional sense is a ‘weighty and legitimate aim,’ it is necessary to identify which element of the traditional family is being protected (Ghaidan v Godin-Mendoza [2004] UKHL 30). Sir Mark Potter identified these as the protection of the traditional family as the most ‘desirable form in which to create and bring up children’ and the protection of ‘marriage in the traditional sense.' (para. 118). These will be considered in turn.While it cannot be disputed that many marriages involve procreation, this is not its only purpose.It is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine quo non of civil marriage (Hilary Goodridge v Department of Health 798 N.E. 2d 941 (Mass 2003) (Supreme Court of Massachusetts 2003)).Procreation is not a prerequisite of marriage (Goodwin v UK [1996] ECHR 16). Heterosexuals are not prohibited from marrying simply due to infertility or impotence. Further, same-sex couples can become parents through artificial insemination, intercourse with a third party or adoption. It is not a condition that any child of the family is biologically linked to both parties as this may often be the case following infidelity or artificial reproduction. Therefore, the inability to conceive a child naturally, which is biologically linked to both partners, cannot be grounds for denying same-sex marriage. Further, by permitting same-sex couples to marry, heterosexual couples would not cease to reproduce (Halpern v Canada (Attorney General) (2002) CanLII 427949 (on S.C.D.C)). Therefore, justifying the prohibition of same-sex marriage for the purpose of ensuring procreation has no logical basis.[4]Regarding the argument that an opposite-sex environment is the best environment in which to bring up a child, there has been no conclusive evidence to support this view. In fact, research has concluded that there are no negative effects on the development of children with same-sex parents (Tasker, 2007). Further, Parliament now permits same-sex couples to adopt so cannot argue that they do not make good parents. Therefore, any argument based on this ground would appear unfounded (on this point see also Halpern v Canada para. 121).In considering the second justification, the protection of ‘traditional marriage,’ the first question must be why the marriage to be protected is ‘heterosexual.’ One argument is that marriage was traditionally a religious institution.[5] However, as the courts stated in Minister of Home Affairs v Fourie, while many see a religious dimension to marriage ‘this is not something that the law is concerned with.’A second argument is that marriage has traditionally always been between a man and a woman so this tradition should continue. The argument that marriage ‘just is heterosexual because it always has been’ was strongly rejected in Halpern v Canada as it side-steps the issue. Allen identifies that:the fact that marriage has not included same-sex couples in the past does not explain why that cannot be so now anymore than anti-miscegenation laws that prevented interracial couples from marrying justified continuation of those laws (1996: 619).Murphy suggests that:a major cause of the current tendency to give Article 12 a heterosexist interpretation is the fact that it is being read through culturally conditioned heterosexist eyes (2004: 253).It may be argued that by altering the composition of marriage, the cultural meaning of marriage will be lost. However, Norrie points out that the same argument could equally have been argued in favour of prohibitions against inter-racial marriage (Norrie, 2003),[6] which the majority now recognise as wrong. He suggests that ‘traditional marriage is, in reality, an ever-evolving beast.’ Discrimination should not be preserved simply on the grounds that it has ‘always been that way.’ We now recognise that views held in the past are wrong by today’s standards. Therefore, there does not seem to be any justification for retaining marriage as a purely heterosexual institution simply based on its previous cultural meaning.Even if the protection of heterosexual marriage was a legitimate aim, as Baroness Hale identifies:no-one has yet explained how failing to recognise the relationships of people whose sexual orientation means that they are unable or strongly unwilling to marry is necessary for the purpose of protecting or encouraging the marriage of people who are quite capable of marrying if they wish to do so (M v Secretary of State).A heterosexual person would not choose to marry a person of the same sex just because such marriages were permitted, because their sexual orientation dictates that they would want to marry someone of the opposite sex. Therefore, the prohibition of same-sex marriage will not achieve the aim of protecting heterosexual marriage, as it will not reduce the numbers of heterosexuals who marry. In fact, Toerien and Williams (2003) identify that some heterosexual couples may actually be opposed to marriage because of the exclusion of same-sex couples. Therefore, if same-sex marriages were permitted, it may even have a positive effect on the numbers of heterosexual marriages.Further, even if the prohibition of same-sex marriage did have an effect on traditional marriage, how can such discrimination be proportionate in the pursuance of that aim? Sir Mark Potter considered the discrimination proportionate as the differences in treatment were merely symbolic rather than being any notable legal differences (para. 116). However, as identified in the Canadian case of Egan v Canada [1995] 2 S.C.R. 513:official state recognition of the legitimacy and acceptance in society of a particular type of status or relationship may be of greater value and importance to those affected than any pecuniary gain.By creating a legally equivalent but symbolically lesser institution for same-sex couples, Parliament has legitimised and even strengthened the discrimination between same-sex couples and heterosexuals. To have their state deny them of one of its fundamental institutions simply cannot be proportionate to the aim of protecting the 'culturally conditioned heterosexist' ideal (Murphy, 2004: 253) of the ‘traditional family,’ which no longer reflects the realities or values of modern society.It has been concluded that the argument that the prohibition of same-sex marriage is justified for the protection of the traditional family as the best environment for the creation and rearing of children, has no merit. Further, it has been argued that ‘traditional marriage’ should not be regarded as purely heterosexual, any more than it should be regarded as purely mono-racial and that even if this aim were legitimate, the legalisation of same-sex marriage would have no effect on its continued existence. Furthermore, formal state recognition of the symbolic differences between a heterosexual relationship and a same-sex relationship cannot be regarded as proportionate to the pursuance of such aims, simply because the difference in treatment is symbolic rather than legal.Crompton (2004) asks, ‘is this the lingering smell of homophobia?’ It would appear that in disproving the merit of the justifications put forward by Sir Mark Potter, the only remaining explanation for the prohibition of same-sex marriage is a continuing resistance to divert from the 'culturally conditioned heterosexist' view (Murphy, 2004: 253) that marriage can only ever be a heterosexual institution, which has no justification. For this reason, it is respectfully submitted that Sir Mark Potter erred in finding that the discrimination was justified and should have issued a declaration of incompatibility under s.4 of the Human Rights Act 1998 as the provisions appear to breach Article 14 when read in conjunction with Article 12. Notes[1] Erin Culley graduated from the LL.B at the University of Greenwich in October 2008. She is now undertaking a PGCE in secondary education at the Institute of Education, University of London, to teach Citizenship.[2] Sexual orientation is a recognised form of discrimination. See Salgueiro da Silva Mouta v Portugal (2001) 31 EHRR 47. [3] See Harding (2007) for a compelling argument on this point. [4] The procreation argument was also rejected in Halpern (n.38 at para. 121), Goodridge (n.49) and Fourie (n.50 at paras 85-87). [5] The religious element appears to continue to hold great weight with members of Parliament. As Jacqui Smith stated, ‘Members on both sides of the house understand and feel very strongly about specific religious connotations of marriage.’ Hansard, HC, 12 October 2004, Col. 177. [6] Comparisons with racial discrimination were also made in Halpern v Canada at para. 70. REFERENCESAllen, B. (1996), ‘Same-Sex Marriage: A Conflict-of-laws Analysis for Oregon’, Willamette Law Review, 32, 619-26Bamforth, N. (2007a), ‘”The benefits of marriage in all but name?” Same-sex couples and the Civil Partnership Act 2004’, Child and Family Law Quarterly, 19 (2), 133-60Bamforth, N. (2007b), ‘Same-sex partnerships: some comparative constitutional lessons’ European Human Rights Law Review, 47-65Cretney, S. (2006) Same Sex Relationships, from ‘Odious Crime’ to ‘Gay Marriage’, Oxford, Oxford University PressCrompton, L. (2004), ‘Civil Partnership Bill 2004: The Illusion of Equality’ Family Law, 34, 888-91Harding, R. (2007), ‘Sir Mark Potter and the Protection of the Traditional Family: Why Same Sex Marriage is (Still) a Feminist Issue’, Feminist Legal Studies, 15, 223-34Kirby, R. (2007), ‘Equal Treatment of Same-Sex Couples in English Family Law?’, Family Law, May 2007, 412-13Murphy, J. (2004), ‘Same-sex Marriage in England: a role for Human Rights?’, Child and Family Law Quarterly,16 (3), 245-60Norrie, K (2003), ‘Would Scots Law Recognise a Dutch Same-sex Marriage?’, Edinburgh Law Review, 7, 147-48Rainscourt, K. (2006), ‘The Limitations of the Civil Partnership Act 2004: an analysis of cross-border recognition of same-sex marriage’, Civil Justice Quarterly, APR, 150-54Tasker, F. (2007), ‘Reviewing Lesbian and Gay Adoption and Foster Care: the Developmental Outcomes for Children’, Family Law, 473-570Toerien, M. and A. Williams (2003), ‘ III. In Knots: Dilemmas of a Feminist Couple Contemplating Marriage,’ Feminism & Psychology, 13 (4), 432-36Wintemute, R. (1997), Sexual Orientation and Human Rights: The United States Constitution, the European Convention and the Canadian Charter, New York, Clarendon PressWright, Wade K. (2006), ‘The Tide in Favour of Equality: Same-Sex Marriage in Canada and England and Wales’, International Journal of Law, Policy and the Family, 20 (3), 249-85 To cite this paper please use the following details: Culley, E. (2008), ‘Justified Discrimination? A Critical Analysis of the Decision in Wilkinson v Kitzinger [2007] 1 FLR 296', Reinvention: a Journal of Undergraduate Research, Volume 1, Issue 2, http://www2.warwick.ac.uk/go/reinventionjournal/issues/volume1issue2/Culley Date accessed [insert date].© Reinvention: a Journal of Undergraduate Research (2008). Full copyright remains with the author. |

