Conferences and reports: De facto couples, gay partnerships, family diversity, “Christian” fanatics = Fun times

[Originally posted at Potatriotique]

Friday, 26th May 2006, saw the culmination of a number of public events this month broadly dealing with various aspects of family diversity, that is to say, families outside the traditional mammy-daddy-2point4-children marital unit.

After the recent launch and speech in April by our Bertie at the GLEN offices, the month of Mary saw

- The presentation of a document commissioned by the Irish Human Rights Commission, entitled The Rights of De Facto Couples [PDF file] (12thMay, 2006);
- The publication by the ICCL of their report, Equality For All Families [PDF file] (23rd May, 2006); and
- The hosting of a conference by the Equality Authority, GLEN and the Working Group on Domestic Partnerships entitled, The Legal Status of Cohabitants and Same Sex Couples (26th May, 2006).

For “The Rights of De Facto Couples”, the IHRC commissioned this research report, authored by Judy Walsh and Fergus Ryan, which provides a comprehensive account of the international human rights standards applicable to de facto couples, and examines the current legal situation of de facto in Ireland against that context of international law.

Unlike the IHRC-commissioned report, which essentially set out out Ireland’s current legal framework and its obligations as the international legal requirements currently exist, the ICCL’s publication – “Equality For All Families” – takes a slightly different approach. It examines the constitutional, legislative and policy contexts, plus the international human rights standards and EU laws, as well as comparing other jurisdictions. Its methodology also differs, seeking consultation with members of the public and certain non-governmental organisations. In addition, its recommendations – rather than calling for Irish law to be brought into line with international legal standards – seek reform of the existing law.

The Conference brought together eleven eminent speakers from Ireland and abroad:
- Karen Erwin of the Equality Authority;
- Michael McDowell, Minister for Justice, Equality and Law Reform;
- Eoin Collins of GLEN;
- Niall Crowley of the Equality Authority;
- Madame Justice Claire L’Heureux-Dubé, formerly of the Canadian Supreme Court;
- Dr. Kees Walldijk of the Universiteit Leiden, the Netherlands;
- Eilis Barry BL, legal advisor to the Equality Authority;
- Ray Byrne of the Law Reform Commission;
- The Rt. Hon. Baroness Hale of Richmond of the House of Lords;
- Beatriz Gimeno of FELGT, Spain; and
- Anne Colley, Chairperson of the Working Group on Domestic Partnership.

I’ve attempted to highlight some points from each of the reports and from the Conference, and throw in one or two comments of my own.

It’s lengthy (I’m going to reward myself with a beer and a smoke), so click-on, if you dare . . .

The IHRC document: “The Rights of De Facto Couples”

The IHRC commissioned this document, a research report authored by Judy Walsh and Fergus Ryan, which provides a comprehensive account of the international human rights standards applicable to de facto couples, and examines the current legal situation of de facto in Ireland against that context of international law.

The report, for its purposes, includes both opposite-sex and same-sex couples, in a relationship that is “conjugal in nature, involving the existence of, or potential for, a sexual relationship”, in its definition of the term de facto couple.

The report explores the areas of European Community law (largely relating to the EU and the EU’s European Court of Justice (ECJ), which adjudicates on matters of interpretation of EU law (see also)), Council of Europe (CoE) treaties (especially the European Convention on Human Rights (ECHR) and the jurisprudence of the European Court of Human Rights (ECtHR), the tribunal charged with interpreting the provisions of the Convention), and United Nations instruments (such as the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC), among others).

It then sets domestic Irish law against that international context, examining aspects of the Constitution and legislation. In particular, attention is given to the legislation which is potentially in breach Article 14 of the ECHR.

