Unsatisfactory answers

Finally, a reply from the Department for Constitutional Affairs - though not an encouraging or particularly enlightening one.

The government's decision is as follows: "The UK recognises two forms of legal relationship; marriage and civil partnership (for same sex couples). As the UK has no form of opposite sex legal union other than marriage it would not be possible for us to recognise such relationships from another country."

The last sentence is a logical non sequitur. The UK has no form of same sex legal union other than civil partnership, yet the government has found it perfectly possible to recognise "such relationships from another country" - by deeming them to be civil partnerships.

The question that needs to be asked is why the government has seen fit to make explicit provision for the recognition of same-sex overseas marriages as civil partnerships, but has not made parallel provision for the recognition of opposite-sex overseas civil partnerships at all.

Is this a deliberate policy? If so, what is its justification? Is it an oversight? If so, when will it be rectified? Political disagreement is one thing, but there is no excuse for fobbing off important questions using sloppy reasoning.

This matter is far from closed.

Is the law an ass - or just a mule?

So what has the campaign been up to lately? Everything seems to have gone quiet.

Well, we've been very busy behind the scenes, but since the matter in hand is an attempt to elicit information from the government, visible progress was always going to be slow to appear.

Essentially, we've been trying to resolve the question of how the law will treat opposite-sex couples who contract valid civil partnerships overseas. Increasingly, countries in all parts of the world are introducing some form of partnership contract that is available to same-sex and, in many cases, opposite-sex couples. However, the international recognition of these contracts is patchy (unlike the near-universal recognition of any opposite-sex partnership that happens to be called a marriage), and this has the potential to cause serious anomalies for couples who form partnerships abroad or change their country of domicile.

Currently, non-resident opposite-sex couples are able to form a civil partnership with all the legal force of marriage in New Zealand, and the Netherlands have opposite-sex civil partnership for residents. (The French 'civil pact' is not the legal equivalent of marriage.)

Under current law, same-sex couples who contract a recognised marriage or civil partnership abroad are treated in the UK as having formed a civil partnership, and gain all the concomitant legal rights, privileges and responsibilities. Likewise, opposite-sex couples who form a recognised marriage abroad are treated in the UK as being married. However, the law appears to be utterly silent on the treatment of opposite-sex couples who form a civil partnership abroad.

We know from the failure of Sue Wilkinson and Celia Kitzinger's case (blogs passim) that an opposite-sex civil partnership contracted abroad would not be deemed to be a civil partnership in the UK. The Civil Partnership Act explicitly restricts civil partnership to same-sex couples. However, no-one knows whether such a civil partnership would be treated as a legal marriage or treated as void.

This grey area clearly needs to be resolved to avoid the anomalies that will inevitably arise when opposite-sex civil partners return to or settle in the UK. Will their wills still be valid? How will they be treated under family law or for inheritance tax purposes?

Nor is this an abstract question postulating hypothetical immigration: if the UK government continues to exclude opposite-sex couples from forming civil partnerships in the UK, many couples are likely to travel abroad in order to formalise their partnerships conscientiously - they need to know what their legal status will be on their return.

So far, we have put this question to the General Register Office, who pronounced themselves unable to judge and referred us to the Attorney General's Office. They denied responsibility for the issue, and referred us to the Department for Constitutional Affairs, who have thus far not deigned to respond.

Needless to say, we will keep asking. In the meantime, thank you to everyone who has recently signed the petition and volunteered to help spread the word of the campaign.

Radio waves

Some of you may have caught the discussion of our campaign on Woman's Hour on Tuesday 25th July. Many thanks to everyone who has responded or signed the petition as a result.

Judging by the discussion on the Woman's Hour message board, there is obviously still a lot of ignorance, prejudice and misunderstanding to tackle. There was much puzzlement over the meaning of the word 'marriage', including a debate on whether it could be offensive in a carpentry context, and (more seriously) an indignant demand to know why straight people are suddenly demanding civil partnerships when gay couples have had to fight for decades to get legal recognition.

