Legal Recognition of Same-Sex Partnerships

LEGAL RECOGNITION OF SAME-SEX PARTNERSHIPS Legal Recognition of Same-Sex Partnerships A Study of National, European and International Law Edited by ROBERT WINTEMUTE School of Law, King’s College, University of London and MADS ANDENÆS British Institute of International and Comparative Law, London OXFORD – PORTLAND OREGON 2001 Hart Publishing Oxford and Portland, Oregon Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA Distributed in the Netherlands, Belgium and Luxembourg by Intersentia, Churchillaan 108 B2900 Schoten Antwerpen Belgium © The contributors and editors severally 2001 The editors and contributors to this work have asserted their rights under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work Hart Publishing Ltd is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing Ltd, Salter’s Boatyard, Oxford OX1 4LB Telephone: +44 (0)1865 245533 or Fax: +44 (0)1865 794882 e-mail: [email protected] WEBSITE: http//www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 1 84113–138–5 (paperback) Typeset by Hope Services (Abingdon) Ltd. Printed and bound in Great Britain on acid-free paper by Biddles Ltd, www.biddles.co.uk Foreword HE LAST QUARTER of the twentieth century saw a dramatic increase in the Tnumber and power of organised gay and lesbian social and political move- ments. This was accompanied by the systematic assertion, through legal strate- gies and challenges, of gays’ and lesbians’ rights to dignity and to full and equal citizenship. Decriminalising lesbian and gay sexual expression has been an indispensable first preoccupation; and in many jurisdictions (though still too few) this has been achieved. But for many, the scholarly and political focus has shifted to the quest for full and equal recognition of same-sex partnerships. Lesbians and gay men are demanding the right to form legally protected families, to receive benefits equal to those afforded state-sanctioned unions, and, in many cases, the equal right to marry. The implicit premise of these claims was given clarion expression recently in the Constitutional Court of South Africa. Justice Ackermann stated for a unan- imous Court that lesbians and gays in same-sex partnerships “are as capable as heterosexual spouses of expressing and sharing love in its manifold forms”, and “likewise as capable of forming intimate, permanent, committed, monogamous, loyal and enduring relationships; of furnishing emotional and spiritual support; and of providing physical care, financial support and assistance in running the common household”. Finally, gays and lesbians: “are capable of constituting a family, whether nuclear or extended, and of establish- ing, enjoying and benefiting from family life which is not distinguishable in any significant respect from that of heterosexual spouses”.1 But on whose terms—and on what basis—is recognition to be gained? Are our relationships to be recognised only if they are in all respects, save for the gender of our partners, indistinguishable from traditional heterosexual marriages? Or are we to assert an entitlement to self-definition and autonomy that will lead to distinctive forms of union? If the latter, just how far should the boundaries of convention be pushed? The call for full and equal recognition of same-sex partnerships has forced lesbian and gay communities to examine the nature of their demands and to re- evaluate their positions in societies that are often quite hostile to their demands. This has on occasion resulted in fundamental conflict within such communities themselves, sowing seeds of division amongst political activists, community- based organisations and those who just want to be like everyone else. At the heart of the conflict is the difficult choice often facing lesbian and gay people: 1 National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs, 2000 (2) SA 1 (Constitutional Court) at 32–3 (para. 53). vi Foreword “equality” on society’s terms, or continued marginalisation. At the heart of the conflict is the danger of being forced to accept an undignified position of com- promise: denial of the reality of lived experiences and the expression of diversity and difference. Legal formalism and a rights discourse uncritical of existing patterns of systematic discrimination and injustice have formed the backdrop to such divisive developments. A legal culture built on tradition and continuity does not easily revisit old assumptions, prejudices or practices, but more often justifies the pre- sent by appealing to the past, looking forward without learning from the mis- takes of yesterday. It is in such legal cultures that lesbian and gay people seeking legal protection for their families may be forced to appeal to an argument of sameness, to dismiss difference and to deny the richness of diversity. Recent developments do give cause for hope. The rights discourse is shifting, with formalism giving way to emphasis on the claims of substantive equality. This is not to suggest that formal equality is trivial. That would be wrong, since the attainment of formal equality represents a very real gain for those previously denied it. But it is to recognise a goal beyond that of only formal equivalence. In the words of Justice Albie Sachs, again of the Constitutional Court of South Africa: “What becomes normal in an open society, then, is not an imposed and standardised form of behaviour that refuses to acknowledge difference, but the acceptance of the principle of difference itself, which accepts the variability of human behaviour.”2 In Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law, Robert Wintemute and Mads Andenæs have brought together the writings of many respected jurists, academics, legal prac- titioners and activists from Latin America, Asia, Australasia, North America, Europe, the Middle East and Africa. This book is a thought-provoking, sub- stantial and much needed contribution to the debate on same-sex partnerships. At issue is the right of lesbian and gay people to family life, the scope and con- tent of the right, and its legal recognition and protection. The importance of the book lies first in its simultaneous reflection of unity and diversity. But it lies also in the way it brings the once marginalised into the mainstream. In effect, this book constitutes an international coming-out of legal thought and scholarship. In doing this so emphatically, proudly and authorita- tively, it serves as a powerful addition to a growing body of comparative legal studies. From theory to practice, from justification to critique, the book works its way through the complex and often intricately interconnecting relationships between law, legal process and social change. The essays in the book offer no simple solutions. The book however raises many questions. And it serves as a much-needed resource just when the highest courts of many countries are grappling with rapidly evolving conceptions of life 2 National Coalition for Gay & Lesbian Equality v. Minister of Justice, 1999 (1) SA 6 (Constitutional Court) at 68–9 (para. 134). Foreword vii partnerships and family life, attempting to make sense of the true implications of a commitment to substantive equality and to a new world order based on respect for and promotion of a culture of fundamental human rights. But it is also more than this: it is a testimony to the struggles waged by ordinary lesbian and gay people as they claim what the law has no right to deny them. It is a col- lection of battles lost and won, a documentation of the lives of those who—for far too long—have been excluded from history. In our newfound optimism, however, we must not forget that for most lesbian and gay people throughout the world, the legal recognition of same-sex partnerships is still a prize perhaps not yet even open for discussion. South Africa, whose Constitutional Court has produced perhaps the most limpid affirmations of gay and lesbian equality, has neighbours whose leaders denounce us in demeaning and often threatening language. In many countries, gays and lesbians are still beaten and imprisoned and even killed for expressing love. Our families are still torn apart by legal systems that equate homosexual- ity with child abuse. Many of us continue to be forced into marriages against our wills; and our rights to freedom and security, health care, employment, housing and social services are insufficiently recognised. As Justice Ackermann, again, noted: “The denial of equal dignity and worth all too quickly and insidiously degenerates into a denial of humanity and leads to inhuman treatment by the rest of society in many other ways.”3 While we continue to push boundaries, and to advocate for and claim our rightful places in society, let us remember that, for as long as lesbian and gay people face oppression anywhere, we cannot but regard our hard won freedoms as fragile, and only partial. The Hon. Justice Edwin Cameron Judge of the Supreme Court of Appeal, South Africa Acting Justice, Constitutional Court of South Africa, 1999–2000 3 Supra n.1, at 28 (para. 42). Acknowledgments HIS BOOK IS based on “Legal Recognition of Same-Sex Partnerships: A TConference on National, European and International Law”, Centre of European Law, School of Law, King’s College, University of London, 1–3 July 1999. The first person I must thank is my honorary co-editor Mads Andenæs, the former Director of the Centre of European Law (now Director of the British Institute of International and Comparative Law), without whose inspiration and support the conference would not have been organised, and this book would not have been published.

Load more