These include, among others, the Domestic Violence Act 1996, section 3; the Civil Liability (Amendment) Act 1996, section 1; Parental Leave Act 1998, section 13 (Note that this Act has since been amended to permit force majeure leave regardless of sexual orientation by section 8 of the Parental Leave (Amendment) Act 2006 [PDF file]); Residential Tenancies Act 2004 [PDF file], section 39. Section 19 of the Social Welfare (Miscellaneous Provisions) Act 2004 [PDF file] was also noted for potenially being in breach of both ECHR jurisprudence and Article 26 of the ICCPR.

(Note that while the law emanating from UN treaties is not necessarily binding on a state (unless already incorporated into domestic law), states which are party to the ECHR treaty are obliged to uphold the decisions of the European Court of Human Rights. It should also be remembered that international human rights standards – whether under the UN system or the CoE system – are the minimum standards required of governments.)

Also detailed is the EU legal framework, which is by definition narrower (being as it is the law relating to a single economic market). However, by necessity, the laws of the EU have an impact on social matters, and thereby have a limited impact on the issues of family and marriage. All states, therefore, must meet the requirements of EU laws and ECJ decisions. The report names the two primary areas of relevance for de facto couples as being employment and freedom of movement.

It is important to bear in mind, too, that the ECJ increasingly relies on ECtHR jurisprudence when having to decide on matters relating to discrimination and the individual rights of persons. (It is also the case that the EU’s non-binding Charter of Fundamental Rights – which currently forms one of the three parts of the Draft EU Constitution – is based largely on the provisions of the ECHR.)

A potential parallel to the Article 26 protections of the ICCPR exists in Protocol 12 to the ECHR. This Protocol contains a general prohibition on discrimination, and differs from the Article 14 ECHR prohibition in that Protocol 12 creates an independent guarantee of equal treatment, while the provisions of Article 14 can only be invoked in relation to another right of the convention (for instance, if there were a case of Article 14 discrimination in relation to the Article 8 right to privacy).

This Protocol has entered into force, but Ireland, having signed, has yet to ratify. The report explores the potential impact of Protocol 12.

Interesting, and timely, to note is the fact that the authors make reference to what is known as the “Margin of Appreciation” (MoA) (in EU jurisprudence, the concept is known as the “principle of subsidiarity”) and some evidence to suggest that MoA in certain instances is narrowing.

The MoA (or principle of subsidiarity) is a concept in international (or EU) law whereby a state is given latitude or discretion in certain areas (usually in what may be viewed as sensitive areas, e.g. family law). The MoA can come into play when the “principle of proportionality” is applied. The authors explain that, in essence this principle requires that “action undertaken must be proportionate to its objectives; that is, no more than is necessary to achieve the latter.” The underlying notion is that courts must strike a fair balance between various competing interests, classically those of the individual and the wider community.

The principle of proportionality is employed at each of the spheres of ICCPR, ECHR, ECJ and domestic jurisprudence. The authors pointed out that, while international human rights institutions accept that the protection of traditional family forms is a legitimate state aim, they require that “associated measures be assessed in light of any adverse impact on the human rights of other persons”. They continue: “[T]here is some evidence that the margin of appreciation afforded States in this area is narrowing and in turn the respective weight ascribed to protecting conventional values on the one hand, and the protection of em>de facto families on the other, is shifting.”

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Following the publication of this report, some commentators criticised the report for failing to “recognise marriage as a human right” [DOC file]. What these critics fail to understand, however, is that marriage is not recognised anywhere in international law as a human right per se, nor does there exist such a right for same-sex couples to marry. Indeed, the authors were compelled to issue a clarifying statement some days after the report’s launch:

The De Facto Couples report published recently by the Irish Human Rights Commission has attracted an amount of attention from the LGBT community in particular.

As the co-authors of the report, we feel that a couple of matters need to be clarified.

First, the report does not represent the views or policy stance of the Human Rights Commission; it is an independent commissioned piece of research.

Second, contrary to what some media coverage and associated commentary suggests, the research was not meant to outline the ideal scenario for relationship recognition; it was confined to setting out Ireland’s obligations under international human rights law.

