Same-Sex Relationships, Law and Social Change

Frances Hamilton, Guido Noto La Diega, Frances Hamilton, Guido Noto La Diega

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9781032175805
• eBook ISBN: 9780429664441
• Edition: 1
• Topic: Law
• Subtopic: Family Law
• Index: Law

This edited collection provides a forum for rigorous analysis of the necessity for both legal and social change with regard to regulation of same-sex relationships and rainbow families, the status of civil partnership as a concept and the lived reality of equality for LGBTQ+ persons.

Twenty-eight jurisdictions worldwide have now legalised same-sex marriage and many others some level of civil partnership. In contrast other jurisdictions refuse to recognise or even criminalise same-sex relationships. At a Council of Europe level, there is no requirement for contracting states to legalise same-sex marriage. Whilst the Court of Justice of the European Union now requires contracting states to recognise same-sex marriages for the purpose of free movement and residency rights, unlike the US Supreme Court, it does not require EU Member States to legalise same-sex marriage. Law and Sociology scholars from five key jurisdictions (England and Wales, Italy, Australia, Canada, and the Republic of Ireland) examine the role of the Council of Europe, European Union and further international regimes. A balanced approach between the competing views of critically analytical rights based theorists and queer and feminist theorists interrogates the current international consensus in this fast moving area. The incrementalist theory whilst offering a methodology for future advances continues to be critiqued. All contributions from differing perspectives expose that even for those jurisdictions who have legalised same-sex marriage, still further and continuous work needs to be done.

The book will be of interest to students and scholars in the field of human rights, family and marriage law and gender studies.

Part 1

The role of the European Court of Human Rights and the European Union in relation to the treatment of same-sex couples’ relationships

Chapter 1

The potential of European Union law to further advance LGBTQ+ persons and same-sex couples’ rights

Frances Hamilton

Introduction

Traditionally both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have been reluctant to recognise LGBTQ+ couples in their varying concepts of ‘family life.’ The situation is further complicated due to the diversity of responses across Europe to the recognition of same-sex relationships. Whilst 16 European countries (14 within the European Union [EU’]) now recognise same-sex marriage, other European countries recognise civil partnership only, with varying degrees of rights given to each same-sex couple.¹ In contrast, seven states within the EU, all in Eastern Europe, continue to constitutionally define marriage as between partners of the opposite sex only.² This difference in treatment of same-sex couples forms a complex web, made more difficult by the impact of globalisation.³ On a practical basis, couples need to know whether their same-sex union will be legally recognised.⁴ For proponents of same-sex marriage, there is also the added motivation of considering which court and type of claim may offer the best prospect of succesful recognition of rights.

This chapter argues that in recent years, the CJEU has begun to take a leading approach in furthering rights for LGBTQ+ persons and same-sex couples across Europe. The European Convention on Human Rights (European Convention, ECHR) is not an EU instrument, but the EU Charter of Fundamental Rights (EUCFR) provides that: ‘[i]n so far as this [EUCFR] contains rights which correspond to rights guaranteed by the [European Convention], the meaning and scope of those rights shall be the same as those laid down by the … [European Convention.],⁵ and expressly states that ‘[t]his provision shall not prevent [EU] law providing more extensive protection.’⁶ Two cases demonstrating a trend from the CJEU to offer more extensive protection for LGBTQ+ persons and same-sex couples in the context of both free movement and non-discrimination provisions are discussed throughout this chapter.

In Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and others: Case C-673/16 (Coman), the CJEU confirmed the prior opinion of Advocate General Melchior Wathelet that a same-sex marriage conducted in one EU Member State must be recognised in another for the purposes of free movement and residence rights of the non-EU citizen spouse.⁷ This is the case even when the receiving country, as is the case for Romania, does not recognise same-sex marriage. Coman represents a ‘welcome first step,’⁸ in moving away from years of EU stress on subsidiarity and demonstrates the expanding nature of EU citizenship and considerations of who are EU family members. In MB v Secretary of State for Work and Pensions (MB), the CJEU determined that provisions of the UK Gender Recognition Act 2004 (GRA) which required transpersons to annul existing marriages in order not only be recognised in their new sex but to access state pension benefits at the age ascribed to their acquired gender was discriminatory on the ground of sex.⁹ The requirement to annul a pre-existing marriage is no longer necessary to obtain a full gender recognition certificate,¹⁰ but that requirement still applied at the time MB came to claim her pension in 2008.¹¹ This had a direct impact on MB, as the United Kingdom (UK) state still officially recognised her as male (as she did not wish to annul her pre-existing marriage), she could only claim her pension from the age of 65, as opposed to the age of 60 for women as then stipulated by legislation (prior to state pension reform).¹² The CJEU’s judgement demonstrates a willingness to depart from more restictive case law on this particular point,¹³ but also to reach further expanding understandings of the widening concept of non-discrimination rights to be given to LGBTQ+ persons who are EU citizens.

