Equality is still a dream in the UK

In its refusal to recognise a foreign lesbian marriage, the high court has revealed the homophobia at the heart of the legal system

Peter Tatchell | August 03, 2006

Celia Kitzinger and Sue Wilkinson
LONDON — If you thought the battle for gay human rights was won, think again. Because the high court has ruled that lesbian and gay people are not entitled to legal equality.

Sir Mark Potter, president of the family division, dismissed an application by a British lesbian couple, Sue Wilkinson and Celia Kitzinger to have their Canadian marriage recognised in the UK. They were lawfully married in Canada in 2003 after the marriage laws in the province of British Columbia were opened up to same-sex partners.

Potter effectively declared that homophobic discrimination was justified in order to protect the tradition of heterosexual marriage.

In his view, loving, long-term same-sex relationships clearly do not merit recognition on a par with their opposite-sex counterparts, and the law is right to uphold the legal supremacy of heterosexuality.

Sir Mark's judgment will be seen by many people as a throwback to the dark ages of judicial homophobia. It could have been authored by the Christian fundamentalists of the rightwing Evangelical Alliance. The anti-gay bigots are rejoicing; the queer community and our heterosexual allies are stunned.

This ruling is further evidence of the institutional homophobia at the heart of the legal system. Equality? What equality? Equal treatment by the courts is still just a dream for gay, lesbian, bisexual and transgender people.

Wilkinson and Kitzinger, who have been together for 16 years, argue that since all marriages conducted lawfully abroad are recognised by the UK authorities, their marriage should be also accorded official recognition.

For an overseas marriage to be accepted in the UK, the partners must show that their marriage is lawful, that it is recognised in the country in which the marriage took place, and that nothing in the law of the country where they were married restricted their right to marry.

Wilkinson and Kitzinger say their marriage fulfils these requirements. They therefore applied to the High Court to have their Canadian marriage recognised in the UK, in the same way that heterosexual marriages in Canada are recognised by the UK authorities.

But the British (Labour!) government downgraded Wilkinson's and Kitzinger's marriage to a civil partnership; refusing to recognise them as a married couple.

Wilkinson and Kitzinger rejected the conversion of their marriage into a civil partnership, believing this to be, symbolically and practically, an inferior substitute. They argued that the failure to recognise the validity of their marriage constitutes a breach of their rights under Articles 8 (right to respect for private and family life), 12 (right to marry) and 14 (prohibition of discrimination) of the European convention on human rights, which is incorporated into UK law by the Human Rights Act 1998.

But Potter rejected their application, claiming that granting their request would risk undermining the "valued" and "respected" institution of marriage.

While acknowledging that the couple had been discriminated against by the non-recognition of their marriage, he said this discrimination was justified in order to protect the traditional "long-standing definition and acceptance" of marriage as a union between a man and a woman with the primary aim of producing children.

"The majority of people ... regard marriage as an age-old institution, valued and valuable, respectable and respected, as a means not only of encouraging monogamy but also the procreation of children," Potter wrote in his ruling.

"This form of relationship [heterosexual marriage] is the one which best encourages stability in a well-regulated society."

Same-sex relationships were "different", and "to accord a same-sex relationship the title and status of marriage would be to fly in the face of the [European] convention [on Human Rights] as well as to fail to recognise physical reality," claimed the judge.

Commenting on the high court ruling, Sue Wilkinson said: "We are deeply disappointed by today's judgment – not just for ourselves, but for same-sex couples nationwide. It perpetuates discrimination and it sends out the message that lesbian and gay marriages are inferior. Denying the validity of our marriage upholds discrimination and inequality. This judgment will not stand the test of time, and we look forward to the day when there is full equality in marriage for same-sex couples."

Whatever your views on same-sex marriage, Sir Mark Potter's decision undeniably defies the democratic principle that everyone should be equal before the law. It contradicts the anti-discrimination clauses of the Human Rights Act.

Moreover, his insistence that same-sex couples should accept the inferior status of civil partners is deeply insulting.

Civil partnerships are not equality. The separate systems of marriage and civil partnerships are a form of sexual apartheid, with different laws for gays and straights; marriage is for heterosexuals only, and civil partnerships are for gay people only. Two wrongs do not make a right. Separate is not equal. Civil partnerships are second best.

Nothing less than marriage equality is acceptable. The current ban on same-sex marriage in the UK signals the continuing second-class legal status of lesbian, gay and bisexual people.

I am angry, but not downcast. This is a temporary setback in the long struggle for marriage equality. We have lost round one, but the non-recognition of same-sex marriage will be eventually overturned.

Justice has been delayed, but it cannot be denied. – Issued by Outrage!

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