In other words, our task was to detail what the Government must do, as opposed to what it should do.

The very first paragraph of the report makes it clear that its parameters are limited to describing the standards developed under European and United Nations treaties and determining whether Irish law is in line with those standards.

Unfortunately, currently there is no legal right (under either international or EU law) to marry a same-sex partner, but the State is obliged to enact a registration scheme similar to that introduced in the North under the terms of the Good Friday Agreement.

Hence we conclude that the Government must enact a civil partnership law. At the same time we state that the Government is free to go beyond what is required under international human rights law by removing the ban on same-sex marriage.

I’m sure people will appreciate that if we had said that the Government was obliged to provide for same-sex/queer marriage, the report would not have had any credence.

As academics we felt it was important to counter some of the misunderstandings circulating about our research.

The full report can be read here [PDF file].

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The ICCL document: “Equality For All Families”

Unlike the IHRC-commissioned report, which essentially set out out Ireland’s current legal framework and its obligations as the international legal requirements currently exist, the ICCL’s publication takes a slightly different approach. It examines the constitutional, legislative and policy contexts, plus the international human rights standards and EU laws, as well as comparing other jurisdictions.

(The jurisdictions examined were: Canada, UK Belgium, the Netherlands, Spain, South Africa, Massachusetts, New Zealand, Denmark, Norway, Sweden, Iceland, France, Germany, Finland. In relation to the UK, reference was made to the Good Friday Agreement, which contains what are known as equivalence requirements, in relation to rights north and south of the border (see Colm Ó Cinnéide, Equivalence in Promoting Equality) and the UK’s Civil Partnership Act 2004, which is in force in Northern Ireland. As with the IHRC-commissioned report, the ICCL makes note of the trend across other legal systems to recognise same-sex relationships.)

The ICCL report then makes recommendations for Ireland to go further than those minimum legal standards and instigate legal reforms. It also makes recommendations in relation to equality for all family types outside the the de facto couple scenario (for instance, to include solo parent families), and makes recommendations in relation to children.

The publication’s objectives were to:

- Review the current status of unmarried couples and other family groupings under Irish law and policy;
- Highlight breaches of international human rights standards and devlopments in other jurisdictions; and
- Make a series of recommendations on constitutional and legislative reform designed to ensure legal recognition of and enhanced state support for various interpersonal relationships.

Moreover, the methodology of the ICCL report differs from the IHRC-commissioned report: While the latter essentially carried out an examination of the laws as written, the ICCL report also sought the views of various constituencies to inform its content. Those who are affected by the current legal framework in Ireland – in its exclusionary aspects or where the law is silent altogether – had an input into the report through public consultations in Dublin and Cork and through dialogue with representative non-governmental organisations (NGOs). The report itself contains a number of case-studies – four in total – concerning the experiences of a number of couples and individuals, and Appendix 2 of the report collates the feedback from the two public consultations. (At the report’s launch, the convenor of the Working Group which compiled the report pointed out that, had resources been available, more consultations would have been carried out.)

It should be stated that the key bases for reform on which the ICCL report relies, and which according to it should inform change in law and policy, are the principles of equality and personal autonomy.

As mentioned, the recommendations of the ICCL report include recommendations to reform the existing law in Ireland. An “imperative element” for reform, according to the report, is amendment to the Constitution. Without a referendum, the provisions of Articles 41-42 will remain below even the minimum standards found, for example under Article 8 of the ECHR, in relation equality of rights and duties for various family forms. Additionally, without a referendum, the rights of the child, as enshrined in the UN Convention of the Rights of the Child, can never be vindicated under a Constitution which currently contains no provisions in respect of childrens’ rights.

The legistlative change urged by the report – following a Constitutional amendment as recommended – would be in respect of three main areas: marriage, relationship recognition, a presumptive regime for cohabiting couples and children.

Such legislative reforms, the report says, should be designed to “secure equality between different types of families, while respecting individual autonomy and ensuring that persons are treated equally within the relationships they form”.

