A fight for equal love rights

Partnership rights for gay couples are basic human rights, and religious doctrines should be irrelevant when devising secular laws enshrining them, argues Robert Wintemute.

At first glance, some might say that a claim by a same-sex couple to the same treatment as a different-sex couple does not look like a human rights claim. They might understand human-rights violations as being about extra-judicial killing, torture and imprisonment without trial. But this reaction is mistaken for two reasons: first, the right to be free from discrimination is itself a human right; and second, in some cases of discrimination, the symbolic value of the non-discrimination principle at stake is more important than the material benefits denied.

Nevertheless, this reaction does reflect a practical reality: that a non-discrimination principle will be taken seriously only once it has been well established in cases where the discrimination causes substantial, tangible harm. The case of race discrimination, for instance, began with the abolition of slavery and the extension of the franchise, before turning to segregation and unequal opportunities in education, employment and housing. By the time separate drinking fountains or beaches for whites and blacks in the United States and South Africa were being challenged, no one could claim that an important human-rights principle was not at issue because these facilities were "trivial".

A similar progression can be seen with sexual orientation and gender-identity discrimination. The first stage requires that certain "basic rights" be respected, such as the right to life, the right not to be arbitrarily detained and the right to freedom of expression. Without these, it is impossible for lesbian, gay, bisexual and transgendered (LGBT) individuals to form non-governmental organisations and campaign for legal reforms, or even to meet publicly.

The second stage is "sex rights". This covers all discrimination that interferes directly with an individual's sexual activity or gender reassignment; that breaches a positive obligation to recognise or fund their gender reassignment; or that interferes indirectly by imposing sanctions on them, such as denial of a job because of their gender reassignment or the actual or presumed orientation of their sexual activity.

The battle for "sex rights" has been largely won in the 43 Council of Europe countries, at least in the realm of legal principle, and putting aside ongoing problems with non-recognition or non-funding of gender reassignment, or sexual freedom issues that are shared by heterosexual and LGBT individuals. As a result, the new legislative and judicial battleground is partnership rights or "love rights": legal recognition and equal treatment of the relationships between LGBT individuals and their partners.

Progression to this third stage requires a society to acknowledge that there is more to the lives of LGBT individuals than a search for sexual pleasure. Rather, they have the same human capacity as heterosexual individuals to fall in love, to establish a long-term emotional and physical relationship, and potentially to want to raise children as part of a couple. When they choose to do so, they will often want the same opportunities as heterosexual individuals to be treated as a "couple", as "spouses", as "partners", as "parents", as a "family".

Questions of "love rights" or partnership rights began reaching the European Court and Commission on Human Rights in the early 1980s, but there has yet to be a successful case. However, these issues will not go away. Several cases are pending before international tribunals. Their decisions will be strongly influenced by developments in national law with regard to partnership rights. For heterosexual transsexual individuals and their non-transsexual partners, the law is quite simple if gender reassignment is legally recognised. For same-sex partnerships it is more complex. Their claims are almost always presented as claims to formal equality with married or unmarried different-sex couples. This makes them very powerful, because the heterosexual majority will generally not be willing to give up a right or benefit they enjoy merely to avoid extending it to same-sex couples. Thus, it is very unlikely civil marriage would be abolished to maintain the exclusion of same-sex couples.

Once the principle is established that there is a human right to be free from sexual orientation or gender identity discrimination, in the absence of a strong justification against it, the claims of same-sex couples require only that this principle be applied to their specific situation, and that justifications for denying them partnership rights be carefully examined. Indeed, it is only once such a principle has been adopted, and used to protect "sex rights", that claims to "love rights" or partnership rights will be taken seriously.

For conservatives, the justifications for denying partnership rights to same-sex couples include concerns about undermining traditional notions of marriage and family, religious objections and the argument that same-sex marriage will devalue marriage for heterosexuals. All can be defeated by rational argument. Moreover, in the case of civil marriage, we are talking about a public institution. A dominant group or majority, whether it is defined by sex, race, religion, sexual orientation or gender identity, cannot treat a public institution as its own private recreational space and exclude a subordinate group or minority, whether the public institution is a park, museum, legislature or legal regime. From a left or feminist perspective, some argue that same-sex couples should not be seeking access to civil marriage. Instead of civil marriage, they should secure all the rights and obligations of civil marriage, or a selection of the more desirable rights, through an alternative registration system with a different name, such as "registered partnership". However, this "separate but better" solution does not accommodate those same-sex couples who wish to have the symbolic benefits of marriage, and will feel that their relationship is stigmatised as inferior if they are confined to a separate institution. Nor does it address the problem of portability of a separate unfamiliar institution, either internationally or internally within a federal country.

Others maintain that same-sex couples should not be seeking any partnership rights at all, that marriage should be abolished and left to religious institutions, or stripped of any legal consequences. Benefits should be individualised or, where resource implications make this impossible, everyone should be able to designate one beneficiary. At the very least, sexual couple relationships should cease to be privileged, and any two persons in a non-sexual "close personal relationship" should qualify. These are all legitimate proposals, but it is unlikely that the institution of civil marriage will be abolished altogether, or renamed "registered partnership" for all couples or that the concept of a "partner", involving a "physically intimate personal relationship", will cease to have any legal relevance and be displaced by that of "designated beneficiary" or "close personal relationship". As long as this is the case, same-sex couples will seek partnership rights, including access to civil marriage.

Should these rights be universal human rights? In theory, yes. But there are enormous practical obstacles to be overcome in a world where only 20 out of 190 states have some form of legislation recognising same-sex couples. First, there is the absence of a functioning democracy or "basic rights" for individuals in many countries. Second, there is the huge influence of religious institutions on secular law in many countries, and the complete merger of religious and secular law in others. Even if every religion in the world agrees that LGBT individuals should be boiled in oil and cites ancient texts requiring this, religious doctrines must be deemed absolutely irrelevant in determining the content of secular laws and human rights.

Although it may be observed with varying degrees of strictness, a separation between law and religion is a defining principle of every liberal democracy. Without this, there can be no freedom of conscience and religion, for the beliefs of the religious majority will be imposed on others through the vehicle of the law. And the equation of religious and legal authority is itself incompatible with democracy. The religious majority may seek to have their beliefs reflected in secular laws, but they must do so through reasoned secular arguments. Religious texts or doctrines must be excluded from legislative and judicial debates because, unlike secular laws, they rely on an inaccessible, extra-democratic source of authority that cannot be challenged and overturned by reasoned arguments, other than in the very long-term.

People worldwide will gradually be persuaded of the correctness of the ideals of liberal democracy, and political, social and economic conditions will eventually permit their adoption. Partnership rights of same-sex couples are human rights, and we will convince most people in the end.

Robert Wintemute is a lecturer in the School of Law, King's College London. This article is an edited version of his lecture at this year's Oxford Amnesty Lectures, supported by The THES .