The Equal Rights Review Promoting equality as a fundamental human right and a basic principle of social justice In this issue: ■ Special: Equal Rights to Family Life ■ Marriage equality in Indonesia and Ireland ■ Testimony from an intersex person ■ Equality legislation in Bosnia and Herzegovina ■ Domestic servitude in Singapore ■ Equality jurisprudence in the Caribbean The Equal Rights Review Volume Ten (2013) Ten Volume Review Rights The Equal Biannual publication of The Equal Rights Trust Volume Ten (2013) Contents 5 Editorial Equal Rights to Marry and Found a Family Articles 11 Arif Bulkan The Poverty of Equality Jurisprudence in the Commonwealth Caribbean 33 Libby Clarke Behind Closed Doors: Trafficking into Domestic Servitude in Singapore 59 Adnan Kadribašić Developing Equality Legislation in Divided Societies: the Case of Bosnia and Herzegovina Special 83 Jens M. Scherpe The Legal Recognition of Same-Sex Couples in Europe and the Role of the European Court of Human Rights 97 Saskia E. Wieringa Marriage Equality in Indonesia? Unruly Bodies, Subversive Partners and Legal Implications 111 Katherine Zappone In Pursuit of Marriage Equality in Ireland: A Narrative and Theoretical Reflection 123 Ariel Dulitzky Case Note: Indirect Discrimination, Reproductive Rights and Hannah Zimmermann and the In Vitro Fertilisation Ban Testimony 133 Equal Rights for Intersex People: Testimony of an Intersex Person Interview 143 Developing Law and Policy: Progressing towards Equal Rights to Family Life. ERT talks with Ian Curry-Sumner and Stephen Gilbert Activities 151 The Equal Rights Trust Advocacy 159 Update on Current ERT Projects 184 ERT Work Itinerary: July – December 2012 4 The Equal Rights Review is published biannually by The Equal Rights Trust. The opinions expressed in authored materials are not necessarily those of The Equal Rights Trust. Editor: Dimitrina Petrova Assistant Editor: Joanna Whiteman Advisory Editorial Board: Sandra Fredman, Colin Gonsalves, Bob Hepple, Claire L’Heureux-Dubé, Christopher McCrudden, Bob Niven, Kate O’Regan, Michael Rubenstein, David Ruebain, Sylvia Tamale © March 2013 The Equal Rights Trust DesignPrinted and inlayout: the UK Dafina by Stroma Gueorguieva Ltd ISSN: 1757-1650 All rights reserved. No part of this publication may be translated, reproduced, stored in a retrieval system or transmitted in any form or by any means without the prior written permission of the publisher, or a licence for restricted copying from the Copyright Licensing Agency Ltd., UK, or the Copyright Clearance Center, USA. Support the cause of equality The Equal Rights Trust is a charity relying on the support of the public. To make a donation online, please visit www.equalrightstrust.org, or send a bank transfer, The Equal Rights Trust’s account chequenumber to the with office Coutts address Bank below. (UK) is:For 07130988; donations by IBAN GB43COUT18000207130988; Bank address: Coutts & Co., 440 Strand, London WC2R 0QS The Equal Rights Trust 126 North End Road London W14 9PP United Kingdom Tel.: +44 (0)207 610 2786 Fax: +44 (0)203 441 7436 [email protected] www.equalrightstrust.org The Equal Rights Trust is a company limited by guarantee incorporated in England and a registered charity. Company number 5559173. Charity number 1113288. The Equal Rights Review, Vol. Ten (2013) 5 Editorial Equal Rights to Marry and Found a Family International human rights law can be said suit, accordingly. If anything, with the new to be very family-friendly. A basic assump- reproductive technologies, types of adop- tion underlying the entitlement to protection tion, and the evolving forms of marriage, it of the family by the state is that “the family is almost certain that, in the not too distant is the natural and fundamental group unit of future, the “family” will come in even more society” – a phrase found in Articles 16 of the shapes and sizes than the rich variety of his- Universal Declaration of Human Rights, 23.1 toric units under that name. of the International Covenant on Civil and Political Rights and 10.1 of the International Fundamental rights related to marriage Covenant on Economic, Social and Cultural and the family in international human Rights. A slightly expanded wording is found rights law include: in the 1989 UN Convention on the Rights of the Child, whose Preamble refers to “the fam- (i) The protection from interference with ily, as the fundamental group of society and one’s family, analogous to and mentioned to- the natural environment for the growth and gether with, the protection from interference well-being of all its members and particu- with one’s privacy, home or correspondence larly children”. – the right to be free from “arbitrary interfer- ence” with one’s family (Article 12 UDHR); But the family appears to be not just a “unit”, from “arbitrary or unlawful interference” be it natural or otherwise. International hu- with one’s family (Article 17 ICCPR); or the man rights law