The report acknowledges that marriage is a social custom, a religious concept, “and more importantly, a legal contract”:

The secular purpose of marriage is to provide a framework that enables people to express their commitment to one another, receive public recognition and support, and voluntarily assume a range of legal rights and duties.
. . .

Further … since the State’s involvement in marriage is secular in nature, the current distinction between opposite-sex and same-sex couples cannot be justified.

I addition to achieving parity between marital and de facto families, the report is concerned with “the equalisation of power relations within a marital relationship itself”.

One instrument of EU law which was not specifically mentioned in the IHRC-commissioned report, but which is dealt with by the ICCL, and which may have potential impact in the marital context is what is known as the Brussels II regulation (Council Regulation [PDF file] 2201/2003 of 27 November concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters relating to parental responsibility).

This regulation deals with matters relating enforcement of judgments in matrimonial issues, and parental responsibility. As it is an EU regulation (as opposed to a directive or a decision), it is obligatory in all its elements and directly applicable in all EU member states. What Brussels II requires is enforcement of any judgment in relation to: divorce, legal separation or marriage annulment; and the attribution, exercise, delegation, restriction or termination of parental responsibility.

This particular regulation is interesting, I think, because of the potential impact it could have in Ireland – an impact perhaps unforseen when the Irish government first negotiated the Brussels II precursor. Brussels II came into force in March 2005 and now forms part of Irish law. There may be reasons (for example, such as where “such recognition is manifestly contrary to the public policy of the Member State” [see Article 22(a) of the regulation]) why Brussels II might not be applicable, but such instances would be exceptional under the regulation. Assuming, then, that the Irish courts are bound by the provisions of the regulation, it would be a legal absurdity for Ireland to enforce a divorce, perhaps, relating to the marriage of same-sex couple in Spain, for instance, but for Ireland not to have any legal cognisance of the marriage which is dissolved by that divorce.

In relation to non-marital relationships – for example, where a couple who has the option to enter into marriage chooses not to do so – the report recommends legislative change to recognise such relationships, and recommends also establishing a presumptive scheme. The report argues that respect for individual autonomy is undermined if the State attaches more benefits to some relationships, while effectively – as William Binchy might put it – penalising others. In this respect, the ICCL suggests a “subsidiary system of rights between members of a de facto family, i.e. a system which is different to marriage but which couples may choose to enter into as a result of ideological, religious, political or other objections to the institution of marriage itself”.

In recommending a presumptive scheme, the ICCL report expresses the belief that this is necessary for unmarried couples that do not enter marriage or a registered partnership: “While both marriage and registered partnerships are opt-in schemes, a presumptive regime such as that suggested by the Law Reform Commission operates so that certain rights/duties automatically accrue once persons have cohabited usually for a specified number of years.”

Finally, and an area which I believe is of most importance (and certainly every bit as important), is the issue of children’s rights. As is the stated postition, at least, of practically every jurisdiction, the best interests of the child are paramount. Unfortunately, the Irish Constitution doesn’t live up to this basic standard, even though the courts seek to apply this very doctrine. As the report states: “Constitutional reform is central to ensuring human rights-based and child centred family policy…” In would go further and say that without Constitutional reforms to enshrine the rights of children (as enunciated in the UN Convention on the Rights of the Child), a human rights-based approach is impossible where children are involved.

The ICCL report recommends that any revised provisions of the Constitution include:

An express guarantee of children’s rights based on similar provisions in section 28 of the South African Constitution and the UN Convention on the Rights of the Child (CRC). The provision must contain explicit recognition of the obligation that the best interest of the child shall be paramount in decisions impacting on the life of the child, and that in decisions concerning parenting of the child there shall be no discrimination on express grounds including gender, marital status, sexual orientation, nationality, race and ethnic origin or disability.

[Hyperlink added by me.]