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Back to top of page Legislation as it exists since the Civil Partnership Act-2004

"Contemporary marriage cannot be legally defined any more precisely than as some sort of relationship between two individuals, of indeterminate duration, involving some kind of sexual conduct, entailing vague mutual property and support obligations, a relationship which may be formed by consent of both parties and dissolved at the will of either." J. Herbie DiFonzo - Legislating in the Shadow of Nature - The Good Society 11:3 The Good Society 11.3 (2002)

The concept of marriage has never been strictly defined, whether polygamist or monogamous marriage as an institution varies greatly over the world, and is always a cause of contention, mainly due to its religious connotations. A religious battle is in our midsts obscured by a fog of social complexity and political dogma, nevertheless this is a religious battle escalating in the UK and European courts, between the old Conservative dogma, based on obscure Biblical lines like that man "not lie with mankind, as with womankind” and Unitarian Universalism, a modern religious liberal tradition.

" (Leviticus 18:22
Gay and straight couples must be free to choose the same legal bonds By Peter Tatchell, human rights campaigner
The Guardian - Comment is Free - London - 1 July 2011 http://tiny.cc/jihxb New York’s legalisation of gay marriage is symptomatic of a global trend. From South Africa to Canada, Argentina, Portugal and beyond, same-sex marriage is becoming a fact of life and law.
Marriage equality is now the focus of many lesbian, gay, bisexual and transgender (LGBT) campaigns worldwide. It is fast becoming the litmus test in the battle for equality.
How ironic. At the very moment that heterosexual couples are deserting marriage in droves, lesbian and gay couples are rushing to embrace it.
Straight partners are falling out of love with matrimony. Provisional statistics for England and Wales show that the number of marriages in 2009 was the lowest since they were first calculated in 1862. http://www.statistics.gov.uk/pdfdir/mar0311.pdf Far from weakening or undermining marriage, as homophobes claim, many same-sex couples seem hell-bent on shoring up an institution that is, for many heterosexuals, failing, discredited and irrelevant.
While the push for same-sex marriage is an issue of equality, which I support, it also signifies the rising conservatism of the LGBT community and a loss of radical vision. It reeks of assimilationism and conformism with the straight status quo.
As we celebrate Gay Pride in London this Saturday, with calls for marriage equality, the sceptical, questioning attitudes of the early lesbian and gay liberation pioneers will be almost entirely absent.
Marriage has a long history of sexism and patriarchy; being originally devised to ensure the male sexual control of women and the inheritance of property through the male line, from father to son. Even the language of marriage is misogynistic. An alternative meaning for the word husband is ‘to manage’, which sums up the relationship between men and women in many marriages, past and present. Traditionally, the father of the bride gives away his daughter to her husband-to-be, symbolising the passing of women from one man to another. For all these reasons, I am not a great fan of marriage.
Indeed, I have proposed a new, more egalitarian and flexible system of relationship recognition and rights – what I have called a Civil Commitment Pact (CCP). http://tiny.cc/s85tj Under this CCP system, which seeks to recognise all relationships of mutual care and commitment, an individual could nominate any ‘significant other’ person in their life as their next of kin and beneficiary. In the case of a couple, they would be able to select from a menu of rights and responsibilities to create a CCP that is tailor-made to their particular circumstances and needs; thereby accommodating the wide range and diversity of modern relationships.
Speaking personally, I would not want to get married. I agree with the feminist critique. However, as a human rights campaigner, I strongly and actively defend the right of others to marry, if they wish.
Moreover, the ban on same-sex marriage is homophobic discrimination. All discrimination is wrong and should be opposed. Since marriage exists, it ought to be open to everyone.
For these reasons, despite my reservations about the institution of marriage, I am coordinating the Equal Love campaign - www.equallove.org.uk – which seeks to end sexual orientation discrimination in both civil marriage and civil partnership law. It is a simple issue: equality for all.
Under current UK legislation, gay couples are banned from civil marriages and heterosexual couples are banned from civil partnerships. The homophobia of the ban on same-sex civil marriages is compounded by the heterophobia of the ban on opposite-sex civil partnerships. Two wrongs don’t make a right. Arbitrarily excluding straight couples from civil partnerships is just as reprehensible as denying gay partners access to civil marriage.
Imagine the outcry if the government banned black couples from getting married and offered them civil partnerships instead. Most people would condemn separate laws for black and white people as racism and apartheid, like the legislation that once existed in South Africa.
Well, in Britain today, black couples are not banned from marriage but gay couples are. Legally, this is a form of sexual apartheid – one law for gay couples and another law for heterosexual partners. In a democratic society, we should all be equal before the law.
To challenge this discrimination, eight British couples - four gay and four heterosexual - filed a joint legal application to the European Court of Human Rights on 2 February, seeking to overturn the twin bans on gay civil marriages and heterosexual civil partnerships. http://tiny.cc/4qx66 We are confident that the European Court will eventually rule in our favour. But we’d much prefer the government to bring forward legislation of its own free will, to put right an obvious inequality.
The British people are ready for change, with a clear majority in favour of allowing same-sex partners to marry. A Populus poll for the Times newspaper in June 2009 found that 61% of the public believe that: “Gay couples should have an equal right to get married, not just to have civil partnerships.” Only 33% disagreed. http://tiny.cc/ipsqv The deputy Prime Minister Nick Clegg and London Mayor Boris Johnson back marriage equality, as do the leaders of Labour and the Greens, respectively Ed Miliband and Caroline Lucas. Only David Cameron is holding out against same-sex marriage rights. What is he afraid of?
Family Relationships and the Law:
Civil Partnership The Baroness Deech of Cumnor DBE, Gresham Professor of Law
16/3/2010
It has been estimated that some 5% of the population is gay. From the Buggery Act 1533 until 1861 some homosexual activity (albeit always limited to men) carried the death penalty. We recall the famous case of the Marquess of Queensberry whose accusations against Oscar Wilde led to the latter's being charged and convicted in 1895 to two years' hard labour. Only half a century ago homosexual activity was still a crime. In 1953 2267 men were prosecuted for homosexual offences; in 1956 118 out of 300 convicted men who were in a consenting relationship were sent to prison. In those 50 years or so homosexuality has moved from criminal status to legalisation, from legalisation to acceptance and equal respect with heterosexual relationships. (On this history, see S. Cretney,Same Sex Relationships (OUP 2006)). Liberalisation came, as ever, in the form of a Report by a member of the establishment, in that period when so much changed, the late 1950s and the legislative reform period of the 1960s. The Wolfenden Report of 1957 opined that "there should remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business" (para 13.) John Wolfenden was Vice Chancellor of Reading University, in the very town where Wilde had been incarcerated. His recommendations led to the Sexual Offences Act 1967 which legalised homosexual acts in private between consenting adults.
Since then acceptance and recognition has grown, advanced by the Human Rights Act 1998 and the Equality Bill 2010. Gay couples may adopt children (Adoption and Children Act 2002); they have access to fertility services and full parentage of donor conceived children (Human Fertilisation and Embryology Act 2008). Same sex childless couples are deemed to be a "family" for the purpose of succeeding a deceased partner to a tenancy (Fitzpatrick v Sterling Housing Association [1998] Ch.304). This trend culminated in the legislative establishment of civil partnerships in the Civil Partnership Act 2004, creating a union almost identical to, but not marriage.
The Equality Bill of 2010 will further protect such rights. There has been such a sea change that the Conservative leader has promised that civil partners will benefit from extended paternity and maternity leave (in the case of adoption or artificial insemination babies) in the event of an election victory. The Tory leader also promised that proposals to extend flexible working and married couples- tax breaks would be granted as well. He has stated that the party is no longer hostile to same sex couples. The question now is not the public acceptance of the union of two people of the same sex, but whether this legally recognised union should be called marriage and be exactly the same as marriage.
The famous legal definition of marriage is given by Lord Penzance in the case of Hyde v Hyde [1866] LR (1P&D) 130 (HL): "I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others." Such is the transformation of family law and family life that not one word of this remains true. Christianity is not the only form of marriage nor the only concept accepted; marriage is not for life but only until one or other party exercises rights under divorce law; it is not to the exclusion of all others in the sense that not all adultery leads to divorce and some polygamous marriage are allowed to exist here when the family has come from a country abroad where it is recognised; only the voluntariness of the union remains and even that is under threat if cohabitation is placed under a legal regime. And now it is the one man and one woman element that is ceasing to matter.
