Comment: Same-sex marriage is almost here but the fight for equality continues
Barrister Martin Downs assess the impact of equality legislation from the removal of Section 28 to the pending arrival of equal marriage, he argues there is still work for LGBT campaigners to do.
On 5 December 2005, Matthew Roche and Christopher Cramp became the first couple to enter into a civil partnership in the UK, having been given special exemption from the normal 15-day waiting period after the law was passed. The ceremony took place at a hospice in Worthing, West Sussex, and Matthew died the following day, having battled lung cancer. As well as celebrating their relationship while they were both still alive, the partnership allowed Roche’s estate to be treated as if he were married and gave Cramp the status to plan the funeral.
Barring an exceptional situation such as that which occurred with Roche and Cramp, the first same-sex weddings will take place on 29 March. Most likely the earliest of these will be celebrated just down the coast from Worthing at the Royal Pavilion in Brighton.
The imminence of this landmark event appears to have provoked a somewhat unusual squabble as to the motives of those who introduced and supported same-sex marriage. The catalyst was an accusation by Ben Summerskill, the former chief executive of Stonewall, that Lib Dem support for same-sex marriage was “cynical”. This appears to be a misstep for the usually suave and effective communicator, especially as his own late conversion to the cause of same-sex marriage has brought about accusations of hypocrisy.
However, in some respects it is refreshing to witness a fight over who can claim credit for lesbian and gay law reform. David Cameron is reported to have expressed his regrets about gay marriage to party activists at the Conservative party conference in 2013. Even Tony Blair only declared civil partnership to be one of his proudest achievements when it was safely enacted and a proven success.
The reality is that the origins of this profound change are many and varied; some are frankly old-fashioned and somewhat surprising.
The first point to make is that it was not inevitable that England and Wales would be one of the earliest countries to enact same-sex marriage. Despite much pious pontificating about state-sanctioned homophobia in Russia, it is sobering to note that our own Section 28 made it unlawful to teach in a maintained school “the acceptability of homosexuality as a pretended family relationship”. This was only repealed in 2003.
The enactment of Section 28 energised the LGBT community and gave birth to grassroots groups such as Outrage!, as well as leading to the foundation of the professional lobbying organisation Stonewall. The latter initiated probably the most ambitious litigation strategy ever seen in the UK. In this they relied on the expertise of the academic Prof Robert Wintemute, who took the fight to the European Court of Human Rights and commenced proceedings there, challenging the exclusion of same-sex couples from marriage. If any other one individual were to be singled out it would have to be the jurist Lord Lester, whose contribution to civil rights goes back 50 years. When faced with government inertia over the recognition of same-sex relationships, his response was to draft a civil partnership bill himself and introduce it as a private member’s bill.
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Once enacted, the Civil Partnership Act was an extraordinary success with more than 120,000 people following Cramp and Roche in its first seven years. The photos of joyous families from Derry to Dartford appear to have had a decisive impact, as surveys of social attitudes have shown. They have certainly coincided with a significant number of people coming out as lesbian, gay or bisexual.
By the time the same-sex marriage bill was introduced, the House of Commons was heavily populated with “out” MPs, including future stars of the Tory party such as Margot James and Nick Herbert. Change had even washed against the shores of the House of Lords, with the debates dominated by Lord Alli and Baroness Barker who were able to speak from personal experience – making disagreement with them all the more awkward. These voices were reinforced by an innovative social media campaign by Equal Love, Out4Marriage, and the Coalition for Equal Marriage. All this was underpinned by an old-fashioned campaign by party members – many of them lesbian and gay. Derided as irrelevant, one of the decisive steps to reform was actually a motion passed at a Lib Dem Party conference in September 2010; similarly, pressure by rank and file Labour Party members at conference was decisive in making discrimination in the provision of services unlawful on the grounds of sexual orientation in 2006.
The bill was assisted along its way by the fact that one of its most prominent opponents was disgraced Cardinal Keith O’Brien.
The comments by Summerskill are a rare descent to ill-discipline in a movement that still needs to be on its guard. In the same week that England and Wales recognised same-sex marriages from overseas, and the Queen gave Royal Assent to the Scottish Same-Sex Marriage Act, statistics revealed that applications to employment tribunals have fallen nearly 80% since the introduction of fees by the coalition. Britain may now have some of the world’s most advanced equality legislation, but its utility is greatly reduced if rights are virtually unenforceable.
Additionally, much of the progress achieved in LGBT law reform so far has relied on rights enshrined in the European convention of human rights and laws introduced by the EU. The rise of Euroscepticism and the war on human rights culture represents a genuine threat against which those who have struggled for equality should be watchful.
Martin Downs is a barrister and co-author of Civil Partnership – The New Law.
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