In discussing the possibility for legislating in relation to children, the report states clearly that the best interests of children must be prioritised in relation to any reforms, and continues: “Children should not be discriminated against because of the status of their parents’ relationship.” This is crucial, as far as I am concerned (and it reflects Article 2(1) of the UN CRC).

Irrespective of whether non-marital relationships are defined by a registered partnership or through co-habitation, the ICCL report recommends a number of changes to the present law and practice:

Guardianship – Where a partnership in a relationship is a non-biological parent and is caring for and residing with a child, this relationship needs to be given recognition. The State ought to pay particular attention to reconstituted families and should review the guardianship model to take account of non-biological parents. This would enable a child to maintain a relationship with his or her non-biological parent upon the dissolution of the adults’ relationship or if the natural parent dies. Further, non-biological parents who are legal guardians would be obliged to provide maintenance for the child if the relationship between the couple ends.

Adoption – Unmarried opposite-sex and same-sex couples should be permitted to adopt jointly – the determining factor being the best interests of the child – assessing each potential couple individually – irrespective of sexual orientation or marital status. In particular, this would facilitate couples where there are children from a former relationship. Permitting unmarried couples to adopt would ensure that a child has two legall-recognised parents. As in the case of marital breakdown, the child would have a right to maintain a relationship with both parents upon dissolution of the relationship.

Employment leave – Parental leave should be available to any individual acting in a parental role to a child. The ICCL welcomes the proposed amendment to the Parental Leave Act 1998 enabling all those acting in loco parentis to take time off to care for their children.

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The Conference: “The Legal Status of Cohabitants and Same Sex Couples

And so to the Conference on the 26th May, which got off to a terribly exciting start, with cranks from the Ancient Order of Hibernians (and, one suspects, members of the Mother and Child Campaign/Youth Defence) causing all sorts of ruckus, throwing copies of the Constitution and – for some, no doubt profound, reason – tearing up the conference timetable. I think that little incident is the only thing that kept the hardcore delegates sane through nigh-on eight hours of sitting and listening (with some Q&A during the plenary session, where you can be damn sure there was no sign of Michael McDowell).

The Conference heard at least eleven speakers, of whom the highlights for me were Madame Justice Claire L’Heureux-Dubé, the Rt. Hon. Baroness Hale of Richmond, Beatriz Gimeno, Eilis Barry and Niall Crowley.

Mme. L’Heureux-Dubé, a Canadian Supreme Court judge from 1987 until 2002 and currently a member of the Faculty of Law at l’Université Laval, gave an overview of the case-law in Canada prior to (and precipitating) the amendment to the federal law to permit same-sex couples to marry.

[I hope to be able to upload a scanned PDF copy of her speaking notes -to somewhere- and link to it from here. In the meantime, some points from her speech can be read here (scroll to the end of the page).]

Baroness Hale, of the highest court in England and Wales, the House of Lords, likewise gave an inspiring speech, providing much food for thought in relation to the development of the case-law in relation to same-sex couples and the impact of ECtHR jurisprudence (and later the Human Rights Act, incorporating the ECHR into UK domestic law), leading up to the enactment of the Civil Partnership Act. Although the UK operates with an unwritten constitution (unlike Ireland’s written, not to mention restricted and restrictive Constitution), it was interesting to hear of the developments from another common law jurisdiction – the only other common law jurisdiction in the EU.

Unfortunately, we were not provided with speaking notes for Baroness Hale, as far as I am aware, but similarly some points from her speech can be found here.

In some respects, the speech given by Beatriz Gimeno, President of Spanish NGO, FELGT (the State Federation of Lesbians, Gays, Bisexuals and Transsexuals), provided something of a jolt. Rather than delving into the legal system of Spain, she outlined the strategy taken by FELGT in its ten-year campaign for equality. Her speech was concise, clear and specific. The strategy she described was logical, focussed and relentless. If only Irish LGBT groups had the strenght of mind to act similarly.