It is, however, odd that same sex couples, or some of them, should be so exercised about wanting the right to marry, as distinct from entering civil partnerships, which are just as replete with rights and responsibilities as marriage; for this is an age when heterosexual couples are apparently deserting marriage in favour of cohabitation, and when we are told that marriage is nothing but a piece of paper, which may be ignored or overlooked; or that it is a male plot to dominate women and preserve free household labour and childcare, a cloak for abuse and overwork. Some feminists do not like marriage, because it stands for the power of a man, privileged status, the privatisation of care, the cult of romance and opportunity for domestic violence (albeit that their claims for money from the man when the marriage or cohabitation ends are unabated.) Yet their lesbian sisters want to be able to choose to get married. Many same sex couples today reject the notion that civil partnerships are different but equal, rather as American blacks rejected that same equivalence ('separate but equal') in the days of segregation. The concept was overturned by the civil rights movement.
The differences are fast dwindling. Marriage is no longer defined as related to procreation, for many heterosexual couples do not or cannot have children, whereas many same sex couples do, either from a previous relationship or by donor insemination or other artificial reproductive technology. Marriage has declined in numbers: remaining single is more acceptable than it used to be. Both Labour and Conservative governments have incrementally removed the differences between married, cohabiting and same sex couples by e.g. removing the tax allowances for married couples, allowing singles and same sex couples to adopt, extending domestic violence legislation to all couples, calculating benefits by household occupation rather than status, extending occupation rights to partners and parental responsibilities to all categories of persons. A marriage certificate is not required for partners- rights in relation to banks, income tax, pension schemes, gym membership, hospital decisions. Judges tend to agree that giving rights to same sex couples does not harm the concept of marriage and indeed, they are rather cynical about marriage itself. Said Lord Millett in Ghaidan v Godin-Mendoza [2004] UKHL 30, a case about the right of a gay partner to succeed to a protected tenancy, "Marriage is the lawful union of a man and a woman . . . this is the very essence of the relationship, which need not be loving, sexual, stable, faithful, long lasting or contented." A persuasive alternative view is presented below, coming from S Africa, but it has also been argued that the desire for the marriage facility is odd. Despite the crumbling of the once sacred image of marriage, same sex couples want to enter that status, although one may wonder whether it is in order to reform it, as feminists have called for, or to capture the "fantasy", as it has been called, for themselves. Some writers are surprised that same sex couples want to consider marriage, because it is a devalued relationship, not worth bothering about and too outmoded. The argument against this will be presented shortly.
Parliament has legislated for civil partnerships. They are different from marriage in just two respects. A civil partnership can only be civil, never religious, as a marriage may be. And adultery is not a ground for dissolution of a civil partnership, nor is consummation a criterion for validity, either because of the difficulties of definition or, as some have alleged, because notions of fidelity are deemed to be different in same sex relationships. Infidelity could be subsumed under unreasonable behaviour as a ground for seeking dissolution even though not available in its own right. (E. Davies, "The Marriage Debate" (July 1999) Stonewall Newsletter).
It has been argued that many heterosexual unions would happily dispense with religious possibilities and the ground of adultery too, and that what one should do is make marriage more like civil partnerships rather than the other way round. The number of weddings has fallen to a record low since the late 19th century; it seems that people no longer care for these types of formalities, because religion is a waning force, women have financial independence, there is state support for lone parents, children are no longer classified as illegitimate, divorce is easy and there is no recrimination over sex and birth out of wedlock. Finding the essence of marriage as traditionally understood and how it might be different from a civil partnership is difficult in these circumstances. Nevertheless the fact that a civil partnership is designated as not marriage seems to some commentators to indicate that it is inferior.
The CPA 2004 provides for the registration of a union between two persons of the same sex, with qualifications like a registry office marriage. They must not be under 16, or within the prohibited degrees, or already married or in another civil partnership. They are qualified to adopt, can become step parents of the children of the other, can apply for residence and contact orders in relation to children, and financial provision for themselves and children on dissolution of the union; there is provision for wills, birth registration, tenancies and social security as if married. Under s.27 the court can make a dissolution order where the partnership breaks down, or annul it if it is void or voidable. Like married couples, there can be no dissolution until one year after the union. There can be residential home orders, non molestation orders, pension splitting and property orders. I know of no reported cases; but 180 civil partnerships were dissolved in 2008 compared with 42 in 2007, and most involved female couples, according to 2009 figures from the Office for National Statistics. I imagine there may be difficulty in assessing the proper financial provision to be made on dissolution because the usual judicial assumptions about economic dependence cannot be made. In 2006 18059 civil partnerships were entered into, in 2007 8728 and in 2008 7169, and a total of 33,956 since the Act of 2004. In 2008 men made up 53% of those forming civil partnerships, with the largest number being registered in Westminster and Brighton.
The issue now is whether human rights legislation means that same sex couples can require their unions to be entered into by marriage and be marriage. At the moment the prohibition remains - s. 11(c) of the Matrimonial Causes Act provides that a valid marriage can be entered into only by a male and a female. This might be said to be inconsistent with the articles of the Equality Bill that prohibit discrimination in areas of family and private life and between the sexes. If so, is it for the judges or for Parliament to take that final step for same sex couples? The religious factions have fought successfully for their existing exemptions to be retained in the Equality Bill 2010, in order that they may make choices determined by faith in employment and services offered.
At the last minute in its passage, however, and promoted by a defender of gay rights and religious supporters, there was an amendment that would permit churches, if they wished to, to allow same sex couples to have a ceremony in church. The House of Lords voted for this by a substantial majority, and it remains to be seen whether MPs will follow suit. Amendment 53 to the Bill, moved by Lord Alli and supported by Baroness Butler-Sloss, provided that a new clause should be inserted in the Civil Partnerships Act 2004 to remove the prohibition on civil partnerships taking place in religious buildings and put in the necessary regulations to allow religious buildings to be use to host civil partnerships. But the amendment expressly does not oblige religious organisations to allow civil partnership ceremonies in their buildings. The debate recognised that Liberal Jewish congregations, Unitarians and Quakers were prepared to do this, but it was likely that many Church of England and most Catholic churches would not. The opposition arguments were that the law so far had carefully preserved the distinction between civil partnership and religious or civil marriage and that this amendment would blur the difference without explicitly raising the question. The other objection was that once such religious settings for civil partnership celebrations were permitted, it would be regarded as discriminatory on the part of an individual vicar to refused to hold such a ceremony in his church, because he, the vicar, was availing himself of the right to refuse in the amendment, but that he could undertake the ceremony and was therefore open to legal action on the ground that he was discriminating on the grounds of sexual orientation in the provision of services. The charge of discrimination by an individual would trump the exemption in the amendment. The legal detail of the amendment means that the partnership may be celebrated but still not along religious lines, for that is still not allowed under the Civil Partnerships Act; it is not clear whether an individual registrar with objections would be able to opt out of performing a ceremony at religious premises, and whether the decision to allow the use of religious premises would belong to the church or the individual religious officiant. The Government indicated little support, wanting more open discussion on the whole topic. But given the shortness of time before the general election and the rush to get the Equality Bill through both Houses before dissolution, it may be that the amendment is accepted.