I hope that there is not a widespread assumption that there is any conflict or animosity between our campaign and the struggle for equal rights for homosexuals. There are two reasons why we believe civil partnerships should be equally available to all. One is that it is reasonable to object to certain elements of marriage that make it different to civil partnership, and that, as such, those who object should not be arbitrarily prevented from forming civil partnerships instead. But the second - and most important - is that segregation on the grounds of sex and sexuality is not only irrational but odious, and discriminates against homosexuals as well as heterosexuals.

This argument is essentially the same as that of homosexual couples who want access to marriage because they endorse and embrace the elements of marriage that make it different to civil partnerships, or simply because they rightly demand equal treatment to heterosexuals.

This parallel means that we completely support campaigns to make civil (as opposed to religious) marriage available to same-sex couples. (From my personal, secular perspective, I don't see any good reason for religious marriage being unavailable to homosexuals either, but then I don't see any good reason for religion full stop, so I don't feel qualified to judge on this particular issue.)

I was disappointed to read the judgement passed last week rejecting the petition by Sue Wilkinson and Celia Kitzinger to have their Canadian marriage recognised as such in the UK (see Approaching From The Opposite Direction, below). It was unfortunately unsurprising that their case was rejected, but I had expected this to be on the grounds that there was no actual discrimination because civil partnership confers all the legal rights of marriage (once again based on the failure of the political and legal establishment to appreciate that there is more to the notion of marriage than the level of personal commitment and legal responsibility).

In fact, however, the judgement declared that while there was indeed discrimination, this discrimination was justified in order to protect the status of marriage as being a union between one man and one woman, primarily for the purpose of procreation. The judge also rejected the couple's arguments that made reference to the right to family life, on the grounds that homosexual childless couples cannot legally comprise a family.

In my view, the assumptions underlying this judgement are far more offensive than the original construal of Sue and Celia's marriage as a civil partnership. That act simply perpetuated discrimination - this judgement actively defends and promotes it.

The realisation that these deeply homophobic attitudes and prejudices are still informing political and legal decisions about human relationships makes me feel more determined than ever to help fight sex discrimination from all angles. Many heterosexual couples feel passionately that they cannot conscientiously enter into a marriage, and are angry that a baggage-free legal relationship is arbitrarily closed to us. In fighting to change this situation, we should remember that at least we are not being told that we cannot be families, or that we are being excluded in order to preserve the special status of an institution for couples of a different sexuality.

Until sex and sexuality are no longer used as criteria for legal privileges, either for homosexuals or heterosexuals, the Civil Partnership Act will have brought about only the most superficial improvement in the status and treatment of same-sex couples. That's why, in the end, we're all on the same side.

If it's broke, break it some more...

Sometimes I despair of Britain's top legal minds. When faced with a messy compost heap of confusion and absurdity in relationship law, how should it best be tidied and rationalised? Why, by shovelling on another pile of confusion and absurdity.

I refer, of course, to the apparently willfully perverse proposals by the Law Commission that various legal 'protections' should be applied to cohabiting couples, giving them certain rights and claims in the event of the relationship ending.

The consultation paper freely acknowledges the many obvious difficulties in creating such a scheme. Shouldn't people have the freedom to remain uncommitted? Would the scheme be opt-in or opt-out? How would cohabitation registration differ from marriage? How should 'cohabitation' be defined? (One of the suggested criteria is whether the couple are in a sexual relationship - how would they check?)

The Commission admits that the essential issue it is trying to address is the unfairness that arises when couples falsely believe themselves to be in a 'common law marriage', and one of them (usually the woman) suffers disproportionately when the relationship ends.

The well-documented cases of mis-informed women losing their homes and being left with nothing when the father of their children leaves are certainly tragic. And we are not the first to suggest that public education is needed to ensure that no-one labours under the delusion of common law marriage any longer.