instruments that make up “right to respect for his (…) family life” (Ar- ticle 8 ECHR). sentences of their preambles, refer to “the humanthe international family”, meaning bill of allrights, of humankind in the first as (ii) The right to marry and found a family one “family”, presumably as opposed to oth- (Article 16.1 UDHR, Article 23.2 ICCPR, and er species. Therefore, apparently, no human Article 12 ECHR, among others). person can ever be absolutely orphaned – or is the “human family” here just a metaphor? (iii) Certain other rights construed with ref- erence to the family – including the protec- So, the question is, unsurprisingly, what is the tion of the family “by society and the state” family? How does it relate to marriage and (Article 16.3 UDHR, Article 23.1 ICCPR, Arti- what type of marriage, if any, has to be recog- cle 10.1 ICESCR, etc.). nised as the basis of the family? The notion of the family has changed over time in most The rights to equality related to marriage contemporary cultures, and this change is far and the family have been interpreted to com- from over. Family laws have been following prise, inter alia: The Equal Rights Review, Vol. Ten (2013) 6 (i) Equality between spouses, i.e. equal tions to “opt in” to conducting same sex mar- rights of spouses “as to marriage, during riage. The Equal Rights Trust participated marriage and at its dissolution” (Article 16. in the consultation process, welcoming the 1 UDHR, Article 23.4 ICCPR, as well as the Bill but pointing out elements of remaining detailed provisions of Article 16 of the Con- sexual orientation discrimination in it. In its vention on the Elimination of All Forms of legal opinion, ERT took issue with the way in Discrimination against Women, which is which the Bill seeks to balance non-discrimi- honoured in the breech in many countries nation against lesbian, gay and bisexual per- that have made reservations on this article in sons with religious freedom. In the unique favour of sharia law or custom). situation of the UK, religious organisations conduct marriages that are recognised and (ii) Non-discrimination in relation to the regulated by the state – in contrast to the right to marry and found a family – the equal secular approach of countries like the Neth- rights of each person “of full age” (Article erlands, where religious marriages have no 16.1 UDHR, Article 23.2 ICCPR, Article 12 legal value and, as Ian Curry-Sumner points ECHR), having a protected characteristic, out in this issue, it is a criminal offence to such as race, nationality or religion, to marry conduct a religious marriage before a civil and found a family, on an equal basis with marriage has taken place. Most British peo- persons who do not have that characteristic. ple marry in an Anglican or a Catholic church and this is the only marriage ceremony that It is this second aspect of family rights equal- takes place for them; no separate civil cer- ity, protected by common Article 2 of ICCPR emony is necessary. In our brief to the Par- and ICESCR and Article 26 ICCPR, as well as liamentary Committee on the Bill, we argued regional treaties, which is the focus of this is- that when religious organisations conduct sue of The Equal Eights Review. The materials marriages which are recognised and regu- published in these pages tackle some of the lated by the state they perform a public func- key aspects of equality in respect to enter- tion and that international human rights law ing a marriage and founding a family without and the UK Equality Act 2010 require such discrimination. One of the big issues of our functions to be carried out in a non-discrim- time, same sex marriage, is the central topic inatory manner. While religious organisa- of two of the articles in the Special section as tions should be free to conduct religious cer- well as the double Interview. Same sex mar- emonies in accordance with their beliefs and riage recognised by law realises the right to tenets, when stepping in to act in lieu of the equality of each person in the enjoyment and state in a public function – conducting state- exercise of the right to marry and found a recognised marriages – churches should not family, without discrimination on the ground be permitted to discriminate against people of sexual orientation. on the protected ground of their sexual ori- entation. However, the UK government has At present, many countries around the world pre-empted any debate on this issue by mak- are considering the adoption of same sex ing a very strong promise to the established marriage laws, including the United King- church and other religious organisations dom. The Marriage (Same Sex Couples) Bill that they will never be required to conduct 2013 opens up access to the institution of same sex marriages, and that their exemp- marriage to same sex couples through civil tion from the equal treatment principle will ceremonies and allows religious organisa- be set in stone.