It must then follow as a matter of logic and non-discrimination that a heterosexual couple who reject the notion of marriage whether in church or in a registry office, should also have the option of a civil partnership. Tom Freeman and Katherine Doyle challenged in 2009 the ban on opposite-sex civil partnerships by asking for one at their local registry office. Having been refused they are preparing to go to the ECHR on breaches of arts. 8, 12 and 14.
S.3(1) of the HRA 1998 requires statutes to be interpreted as far as possible in the light of human rights but if the statute prevents this, then the judges can only note the incompatibility and leave the change to the legislature. Art 8 requires respect for private and family life and Art 12 protects the freedom of men and women to marry and found a family. The articles are subject to qualification, in that the government must not interfere with the rights, and that any restriction on them in national law must be justifiable as proportionate and necessary; and the European court allows each nation some flexibility to express its national customs - the margin of appreciation. The European Court judgments have not, so far, gone beyond recognising same sex couples' private life, and stopping discrimination against them in that area. The Court has not extended its reach into the way states treat same sex couples as a public issue or status. So the Court has disapproved of discrimination against individuals in for example child custody decisions or the criminalisation of homosexuality, and accepts that sexual orientation is a ground of discrimination open to attack under Art 14. But Art 14 only prohibits discrimination on various grounds where a substantive right in the Convention is in issue, and so far the court has not raised the issue of the public standing of same sex unions (Karner v Austria [2003] FLR 623.)
There have been two major cases in our courts on the status of same sex couples since the HRA. The first was Ghaidan, which I have already mentioned, before the House of Lords. It concerned the right to take over a protected tenancy after the death of the tenant, who in this case had been the male partner of the claimant. The Rent Act 1977 permits this when the claimant was living with the former tenant as husband or wife. In the Fitzpatrick case, already mentioned, it had been held that this right did not extend to same sex couples, although they could be treated as "family" for the purposes of the Act. This new case was an effort to overturn that decision, now that the Human Rights Act was in force. The claimant based his claim on Art 8, the right to a private and family life, coupled with Art 14, that there should be no discrimination in the rights granted by the state. The majority of their Lordships could find no good reason for treating the same sex partner of the tenant any differently from the opposite sex partner when it came to succession, and held that the law should be interpreted so as to avoid that sort of discrimination. Baroness Hale said that "homosexual relationships can have exactly the same qualities of intimacy, stability, and interdependence that heterosexual relationships do". 'some people, whether heterosexual or homosexual, may be satisfied with casual or transient relationships. But most human beings eventually want more than that. They want love. And with love they often want not only the warmth but the sense of belonging to one another which is the essence of being a couple. And many couples also come to want the stability and permanence which go with sharing a home and a life together, with or without the children who for many people go to make a family. In this, people of homosexual orientation are no different from people of heterosexual orientation." Clearly when it comes to housing there could be no objective justification for treating these couples differently.
The next case was that of the marriage in Vancouver in 2003 of Professor Celia Kitzinger, Director of the Feminist Conversation Analysis Unit of York University (author of The Social Construction of Lesbianism), and Sue Wilkinson, Professor of Feminist and Health Studies at Loughborough University. They were married six weeks after same sex marriage was legalised in British Columbia. They came to the UK and wanted the Canadian marriage recognised as such here. They sought from the court a declaration under s.4 of the Human Rights Act that s. 11(2) of the Matrimonial Act, which provides that a marriage must be of a man and a woman was incompatible with Arts. 8, 12 and 14 of the Convention on Human Rights; likewise s.215 of the Civil Partnership Act providing that relationships formed overseas, even if regarded as marriage there, would be treated as civil partnerships in the UK, ie not marriages. The consolation prize, they said, of a civil partnership was offensive and demeaning; they did not accept that those unions were separate but equal, because they are not equal symbolically or internationally. The lost the case [2006] EWHC 2022. The President of the Family Division held that there was no breach of Art 8, the right to a private life, because a civil partnership would give them all the benefits of marriage save the name. No Strasbourg case had held that childless same sex couples amounted to a family for those purposes. He held that there was no breach of the right to marry in Art 12, because it specifies men and women, or even if it could be otherwise interpreted (bearing in mind the marriage rights of transsexuals, which I will deal with shortly), this was still an area where national law could determine who could marry whom, and there could be justification for discrimination.
In the passage of the few years since this judgment, it is possible that societal views have shifted sufficiently so that an appeal on the same grounds might have a different outcome. Whatever might be held, one still concludes that English law has lost any clear concept of marriage. I have pointed out how the differences between marriage and cohabitation, marriage and civil partnerships have been eroded; but in my last lecture I also found it inequitable that sisters, living at least as companionably and interdependently as any two same sex partners, are denied any sort of benefits. Children are no longer the touchstone of marriage or legally recognised unions; nor is fidelity, or the same household. One is left with the conclusion that the only relationship that English law protects is sexual - the mistress who may claim from the estate under the Inheritance (Provision for Family and Dependants) Act 1975; the civil partner, the spouse, and sometimes the cohabitant. The family member, the carer, the grandparents and siblings, they are pushed back behind the veil and left to their own devices.
Transsexuals, of whom it is estimated there are 2000 in the UK, also have new rights. Originally they were treated as forever legally the gender which appeared on the birth certificate, which could not be altered. The leading case was Corbett v Corbett [1971] P. 83. Arthur Corbett married April Ashley in 1963, knowing that April had had surgery in Casablanca to reassign her from male, George Jamieson as she was born, to female. After living together for 14 days the future Lord Rowallan sought to have the marriage annulled, and succeeded. Ormrod J, a judge with medical qualifications, held that the determination of sex at birth by chromosomes was unchangeable and that April was still a man in the eyes of the law. So the law remained until very recently.
In Bellinger v Bellinger [2003] UKHL 30, the House of Lords declared that s.11(c) of the Matrimonial Causes Act limiting marriage to men and women was incompatible with Arts. 8 and 12 of the ECHR in so far as it made no provision for recognition of the right to marry of a person who had changed sex. This led to the Gender Recognition Act 2004. This followed the case of Christine Goodwin v UK before the European Court of Human Rights (2002) 35 EHRR 447. Ms Goodwin had been born male but had had gender reassignment surgery on the NHS and was now a woman. While a man she had been married, and had children but was now divorced. She alleged discrimination in that her birth certificate remained that of a man, and precluded her or embarrassed her in matters relating to pensions, social security, insurance and so on. And of course she could not marry a man. The court found that Arts 8 and 12 were breached by the law in England as it stood then. The Gender Recognition Act 2004 allows transsexuals a new birth certificate and gives them all the rights and status of the new sexual identity. The descent of peerages is excepted and clergymen of the C of E may refused to marry transsexuals on grounds of conscience. A Gender Recognition Panel has to certify that the person has changed sex, and has spent 2 years in the new sexual identity. By the end of 2008 102 certificates had been issued. The anti-discrimination provisions of the Equality Bill 2010 extend to transsexuals.
Other countries face the same issues and reach different solutions. Same sex marriage is permitted in S Africa, Mexico City, Holland, Ontario, Quebec, British Columbia, Spain. In Israel a same sex marriage entered into elsewhere may be registered as such, although not recognised for all purposes (Ben Ari v Director of Population Administration in the Ministry of the Interior HCJ 3045/05). The most interesting case is that of Massachusetts, that most liberal of all US states. Julie and Hillary Goodridge and 6 other same sex couples attacked the constitutionality of the state ban on same sex marriage. In its judgment (Goodridge v Dept of Public Health (2003 798 NE2d 941) the court agreed that there was no constitutionally valid reason for denying marriage to same sex couples and gave the legislature 180 days to change the law to rectify the situation. It did not. Over 6000 couples rushed to take advantage of the new permission to marry, 2/3 of whom were women. The legislature responded by supporting a constitutional amendment prohibiting same sex couples from marrying but enabling civil unions; this failed to pass, as did other legislative bills, with the result that same sex marriage is legal in Massachusetts until 2012 at least, when further laws may be introduced. These marriages are not necessarily recognised in other states however, because of the Defense of Marriage Act 1996, enacted by President Clinton, which says that states need not recognise same sex marriages valid in other states, an exception to the general rule whereby states recognise each other's acts. At the moment Connecticut and Iowa have same sex marriage and a few states have civil unions, but the majority do not have provision for same sex unions. In essence therefore if a same sex couple marry in Massachusetts, in a perfectly legal ceremony, they are married in Mass. for state purposes but not so in many other states and not so for federal law purposes. Under US federal law, a marriage is defined as a man and woman relationship. Nevertheless a successful legal challenge to this going all the way to the Supreme Court looks likely and with good chances of success. Californian voters approved Proposition 8 in 2008, which decreed that only marriage between a man and a woman should be recognised in that state. The Californian Supreme Court rejected a constitutional challenge to the validity of the Proposition, and constitutional attempts to overturn it have so far failed, but the situation seems likely to head to the US Supreme Court too.