However, the Commission believes that public education will not be enough to prevent such cases where the financially stronger partner refuses to enter into marriage, civil partnership, or any kind of independent legal agreement on the ownership and division of assets.

This may well be true. But a 'partnership' that endures when one person has asked for legal protection and the other has refused it is clearly not a paragon of loving intimacy. Such a relationship is likely to be complex, problematic and mired in social and sexual inequality. These situations are sad and difficult, and we commend the impulse to ameliorate the exploited partner's situation.

However, changing the law so as to create vague and impracticable quasi-legal partnerships for the majority of couples who have freely chosen not to marry is too blunt an instrument. For every tragic betrayal such a scheme averted, it could create ten more unlooked-for entanglements. Moreover, it would make the overall legal situation more complex and less rational - reason enough to reject the proposals.

We consider that the real problem that needs to be addressed by legal (rather than educational) means, is the situation of committed heterosexual couples who want to make a legal commitment but who have principled objections to the historical, sexual and social connotations of marriage. They are the people most badly served by current partnership law, since civil partnerships are closed to them.

The Law Commission should consider addressing its concerns by proposing that civil partnerships be made universally available. This would reduce the barriers to legal commitment (by making it morally neutral and baggage-free) - ensuring that as many couples as possible enjoy the rights and protections they want and deserve.

Approaching from the opposite direction

It's taken a long time to make it through the British legal system, but an important test case is due to begin this week. You may have heard about the fight by a lesbian couple to have their marriage (which took place in Canada) recognised in the UK. The outcome of this case could have interesting implications for our campaign.

In Canada, any couple are free to marry, whether heterosexual or homosexual - there is no distinction between different types of marriage or legal partnership. If this were the case in the UK, we would not need to run the Equal Partnership Campaign - there would be no more legal segregation on grounds of sex or sexuality, although presumably it would be too much to ask that the silly requirement of reciting 'declarations' out loud be abolished.

The test case - brought by Sue Wilkinson and Celia Kitzinger - is challenging the bizarre situation whereby if a heterosexual couple are married in Canada, their marriage is recognised as a marriage in the UK, whereas a homosexual marriage contracted in Canada is magically transformed into a Civil Partnership under UK law.

If the couple succeed and the court decides that their marriage should be recognised as such, this would not mean that marriage has to be available to homosexuals in the UK, but it would mean that some gay couples in the UK would be married and some would be civil partners. This would highlight the absurdity of having two parallel systems bestowing the same legal rights.

This could eventually have the consequence that marriage would have to be made available to all. This would obviously be a far superior state of affairs to that which obtains at the moment. However, we believe that marriage has broader social, sexual and historical connotations than simple legal partnership - connotations which many heterosexuals currently reject, and which deter many principled couples from forming the legal commitment that they would like to have. In addition, we do have some sympathy with committed Christians and others who feel that marriage should be protected as a peculiarly spiritual relationship set apart from legal practicalities - though we maintain that this position is only defensible if a non-marriage legal partnership is available equally to everyone.

So while we wish Ms Wilkinson and Ms Kitzinger every success in their fight to expose absurdity and win recognition for their marriage, we also hope that their case - by highlighting the obvious nonsense of a two-tier system - will ultimately strengthen the case for civil partnerships, rather than marriage, being the universally accessible, morally neutral form of legal partnership in the UK.

New Rights, Old Wrongs - read our latest article

Civil Partnerships being restricted to same-sex couples is more than a strange and irritating political decision – it’s an indefensible refusal to create real legal equality for all citizens. Our latest article explains how the Equal Partnership Campaign is fighting to end 400 years of sexual segregation – and how you can help.