As with Baroness Hale (and perhaps because Gimeno was speaking through a translator), speaking notes were not provided. The main points of her speech can, however be found here.

Eilis Barry provided an excellent overview of the law domestically and internationally. I suppose it could be said that she distilled down the key issues of the IHRC-commissioned report and the ICCL’s report – along with useful statistical and other information – into the 34 pages of her speaking notes. In speaking, she summarised that document, but it probably is worth having for anyone with even a cursory interest in this area, as a useful guide.

[As with the notes of the speech by Mme. L'Heureux-Dubé, I hope to be able to upload a scanned PDF copy of these notes to the interweb, to be linked here. Barry's document is comprehensive (read "vast"), but if it's possible to upload 34 pages, then they should hopefully appear here soon.]

I say finally, but Niall Crowley was amongst the first speakers at the conference. [Similarly, I hope to upload copies of his speaking notes at a later stage.] The CEO of the Equality Authority, his presentation placed the Conference in some context, and went on to discuss the case for equality in terms of access to a recognition, status and standing in society for LGBT people; and the consequences of failure to achieve such equality of recognition, status and standing for LGBT people.

In respect of the latter, Crowley made reference to the recent case (familiar – perhaps notoriously – to many LGBT people with an interest) involving a lesbian couple who were playing pool in Malone’s pub in Blarney, Co. Cork. When one of the women gave her partner a good luck kiss before a game, the owner of the pub informed her that if she did not refrain from such behaviour she would be asked to leave. The two women later hugged, at which point the bar staff cleared the pool table and turned off the table lights. After a further exchange with the owner of the pub, the couple left.

Crowley continued:

The women took a case of discrimination on the sexual orientation ground under the Intoxicating Liquor Act. They won the case. However, the District Justice awarded no compensation and indicated that they were the authors of their own misfortune.

Crowley asserted that this incident is reflective of a wider experience, citing the 2006 LGBT Hate Crime Report, published by Johnny, and “Straight Talk“, a research publication on gay and lesbian issues in the school curriculum published by Dublin City University.

The highlight of his speech, for me, was at the end: Describing “Principles to underpin change”, Crowley discussed the notion of fairness. Essentially, he claimed juxtaposed concepts of “fairness” and “tolerance” against “equality” and “acceptance”/”valuing”.

It is these disadvantages that accrue to gay and lesbian couples that have provided the immediate basis for a growing consensus for change in relation to legal recognition for same sex couples. These disadvantages are deemed to be unfair. Fairness is put forward as the driver for change. Fairness, however, must be identified as a seriously limited driver for change.

Fairness can provide the basis for removing the tangible disadvantages experienced by lesbian, gay and bisexual people due to the absence of a legal recognition for their relationships and by transgender people due to the absence of legal recognition for them in the gender with which they identify. Fairness can be achieved through some limited legal formula to accord certain specified rights to transgender people and to same sex couples. However, this fairness will merely co-exist with and even reinforce inequalities in recognition – inequalities that underpin relationships of abuse, hostility and disrespect.

Fairness is a core concept in what is a very particular approach to equality. This approach seeks a fair basis on which to manage inequalities by strengthening the minimum to which everyone is entitled and by using equality of opportunity to regulate competition for advantage. It is an approach that emphasises tolerance of difference rather than a valuing of difference. This approach to equality has been critiqued in that it can accept and co-exist with significant levels of inequality. Tolerance as a response to difference has been critiqued in that it can co-exist with ignorance and contempt for this same difference.

A more ambitious principle of equality must inform and shape the policy response to the need for legal recognition for transgender people in the gender with which they identify and for same sex couples.

Who can say if it was mere coincidence that just a couple of weeks prior to the Conference, the Minister for Justice (as well as purporting to know what “most gay people” want) spoke in terms of “fairness” when describing a minimalist approach to providing some recognitions to same-sex couples.

Well done, Niall.