The most powerful and far reaching judgment yet given is in the S African Constitutional Court case of Home Affairs v Fourie (2005). It was given by Justice Albie Sachs, himself a hero of the fight against apartheid, and perhaps all the more moving and persuasive for that. It is vital reading but time allows for the citation of only a few sentences in a judgment that held that the denial of marriage to persons of the same sex was a breach of their equality rights under the S African constitution. He said at para. 71
"The exclusion of same sex couples from the benefits and responsibilities of marriage, accordingly, is not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. It represents a harsh if oblique statement by the law that same sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples. It reinforces the wounding notion that they are to be treated as biological oddities, as failed or lapsed human beings who do not fit into normal society, and, as such, do not qualify for the full moral concern and respect that our Constitution seeks to secure for everyone. It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples. It should be noted that the intangible damage to same sex couples is as severe as the material deprivation. To begin with they are not entitled to celebrate their commitment to each other in a joyous public event recognised by the law. They are obliged to live in a state of legal blankness in which their unions remain unmarked by the showering of presents and the commemoration of anniversaries so celebrated in our culture. It may be, as the literature suggests, many same sex couples would abjure mimicking or subordinating themselves to heterosexual norms. Others might wish to avoid what they consider the routinisation and commercialisation of their most intimate and personal relationships, and accordingly not seek marriage or its equivalence. Yet what is at issue is not the decision to be taken, but the choice that is available. If heterosexual couples have the option of decising whether to marry or not, so should same sex couples have the choice as whether to seek to achieve a status and a set of entitlements and responsibilities on a par with those enjoyed by heterosexual couples. It follows that, given the centrality attributed to marriage and its consequences in our culture, to deny same sex couples a choice in this respect is to negate their right to self definition in a most profound way." Note that there was no civil partnership in S Africa and that the court then called on Parliament to change the law, failing which the Marriage Act would be read henceforth as allowing same sex marriage, although the churches would not have to perform the ceremonies if they objected.
There are two issues in all this which give me unease, and I have referred to them publicly before in the context of the amendments in 2008 to Human Fertilisation and Embryology law. One is the new possibility of birth certificates for children born to couples of the same sex, naming two persons of the same sex as their parents. This is logical following on the extension of rights to same sex couples, but there is an issue of principle here, which is the truth. Sections of the 2008 Act even allow a dead woman, never known to the baby and not related, to be named with her previous consent on the birth certificate by the choice of the birth mother, while preventing the child from having a father. Birth registration is about genetic inheritance (albeit that sometimes the truth is not told) and about the welfare of the child, not about the relationship, legal or otherwise, between the adults whose will gave rise to it. The birth certificate that names two female parents will disclose to anyone perusing it that the child was necessarily born from donor sperm or a donor embryo or a surrogate mother. The facts and circumstances apparently accompanying this will be broadcast wherever the birth certificate has to be produced - government agencies, passport offices, schools and so on; to gain nationality and overseas. (There is of course the option of the short birth certificate which does not name parents at all, as a way around this.) It could even result in deception to exclude the natural father where the mother conceived naturally but uses this provision to cut him out of the child's life. There are other ways for two adults of the same sex to gain parental responsibility over a baby and it should not have been the birth certificate. It puts the demands of the adults ahead of the rights of children to know and benefit from both sides of their genetic makeup. It sits uneasily with the ending of donor anonymity in reproduction generally, and for the call for mothers to name fathers on birth certificates.
Not all unions between two adults can be the same, or must be treated the same, for all purposes. UK law does not recognise for example underage, incestuous or polygamous marriages. If two parties of the same sex have to seek legal responsibility for a child, the court will at least consider the welfare of the child; it should not rest on the fact of birth registration. Arts 7 and 8 of the UN Convention on the Rights of the Child provide for the right to know and be cared for by both his/her parents; and the right of the child to preserve his or her identity. These rights are threatened by the provisions of the HFEA 2008. This is not a moral issue; it is about disguising true facts, and it is about confusing biological parenthood, legal and social parenthood. Civil partnerships do still differ from marriage a little, and this is an area where the difference ought to be preserved with justification. Titles of honour are exempted from the new provisions about registering two people of the same sex on the birth certificate; if it is important to preserve the truth for titles, then it is important for everyone else. Birth certificates are about origins, not statements of commitment. The breach in this principle occurred some time ago when as a result of donor insemination practices, the name of the husband, who had consented to the practice, is entered on the birth certificate, and not the name of the sperm donor, who remains anonymous in any case for the time being. This highlights the need for a fresh and comprehensive review of the function that birth certificates should be carrying out: genetic records, statements of legal responsibility for children or records of partnerships.
The other area of regret for me is the removal from the law of the provision in the HFEA 2000 that when a doctor is considering whether or not to give infertility treatment to a woman, he or she had to consider the welfare of the potential baby, "including the child's need for a father." It was removed on the ground that it was discriminatory against single mothers and lesbians, and replaced by the need to check for 'supportive parenting', whatever that may mean. Reproductive services are in fact quite readily available to single women and it is thought that about 25% lesbian couples have children. I regret the downgrading of the father as a person of importance - the legislative dismissal of the contribution of half the population to the upbringing of the next generation. The removal of the requirement to consider the need for a father is to make a fresh statement that the child does not need a father, no matter how liberally the old law's requirement was interpreted. It sends a message to men, at a time when many of them feel undermined as providers and parents, contrary to government policy in this field. Government policy is that men should take financial responsibility for their children and stay in touch with them after separation; that they should take paternity leave and be involved. There is a wealth of research showing that children need fathers, not just two parents. Children need to see complementary roles, the relationship between the sexes, a microcosm of society, as they grow up. Recent reports have placed Britain at the bottom of international league tables for the welfare of children and we know that boys without fathers do worse at school and turn to worse role models. Research shows that their presence gives girls as well as boys advantages in educational and social development. The research is onwww.care.org.uk/fathers. The limit to same sex relationships is that they cannot be a reproductive unit in a way that is best for the welfare of the child if they cut out all contact with members of the other sex or falsify the birth registration. Tolerance of both types of parenting has to be ensured. ©Baroness Ruth Deech, Gresham College 2010
Same-sex couples, different rules
16 September 1997 * Print * Email * Share * Comment * Save
Martin Bowley looks into the difficulties of affording gay relationships the same legal status as conventional marriages. Martin Bowley QC is a tenant at One KBW at 36 Bedford Row and president of the Bar Lesbian and Gay Group.