This isn’t an article about what’s wrong with marriage. The fact that you’re reading this means you don’t need to be told about the patriarchal anachronism of the institution, let alone the ceremony, or the real meaning of the cake-cutting. You’re already uneasy with the idea of becoming anyone’s ‘wife’, with all that’s historically implied. You couldn’t tolerate being ‘given away’, the notion of the virginal gown is odious as well as ridiculous and you never did want a Bridal Sindy. You’d love to make a legal commitment to your partner, but you hate feeling like a hypocrite and even a civil ceremony would involve taking part in a bowdlerised version of the whole medieval rigmarole as well as mumbling vows about undying love in front of your Uncle Brian.

Isn’t it a shame that you can’t have one of those civil partnerships, like gay couples? Wouldn’t it be great to be able to sign a fair, symmetrical legal contract with none of the historical baggage of marriage, and then celebrate it in any way you like?

Well, what this article is about is why the restricted availability of civil partnerships is more than just a shame. It’s about how the clause restricting civil partnerships to individuals of the same sex not only ghettoises homosexual couples but also represents an unconscionable missed opportunity to remove a block to true equality. A block, moreover, that has deformed the whole structure of society for 400 years.

A serious campaign to secure universal access to civil partnerships has been started, and needs your support. But first we have a duty to explain why the mutually exclusive duopoly of marriage and civil partnership is more than a niggling annoyance for feminists and gay-rights campaigners. So what exactly is the problem with marriage and civil partnerships, and how exactly do we propose to solve it? Let’s take the first question.

The position that there are strong moral or philosophical reasons why civil partnerships must be made available to all individuals is met with suspicion, if not hostility, from two sides. On the one flank are those who would point out that, since the legal rights and responsibilities bestowed by marriage and by civil partnership are more or less the same, it is quixotic to split hairs over which is available to whom - are there not more worthwhile battles to fight? Advancing from the other direction are veterans of the battle for gay liberation, exasperated by attempts by heterosexuals (who have always had it all their own way) to muscle in on hard-won homosexual rights like a petulant child who refuses to share a toy then cries when its sibling gets a shiny new version.

Both these responses are perfectly understandable, but, on closer examination, there is far more at stake here than the issue of which specific legal rights are bestowed. The superficial similarity and mutual exclusivity of marriage and civil partnership both embody and perpetuate a damaging deformity in the nature of what it is to be an individual in our society. Until this deformity is rectified, there can never be true equality between men and women or between heterosexuals and homosexuals. Why? Because while it remains, people will never be treated wholly as individuals - only as men or women who are straight or gay.

It doesn’t matter that the legal rights and protections available to men and women or to homosexuals and heterosexuals may happen to be the same, i.e. that they are (to be technically precise) contingently similar. The important point is that there is more than one distinct set of rights, each available only to a distinct set of people on a morally arbitrary basis. The situation is exactly analogous to the ‘separate but equal’ racial segregation in the USA - even if the housing, schools and jobs available to black people had really been the equivalent of those available to white people, black people’s lives might have been immeasurably better than they actually were, but the situation would still have been unjustifiable. Separate treatment can never be equal treatment when achieving equality consists in accepting the moral irrelevance of the very criteria used for separation.

But hang on, our two fronts of sceptics might reasonably interject – it’s perfectly possible to accept the moral irrelevance of race without believing the same to be true of sex or sexuality. What gives anyone the right to assume that a sexualised idea of personhood is a ‘deformity’? Shouldn’t we celebrate the different strengths and virtues of men, women, heterosexuals and homosexuals as essential aspects of who we are, not try to pretend that everyone is the same? Surely we’ve gone past the era of women in shoulder-pads trying to act like men, or gay men being forced to conform to ‘normal’ expectations of masculinity?

Our response is that of course sex and sexuality can be important aspects of personal identity, as can race, religion, nationality, language, social class, profession and indeed almost anything else. Our point is that there is no defensible reason for governments to make different laws for different sexes any more than for any other segments of society. The fact that the law doesn’t distinguish between actors and architects, say, doesn’t prevent any celebration of difference and diversity – it positively makes room for it by not making assumptions about how actors or architects might be expected to think or behave.

