Comment: Why gay people should support straight civil partnerships
King’s College London professor Robert Wintemute writes for PinkNews on the importance of having civil partnerships extended to include straight couples.
The centuries-long struggle for full legal equality for the UK’s lesbian, gay and bisexual minority achieved almost complete success in 2014, when the first same-sex couples married in England, Wales and Scotland. (Unfinished business includes marriage in Northern Ireland and equal survivor’s pensions.) But that struggle has always been one for equal rights, not superior rights. Activists in the USA have frequently had to counter the slogan “no special rights for homosexuals” with the truth that they are seeking equality. Yet, strangely enough, since 29 March 2014 in England and Wales, same-sex couples have enjoyed “special rights”!
When same-sex couples go to their town hall, they are effectively presented with a menu of options. An official might say: “If you would like something traditional, we can offer you a marriage. If you would prefer a more modern institution, we can offer you a civil partnership.” When different-sex couples go to their town hall, they are told bluntly: “For you lot, it’s a marriage. Take it or leave it.” For these couples, choosing not to join the traditional institution of marriage means that they and their children must live without the legal protections that marriage offers. Same-sex couples are not forced to marry to enjoy legal protections. They are free to decide that a civil partnership suits them better, because they like its terminology (“civil partners” rather than “husband and wife”), and dislike the long history of inequality of women and men in marriage.
Equal access to marriage for same-sex couples would not have been achieved without the support of many heterosexual individuals and different-sex couples. One such couple, Rebecca Steinfeld and Charles Keidan, went to the High Court today to challenge the discrimination (based on sexual orientation) that prevents them from having their love legally recognised in the form of their choice, a civil partnership. Section 3(1)(a) of the Civil Partnership Act 2004 is an explicit ban: “Two people are not eligible to register as civil partners of each other if … they are not of the same sex.”
The discrimination that Rebecca and Charles (and thousands of other different-sex couples who would like a civil partnership) are experiencing violates Articles 14 and 8 of the European Convention on Human Rights. The Convention does not permit a legal institution, created as an alternative to marriage, to exclude same-sex couples, or (once same-sex couples are allowed to marry and the alternative can no longer be seen as “compensation” for exclusion from marriage) to exclude different-sex couples. This is clear from two recent judgments of the European Court of Human Rights: Vallianatos in 2013 (Greece could not exclude same-sex couples from an alternative to marriage) and Konstantin Markin in 2012 (Russia could not exclude men from parental leave, because the Convention’s prohibition of sex discrimination protects both women and men, just as the Convention’s prohibition of sexual orientation discrimination, at least with regard to rights not linked to marriage, protects both same-sex couples and different-sex couples). Of the 11 European countries where same-sex couples may marry from 1 January 2015 (not yet in Finland), this discrimination exists only in the UK. In the other 10 countries (Belgium, Denmark, France, Iceland, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden), either there is no alternative to marriage for any couple, or the alternative is open to all couples.
Excluding different-sex couples from civil partnership is unfair, because all couples should have the same choices regardless of their sexual orientation, and is potentially harmful to the UK’s lesbian, gay and bisexual minority, because it could lead to resentment of our having superior rights. Nor is it a justifiable form of positive action, addressing any LGB under-representation in higher education or employment. Civil partnership certificates are not a finite opportunity for which couples compete. The supply at the town hall can easily meet the demand.
Once a UK court (or if necessary the European Court) declares that the Civil Partnership Act 2004 discriminates against different-sex couples and must be amended to make it compatible with the European Convention, the UK Government will have two options: (1) it may take civil partnership away from same-sex couples going forward (but not retroactively), by repealing the Civil Partnership Act 2004; or (2) it may extend the option of civil partnership to different-sex couples through a simple amendment repealing section 3(1)(a) of the Act. Extension is clearly the better option: it gives every couple two choices of legal recognition, without threatening traditional different-sex marriage. In the Netherlands, where all couples, different-sex and same-sex, have had an equal choice of marriage or registered partnership since 2001, 87.5% of different-sex couples (7 out of 8 couples) chose marriage in 2013.
I would urge every lesbian, gay and bisexual person in the UK to consider signing Rebecca and Charles’ petition, making a donation to help fund their case (if you can afford it), and asking your MP to vote for Tim Loughton MP’s Civil Partnership Act 2004 (Amendment) Bill.
I would also urge Stonewall to change its position and campaign for civil partnership for different-sex couples, by lending its political and financial support to Rebecca and Charles’ High Court case and to the private member’s bill. Working for lesbian, gay and bisexual equality occasionally means working for heterosexual equality, when the UK Parliament overshoots the mark by granting superior rights to same-sex couples.
Robert Wintemute is a Professor of Human Rights Law at King’s College London
This opinion article does not necessarily reflect the views of PinkNews.