In spite of all the Government's pre-election statements of good intent, the only sign of movement in the area of gay rights has been the decision not to contest Morris and Sutherland - "the age of consent" cases - before the European Court of Human Rights. And that was only bowing to the inevitable.

It is generally accepted that an equal age of consent could have come in during the last Parliament. And, in spite of Labour front bench support in the House of Lords for the Sexual Orientation Discrimination Bill last year, the Government still found it necessary to argue in Luxembourg in Grant - the "Fares Fair" case - that it should remain lawful to refuse travel concessions to same sex partners even when they are available to spouses and opposite sex partners.

Surprisingly enough, it is the higher judiciary that has taken the lead in arguing the case for the basic human right of sexual equality, not radical politicians. Two years ago in Smith - the first "gays in the military" case - Lord Justice Simon Brown said in the Divisional Court: "The tide of history is against the Ministry. Prejudices are breaking down. Old barriers are being removed."

In the Court of Appeal Lord Bingham said: "There has, in this country, been a discernible trend over the last half century or so towards greater understanding and greater tolerance of homosexuals by heterosexuals, and towards greater openness and honesty by homosexuals".

In the same case, Lord Justice Henry commented: "Since 1967 there can be no doubt that public opinion has moved a very long way towards toleration and acceptance of homosexuals. There has been a growing recognition of the specific human rights of homosexuals, including rights in the workplace."

Earlier this year in Perkins - the second "gays in the military" case - Mr Justice Lightman said: "Homosexual orientation is a reality today which the law must recognise and adjust to, and it may well be thought appropriate that the fundamental principle of equality and the irrelevance of a person's sex and sexual identity demand that the court be alert to afford protection to them."

Shortly before the end of last term there came further powerful statements from the Court of Appeal in Fitzpatrick v Sterling Housing Association (see Litigation, page 11), in which it was held that the surviving partners in a stable and permanent homosexual relationship still cannot claim succession rights under the Rent Act in respect of premises of which the deceased partner was a protected tenant.

Lord Justice Waite spoke of "the modern acceptance of the need to avoid any discrimination on the ground of sexual orientation" and of the necessity for Parliament "to fulfil its function of reflecting the spirit of our times - in particular the spirit which recognises the value of all abiding relationships, the heterosexual, the lesbian, the gay."

Lord Justice Ward described the tide in favour of equality rolling relentlessly forward, and showing no sign of ebbing. Remarks such as these, from the most senior of judges, provide invaluable ammunition in the gay marriage/domestic partnership debate which is now very much part of the legal and social, if not yet political, agenda.

The UK is waiting for the final analysis of the 6,000 questionnaires received by the Stonewall Group in response to its partnership survey.

In Europe the Dutch are moving in the Scandinavian direction of registered domestic partnerships for lesbian and gay couples which early next year will provide virtually all the rights and responsibilities of marriage, except the right to adopt.

In the US the argument has developed in a very difficult way, driven largely by the Hawaiian case of Baehr v Milke, the Marriage Project of the Lambda Legal Defence and Education Fund and its director, Evan Wolfson. The backlash created by their efforts resulted not only in last year's federal Defence of Marriage Act, but also in the passage in 25 of the 50 states of legislation restricting marriage to different-sex couples or denying recognition to same-sex marriages.

In Hawaii the political debate has taken an interesting turn. In November of next year Hawaiian voters will be asked to support a constitutional amendment which, if adopted, will permit (but not require) the legislature to restrict marriage to opposite-sex couples.

As part of the political quid pro quo for getting that proposition on the ballot, the Hawaiian legislature approved a "reciprocal beneficiary relationship" law which has been said to provide "the most sweeping package of rights and protections ever offered to same-sex couples anywhere in the US."

The package includes health coverage, employment leave, joint tenancies, insurance and state pensions, and property inheritance without a will. About 60 such rights are included. But that is still less than half a loaf for, in Hawaii, civil marriage brings with it more than 160 rights. And, as a result of the Defence of Marriage Act, same-sex couples will still be denied all federal rights and benefits, including immigration rights and veterans' benefits.

In Hawaii, since 1 July, any couple over 18 who is unmarried and who cannot be married can fill in a simple one-page form and, on payment of eight dollars, receive a reciprocal beneficiary relationship certificate. Those entitled to a certificate include both same-sex couples and the immediate members of a family. Either party may terminate the relationship by submitting another form and a payment of a further eight dollars! It all seems too easy to be true. And it probably is. The debate is not just about rights. It is also about responsibilities. It is even more about the recognition of long-term committed and caring same-sex relationships by the rest of society.

Whether the ultimate answer is gay marriage or domestic partnerships, proof of personal commitment should be a necessary prerequisite. And the dissolution of such a partnership should be no easier than dissolving a marriage.

In neither case is eight dollars enough! When I first began writing on this topic, I argued that what matters is the contract and the commitment. The ceremony, I suggested, is largely irrelevant. I was wrong.

The public recognition of relationships - straight or gay - requires more than form-filling and cheque-signing. It will require a public ceremony of commitment, not necessarily even a civil marriage (though in due course that may well become an option on the basis of equality of sexuality). Only then will the rights and responsibilities to which such relationships are entitled receive the recognition they deserve.

One of the few eye-catching pieces of news during the political party conference season was the proposal that the law of marriage be extended to gay and lesbian couples.

We have come so far in social policy terms, since the introduction to Parliament of the Civil Partnership Bill in 2004.
The appetite for civil partnership amongst same sex couples has, in fact, been quite striking. A report published last month by the Office for National Statistics (“Civil Partnerships Five Years On”) found that, at the time of the preparation of the legislation in 2004, the estimated take up rate for the new status indicated that, by the end of 2010, there would be between 11,000 - 22,000 registered partnerships. The actual number was 42,778.
The report also revealed that the rate of break up or “dissolution” of partnerships is lower than the rate of divorce. Whilst the divorce rate remains high it is perhaps not surprising that more and more heterosexual couples have chosen to cohabit in the long term without ever marrying. Likewise, for those who do ultimately marry, co-habitation prior to marriage is now absolutely the social norm, even, please note, within the Royal Family!
The prevalence of cohabitation without marriage continues to present a range of problems for the couples concerned and an opportunity for advisers. Many couples assume that, if they part, they will have some sort of financial claim against each other (akin to ancillary relief upon divorce) or succession rights, if one of them dies.
In 2005 the Law Commission was tasked with investigating this difficult area and its report - “Cohabitation: The Financial Consequences of Relationship Breakdown” published in July 2007 made some radical proposals for reform which were broadly welcomed by family lawyers. The key idea was a new regime of property rights for cohabitants which would apply after a certain period of cohabitation; the suggestion was something between two to five years. However, these proposals have since been shelved.
Practitionerswill, therefore, need to continue to be alive to the particular needs of couples who cohabit without marrying. These couples, even more than spouses, need good advice on estate and tax planning; they need well drafted wills and advice about property co-ownership perhaps using an express trust.
It is also interesting to view the changing approach of HM Treasury to marriage and cohabitation as seen in the tax legislation. For example, the exemption from inheritance tax on assets passing between spouses has been extended to those in civil partnerships, whilst being denied to cohabiting couples. Yet for other tax purposes a couple living together as they were married (or in a civil partnership) are taxed like spouses.
Cohabiting couples who do decide to marry also need advice about making the transition. Apart from the obvious (e.g. the revocation of existing wills by marriage) there may be less obvious problems. For example, for capital gains tax purposes two cohabitants can each have a separate claim to principal private residence exemption. Upon marrying (or registering as civil partners) they can only have one claim. Another issue is the inheritance tax treatment of mixed domiciled couples where the very limited spouse exemption will have to be considered.
The authors will watch with interest to see whether the cohabitation reform proposals are ever revived and, more immediately, to see whether gay marriage is advanced to legislation. If it is, will the Civil Partnership Act have to be repealed? Marriage and civil partnership are so similar in law that, arguably, it makes little sense to allow gay couples the choice (a choice which heterosexual couples do not have). In the meantime, just as our political masters negotiate the tricky compromises of coalition government, so private client advisers will continue to steer their unmarried clients through the equally tricky business of cohabitation. An equal partnership
12 September 2005 * Print * Email * Share * Comment * Save
Julian Washington
With the introduction of the Civil Partnership Act, those in same-sex relationships will have the same privileges as heterosexual married couples. Julian Washington reports