Ah, reply the sceptics, but the fact is that the law does distinguish between people of different sex and sexuality, and not between any other groups – don’t you think that might be because there’s a good reason for it? Doesn’t it imply that that particular distinction is not arbitrary, but rather reflects the fact that sexual differences are intrinsically more important than others?

We agree that there is indeed a reason for the peculiarity of sex-specific laws, but not that the reason is a good one. Back in the 17th and 18th centuries in Europe, when the concept of individual rights was being developed and incorporated into new forms of government, it was quickly realised that if women were considered as ‘individuals’ in the political sense, they too would have to be given these new rights. That conclusion was regarded as either absurd or inexpedient, so the political individual was defined (by the specific exclusion of women from political participation and civil rights) as a [heterosexual] man. Over time, of course, special laws were enacted giving additional rights to women and, most recently, homosexuals. But these discrete sets of laws have never been formally merged, and there is no blanket requirement that all individuals are to be treated equally in all aspects of civil life. The area of law with the most remnants of sexual apartheid and anachronistic sexualisation is that relating to marriage – for example, it remains the case that a marriage (unlike a civil partnership) is voidable on the grounds of willful refusal to have sexual intercourse. Most significantly, of course, marriage is restricted to people of the opposite physical sex.

These peculiarities are not just quaint oddities of the British legal system – they wedge open the deep fissure in civil society that means the early liberal vision of equal rights for all individuals has still not been realised. The introduction of civil partnerships presented an opportunity to heal the divide by allowing any two individuals to form a legal relationship regardless of sex, sexuality or any other arbitrary category. This opportunity was squandered by the insertion of the single clause that restricts civil partnerships to people of the same physical sex, making it the looking-glass equivalent of marriage. The clause marginalises homosexuals with the same pen-stroke that emancipates them, and keeps heterosexuals in their places as husbands and wives – separate under law and forever unequal.

If civil partnerships were made available to all, it would for the very first time create a truly all-embracing definition of a citizen. It would remove the last remnant of legal segregation on the grounds of sex or sexuality alone, and allow straight or gay men or women to fully develop their individuality – not just as men, or as women, or as queers, but as people. It would also let us celebrate our partnerships in any way meaningful to us, not just in a clichéd pantomime of medieval bridal rites involving the compulsory recitation of trite pledges that once struck a civil servant as apposite to the occasion. Just think for a moment of how you could celebrate if the only requirement was signing a contract – would it involve aisles, processions or vows?

So if this is the problem, how do we propose to solve it? Well, we believe that changing the law is a real possibility if enough individuals show their support. If you want to make a legal commitment to your partner of the opposite sex but reject the implications of marriage or the two-tier system, you shouldn’t have to grit your teeth at the registry office because you need the piece of paper. There is reason to believe that the clause restricting civil partnerships to people of the same sex may be illegal under a variety of existing provisions, such as UK sex discrimination law and the right to family life enshrined in European legislation. Most promisingly, the new Equality Act, which comes into force in April 2007, makes it illegal to refuse to provide goods or services on the basis of sexuality. The Equal Partnership Campaign has been set up to explore and exploit the legal and political opportunities to remove the exclusivity clause from the Civil Partnerships Act, and the case for change will be strengthened if we can demonstrate broad support drawn from the feminist, liberal and gay-rights movements.

We all know that it’s been a long and difficult task to build true equality for women and homosexuals under British law. There are good foundations in place – all hard-won and of vital importance – but now it’s time to finish the job. If you believe in equal civil rights for all individuals, regardless of sex or sexuality, join the campaign, show your support or find out more at www.equalpartnership.org.uk.

Welcome to the equalpartnership.org.uk weblog. Look out here for comments on the latest news relating to civil partnerships, equality legislation and feminist and gender issues generally. Any significant developments will of course be dealt with in a full and considered manner on the main site. Please feel free to comment on any of these posts, and the best or most pertinent responses will also be put up on the main site. And of course you can always e-mail me directly at editor@equalpartnership.org.uk.