After a brief critique of the traditional position of the EU and the ECtHR regarding treatment of LGBTQ+ persons and same-sex couples, the next sections examine further influences widening CJEU opportunities to act in this respect. Factors of EU citizenship resulting in extensive free movement provisions and non-discrimination requirements, coupled with the promince of these points in comparison to subsidiarty considerations before the CJEU, will be discussed, all demonstrating the possibilities of CJEU expansion of rights for LGBTQ+ persons and same-sex couples. If Brexit affects free movement of persons, as it is likely to, UK LGBTQ+ persons and same-sex couples will no longer be able to benefit from expanding EU free movement rights and interventions by the CJEU.

Traditional position of the ECtHR and the EU regarding treatment of LGBTQ+ persons and same-sex couples

The ECtHR has played a major role in the advancement of LGBTQ+ persons’ rights. ECtHR cases have resulted in judgements requiring contracting states to decriminalise sodomy laws,¹⁴ to require equality in employment as regards sexual orientation¹⁵ and in tenancy conditions for LGBTQ+ persons.¹⁶ Historically, however, the ECtHR did not consider that same-sex relationships could generate ‘family life.’¹⁷ Such unions were considered as being relevant in reference to a right to a private life only.¹⁸ This led to much criticism that the traditional position before the ECtHR overtly favoured heterosexual relationships¹⁹ and restricted the ‘evolution’ of LGBTQ+ persons’ rights in Europe.²⁰ The ECtHR has continued to incrementally advance the position of same-sex couples. Same-sex couples are now included within the definition of family life,²¹ advances have been made to protect LGBTQ+ persons’ adoption rights²² and contracting states are required to recognise some form of legal protection for same-sex couples²³ and to recognise same-sex marriages conducted abroad.²⁴ Ultimately, due to concerns about the ‘deep rooted social and cultural connotations’ of marriage,²⁵ leading case law from the ECtHR confirms that a consensus must develop between contracting states, before it is prepared to move forwards on this issue.²⁶ Whilst on other areas of family law the ECtHR also prefers to be deferential towards contracting states and allows them a large margin of appreciation (MoA) to determine matters for themselves as informed the national context,²⁷ when considering the quickly advancing case law for LGBTQ+ persons just set out, in contrast, same-sex marriage can be regarded as being a ‘lex specialis’ which requires special consideration.²⁸

Traditionally the CJEU was even stricter than the ECtHR with regards to its treatment of LGBTQ+ persons and same-sex couples. Former case law rejected inclusion of sexual orientation within the ground of sexual orientation discrimination.²⁹ Only traditional family formats were included within the scope of family life.³⁰ Although free movement provisions referred to spouses and registered partners within the definition of family member, prior to the recent Coman case,³¹ EU law stressed subsidiarity. Member States were free to determine their own policy with regards to recognition of same-sex unions.³² This ignored not only the apparent gender neutrality of the word spouse,³³ but the imperative of free movement.³⁴ In one commentator’s view, this privileged the heterosexual norm.³⁵ Cohabitants have never been explicitly included within the EU ‘family member’ definition, having to prove their relationship ‘duly attested.’³⁶ This latter definition is vague, and does not automatically allow partners to move with their EU citizen partner. Instead, all it requires is for the host Member State to be able to demonstrate thoroughly that they have investigated the personal circumstances concerned.³⁷

The restrictive interpretation of ‘family member’ had real consequences. Prior to the Coman case, non-EU national same-sex spouses could not relocate with their EU citizen s...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• List of contributors
• Introduction
• Part 1 The role of the European Court of Human Rights and the European Union in relation to the treatment of same-sex couples’ relationships
• Part 2 Differing paths towards legalisation of same-sex marriage
• Part 3 Rainbow families
• Part 4 The importance of civil partnership in an era of same-sex marriage
• Part 5 The heteronormative underpinnings of same-sex marriage
• Part 6 Consideration of the necessity of both social and legal change, and the interaction between them
• Index