The Civil Partnership Act (CPA) comes into force on 5 December. This radical piece of social policy legislation creates an entirely new legal status for same-sex relationships.
It is interesting to see how different countries have responded to the demand for same-sex partnership rights. A small group of countries, including most recently Spain and Canada, has allowed same-sex couples to marry. A larger group has decided instead to create a new legal status for same-sex couples. In this group, some types of partnership could be said to be marriage in all but name, while others are more restricted in terms of legal rights and responsibilities, such as the French Pacte Civile de Solidarité.
In the UK, civil partnership has been designed to be as close to marriage as possible. The first civil partnership ceremony in the UK is due to take place in Northern Ireland on 20 December; the first date in England, Wales and Scotland is 21 December (although earlier registrations are possible where one of the partners is terminally ill). An application must first be made at a local register office and will be followed by a short waiting period. The ceremony itself can take place at a register office or any secular venue licensed for the purpose. The act of registering as partners will be effected by signing a 'Civil Partnership' document in the presence of a registrar, each other and witnesses.
The rules do not provide for an exchange of vows or any of the other more poetic elements of a wedding ceremony, although in practice, most registrars will allow additions to an otherwise boring registration process. What will not be permitted is the setting of the registration within a religious rite.
So, how will the legal position of same-sex couples change if they register as civil partners?
Before civil partnership
Sarah and Angela are a lesbian couple who have cohabited for many years. The CPA is not yet in force. They live in a valuable house owned by Sarah, who had been briefly married to Keith; she and Keith had a son (Andrew) who is now 13 and lives with Sarah and Angela. Relations between Keith and the couple are strained.
Sarah dies unexpectedly. Fortunately, she and Angela made wills in favour of each other and Sarah's will states that Angela inherits the house for her lifetime, but then it passes to Andrew.
The problem here is inheritance tax. Existing law does not give any relief between unmarried couples, so on Sarah's death inheritance tax will be charged at 40 per cent on the whole estate over the tax-free threshold, currently £275,000.
Sarah's will named Angela as Andrew's guardian, but Keith wants Andrew to live with him. If they cannot resolve the dispute between them it may have to go to court. The Children Act 1989 allows an application for a residence order to be made by a person with whom the child has lived for three years or more and Angela would be able to apply to the court on that basis.
After civil partnership
Imagine instead that Sarah and Angela are both still alive and register as civil partners in December. They make new wills, as existing wills are automatically revoked upon registration.
Sarah then dies unexpectedly. Her will, as before, gives Angela the right to stay in the house for her lifetime. The inheritance tax legislation has now been amended so that spouse exemption (previously available only to married couples) is also available between civil partners. There is no inheritance tax liability on Sarah's death.
As regards Andrew, the act treats a civil partner as a step-parent of their partner's children. Angela would still need to apply to the court if she and Keith disagreed on Andrew's future.
The marriage comparison
Civil partnerships are close to marriage in many respects. For example, the procedure for the dissolution of a civil partnership is modelled closely on divorce law. The most important difference is in the grounds upon which dissolution can be sought. One of the grounds for divorce is that there has been adultery by one of the spouses. The legal definition of adultery, however, requires an act of intercourse which, by definition, has to be heterosexual. For that reason, adultery has been omitted as a ground for dissolution. However, the same conduct could amount to 'unreasonable behaviour'.
The tax consequences of registering as civil partners will be identical to those of getting married. Similarly, in the area of social security benefits, civil partners will be treated in the same way as spouses whereas cohabiting same-sex couples are currently assessed as two single people. Interestingly, the effects of the benefit changes are not limited to registered civil partners. Two people of the same-sex who are not registered, but who are 'living together as if they were civil partners' are also to be assessed together for the purposes of means-tested benefits and tax credits.
A similar approach has been followed across all areas of the law from immigration to adoption, as well as to more obscure corners of the statute book, such as the Slaughterhouses Act 1974 and the Disused Burial Grounds (Amendment) Act 1981.
Equality under the law?
Some argue that the CPA has created a new species of discrimination rather than getting rid of an old one. Gay and lesbian couples may still not marry and now heterosexual couples are to be excluded from the status of civil partnership. Those who hold to this view will continue to argue for nothing less than the right for gay couples to marry.
A test case on this issue is to be heard in the High Court next year: Celia Kitzinger and Sue Wilkinson, a lesbian couple who legally married in Canada, will argue that the UK's failure to recognise their marriage is a breach of their human rights under Articles 8, 12 and 14 of the European Convention on Human Rights. None of this, however, is likely to spoil the party for the many couples who will register from December.

Julian Washington is aprivate client partner at Forsters Gender and parenthood: the case for realignment
Citation: Med. L. Rev. 2008, 16(2), 261-283
Subject: Human rights; Family law; Health
Keywords: Assisted reproduction; Gender reassignment; Human rights; Parents; Transsexuals
Documents: Full Text Article Legal Journals Index Abstract
Terms in Context:
...Green, ‘Transsexuals' Children’ (1998) 2 The International Journal of Transgenderism. http://www.symposium.com//ijt/ijtc0601.htm (accessed on 08 November 2007). II. EQUAL TREATMENT Transsexualism is an extreme form of gender dysphoria. P. De Sutter ‘Gender Reassignment and assisted reproduction; Present and Future ...
...carried by a surrogate mother. Currently, only married couples can apply for a parental order. Under the new provisions, civil partners would also be able to apply, as would unmarried opposite sex couples or same-sex couples not in a civil ...
...such that:‘child of the family’, in relation to parties to a marriage, or to two people who are civil partners of each other, means- (a) a child of both of them, and (b) any other child, other than a child ...
...Partnership Act 2004, s. 75.Gender-specific parental roles will create confusion for same sex couples. B. Hale, ‘Equality in Equal Measure’. The Sixth Annual Law Reports Lecture 18/06/2007http://www.lawreports.co.uk/AboutICLR/Lecture¨PDF/ICLRLecture2007Lady¨HaleTrans.pdf p.18 (accessed on...
Same-sex marriage, same-sex cohabitation, and same-sex families around the world: why "same" is so different
Citation: E.R.P.L. 2011, 19(5), 631-668
Subject: Family law
Keywords: Civil partnerships; Comparative law; Homosexuality; Marriage; Parental rights; Same sex partners
Documents: Legal Journals Index Abstract
Terms in Context:
...Article - JournalSame-sex marriage, same-sex cohabitation, and same-sex families around the world: why "same" is so different. Macarena Saez E.R.P.L. 2011, 19(5), 631-668 European Review of Private Law Family law Civil partnerships Comparative law Homosexuality Marriage Parental rights Same sex partners Reviews the jurisdictions around the world which have given same-sex couples the legal right to marry and establish a family, the differential treatment of same-sex marriage and opposite-sex marriage in some jurisdictions, those which recognise a distinct type of partnership rather than marriage, and those which do not formally recognise same-sex couples. Discusses the principal arguments for and against allowing marriage and parenthood on equal terms for same-sex couples...
The right to discriminate
Citation: Ecc. L.J. 2011, 13(2), 157-181
Subject: Human rights; Criminal law; Employment; Family law
Keywords: Civil partnerships; Freedom of thought conscience and religion; Inciting hatred on the grounds of sexual orientation; Inciting religious hatred; Same sex partners; Sexual orientation discrimination
Gender neutral laws and heterocentric policies: "domestic abuse as gender-based abuse" and same-sex couples
Citation: Edin. L.R. 2011, 15(3), 381-405
Subject: Penology and criminology; Family law
Keywords: Domestic violence; Gender; Same sex partners; Scotland
Documents: Full Text Article Legal Journals Index Abstract
Terms in Context:
...EDINLREdinburgh Law Review 2011 15 3 Gender neutral laws and heterocentric policies: "domestic abuse as gender-based abuse" and same-sex couples Brian Dempsey Edin. L.R. 2011, 15(3), 381-405 Penology and criminology Family law Domestic violence Gender Same sex partners Scotland domestic abuse Matrimonial Homes (Family Protection) (Scotland) Act 1981 LJI0000779256 A. INTRODUCTION (1) What this article will (not) do B. DOMESTIC ABUSE WITHIN SAME-SEX RELATIONSHIPS (1) Gender neutral legislation and slow inclusion of same-sex couples (2) Prevalence (3) Particular issues in same-sex domestic abuse (a) Homophobia and community stigma (b) Invisibility C. THE “DOMESTIC ABUSE AS GENDER-BASED ABUSE” DEFINITIONAL CONSTRUCT D. FEMINISM AND SAME SEX DOMESTIC ABUSE E. ATTEMPTS TO RECONCILE “DOMESTIC ABUSE AS GENDER-BASED ABUSE” WITH THE REALITY OF SAME-SEX DOMESTIC ABUSE (1) The Scottish lgbt domestic abuse project (2) Attempts to subsume same-sex domestic abuse within the government's gendered definition F. CONCLUSION Edin. L.R. 382 382 A. INTRODUCTION Domestic abuse is a major ...
...bisexual and/or trans) people, women, men). This article brings together the emerging concern in relation to domestic abuse in same-sex relationships with an analysis of the “domestic abuse as gender-based abuse” The government's “domestic abuse (as gender-based abuse ...
...construct and identify the impact that the use of such a construct may have on the lives of those in same-sex relationships.In the interests of clarity trans/transsexual/transgender people are treated simply as being in their preferred sex and therefore, if in a relationship, simply in a same-sex or mixed-sex couple. For an exploration of some of the particular issues faced by trans people see B Dempsey, “Trans people's experience ...
...address the interests of lgbt people, including, to a limited degree, recognition of the rights of those experiencing abuse in same-sex couples.See e.g. B Dempsey, “Lesbian, gay, bisexual and trans people and the law” in M Mulhern (ed), Scottish Life ...
...which, rather than being sensitive to all gender dynamics, has focussed almost exclusively on the experience of women in mixed-sex relationships. This, it will be argued, has been to the detriment of both men and women who experience domestic abuse in same-sex relationships and their children. Men in mixed-sex relationships, and their children, are arguably also significantly disadvantaged, but consideration of their situation is outwith the scope of this ...
...rather in order to explore the implications of the universalisation of this particular definitional construct on persons experiencing abuse in same-sex relationships. It is not the purpose of this article to seek to diminish the reality of domestic abuse experienced by ...
...approach than that so far promoted by politicians, activists and academic commentators - one that respects the experiences of persons in same-sex couples and considers how legal and policy regulation impacts upon lgbt people in the context of formally gender- and sexuality...
...the dominant feminist definitional construction of domestic abuse, has the potential to improve not just how law affects those in same-sex relationships but also how it affects all those who experience domestic abuse.This article will first establish what is known about the reality of domestic abuse in same-sex relationships before seeking to impose clarity on the Scottish government's peculiar definition of domestic abuse and establishing that it is ...
...narrow construct that in practice excludes many people who experience abuse. It will then critique attempts to accommodate recognition of same-sex domestic abuse with the government's definition, concluding that there is a need for greater rigour, clarity and honesty of analysis ...
...d) and 57(2); Scottish Government, The Scottish Ministerial Code, rev edn (2009) para 3.1. B. DOMESTIC ABUSE WITHIN SAME-SEX RELATIONSHIPS Until relatively recently, there was very limited official and academic knowledge of the realities of lgbt family structures and ...
...discriminatory laws and widespread social prejudice.See e.g. S Whittle, Respect and Equality: Transsexual and Transgender Rights (2002); S Cretney, Same Sex Relationships: From ‘Odious Crime’ to ‘Gay Marriage’ (2006); L Harne and Rights of Women, Valued Families: The Lesbian Mothers' Legal Handbook (1997). In some jurisdictions over the ...
...able to be more open about their family structures. Despite this greater openness, however, the existence of domestic abuse in same-sex relationships has remained generally a Edin. L.R. 385 385 “taboo subject” for fear that acknowledging the issue would reflect badly on lgbt communities. W S Kulkin et al, “A review of research on violence in same-gender couples” (2008) 53 Journal of Homosexuality 71 at 72. Given the paucity of research on same-sex domestic abuse, especially on male couples, There is very little research in Scotland: see D Gadd, Domestic Abuse Against Men ...
...in Scotland (2000) 10-11. Internationally more research exists on abuse in lesbian relationships compared to bisexual, trans or male same-sex abuse: see J L Ristock, No More Secrets: Violence in Lesbian Relationships (2002) 8; Kulkin (n 13) 78-79. A very useful overview of issues for men in same-sex relationships can be found in A L Robinson and J Rowlands, The Dyn Project: Supporting Men Experiencing Domestic Abuse, Final ...
...when generalising from often quite specific and limited research. This section begins with a brief analysis of the inclusion of same-sex couples within the formal legal response to domestic abuse. (1) Gender neutral legislation and slow inclusion of same-sex couples The Matrimonial Homes (Family Protection) (Scotland) Act 1981 was the first significant civil law response in Scotland to the ...
...Dobash, Violence Against Wives: A Case against the Patriarchy (1980). The Act, formally gender neutral as between parties in mixed-sex couples though excluding same-sex couples, significantly improved the position of a person who experienced or feared domestic abuse by conferring “occupancy rights” on spouses ...
...bear the burden of child care.The protections granted by the 1981 Act were, from the beginning, conferred on mixed sex couples “living with each other as if they were man and wife”. s 18. Whether this could have been read to include same-sex couples after the coming Edin. L.R. 386 386 into effect of the Human Rights Act 1998 was never tested. Arguments ...
...the protections were extended to civil partners and not until 2006 that they were extended to “two persons of the same sex who are living together as if they were civil partners”.Respectively the Civil Partnership Act 2004 ss 101-116 (ss ...
...any person” in fear of violence from another allowed legislators to avoid adopting an express position on the validity of same-sex relationships compared to mixed-sex relationships.For criticism of the (over)extension of domestic abuse protections see comments on H Reece, “The end of domestic violence ...
...15 Feminist Legal Studies 259. There is an absence of research on effective access to such remedies for people in same sex relationships. Connelly and Cavanagh make all same-sex couples and all males who experience abuse (and the children of all of these adults) invisible by deliberately referring to ...
...in “homosexual relationships” but that there was no evidence of the protections within the Act being used by persons in same-sex relationships. See K Cavanagh, C Connelly and J Scoular, An Evaluation of the Protection from Abuse (Scotland) Act 2003 (2003...