Carl Stychin
Introduction
It would be odd indeed if those who espouse and defend traditional values of commitment and faithfulness opposed giving gay couples the choice to live their lives
according to those values.[104]
Families are changing. I suspect that teachers of family law have been uttering those words to their students for more years than most lecturers care to remember. Yet within the United Kingdom today, we are witnessing an unprecedented change in the way in which some families are characterised within political and legal discourse. Over the last twenty years, lesbian and gay families have been transformed. Not in the sense that the actual forms that their families take necessarily have altered; rather, what has changed so significantly is the way in which those families are characterised and comprehended within politics, the media, and the law. In the 1980s, lesbians and gays were (in)famously described as forming ‘pretended family relationships’, which should not be ‘promoted’ by local government.[105] This political delegitimation of relationships was profoundly demeaning to many, underscoring the social and psychological significance of the term ‘family’ within Western society. Ironically, however, that Conservative political tactic galvanised the lesbian and gay movement in the UK, which responded by articulating the richness of lesbian and gay families in the public sphere.
By 2004, much had changed. The Civil Partnership Act was enacted by Parliament, with overwhelming support, including from most of the Conservative front benches. Even opponents of the Act seemed to accept that lesbian and gay people form loving relationships that deserve respect and protection from a range of injustices. For the government, the Act represents the culmination of the quest for equality, creating a legal status for same-sex couples from which most of the benefits (and responsibilities) of marriage will flow. Lesbian and gay partnership is no longer, then, a pretend family form. Rather, it is a form of family warranting equal respect and dignity because of its value to individuals and to society. For those who have lived through the previous two decades, it is quite a remarkable journey from pretend family to civil partnership. The purpose of this chapter is to consider critically where that journey has now brought lesbians and gay men in Britain, and whether we reached quite the destination at which we hoped our journey would end.
To place the legislation in a wider political context, it is fair to say that the Labour government can point to a range of legislative and other initiatives, since its first election to government in 1997, which suggest that the Civil Partnership
Act is in keeping with a ‘gay-friendly’ agenda. Certainly, the website of the Women and Equality Unit provides ample ‘spin’ for this claim.[106] As a result of the Adoption and Children Act 2002, same-sex couples can apply to adopt a child jointly. Other examples include the availability of paternity leave and flexible working hours to a same-sex partner; a right to register a death of a same-sex partner; since December 2003, anti-discrimination legislation tackles discrimination in employment and training on grounds of sexual orientation and religion (legislation which is a legal requirement for Member States of the European Union); new sexual offences legislation removes discrimination between men and women, and between those of different sexual orientations; s 28 of the Local Government Act 1988 has been repealed after much difficulty in the House of Lords (although replaced with guidance to schools, which states that ‘there should be no direct promotion of sexual orientation’[107]); the age of consent has been reduced to 16 for gay men; the Criminal Injuries Compensation Scheme now includes same-sex partners; and the immigration rules have been amended to improve the situation for same-sex partners. Although many of these changes, it can be argued, fall short of perfection, they do represent a significant and real change from the many years of Conservative Party rule.
The Civil Partnership Act is seen by many as the culmination of this programme of reform. Put simply, the legislation
creates a new legal status that would allow adult same-sex couples to gain formal recognition of their relationship. Same-sex couples who enter a civil partnership would access a wide range of rights and responsibilities, reflecting the important commitment they are making to one another.[108]
This bundle of rights and responsibilities includes: the duty to provide reasonable maintenance for a civil partner; the duty to provide reasonable maintenance for children of the family; assessment in the same way as spouses for child support purposes; equitable treatment for the purposes of life assurance; employment and pension benefits;[109] recognition under intestacy rules;[110] access to fatal accidents compensation; protection from domestic violence; and recognition for immigration and nationality purposes. Couples are allowed to enter a civil partnership through a statutory civil registration procedure. A dissolution process — a formal procedure in the courts — will be created which mirrors divorce (rather than a simple ending of a contract unilaterally or bilaterally). In sum, according to the Women and Equality Unit: ‘Access to a civil partnership would bring benefits to the individuals who enter them, and benefits for society as a whole. Civil partnership underlines the inherent value of committed same-sex relationships, supports stable families and shows that we value the diversity of the society we live in.’[111]
The Bill was introduced in the House of Lords, receiving its third reading on 1 July 2004. In that process, however, it was amended to extend its coverage to family members and ‘carers’ more generally who might wish to register and opt into the bundle of rights and responsibilities. The Bill then moved to the House of Commons, and that amendment (as well as other similar attempts to amend the legislation in order to expand its scope: for example, to siblings) was defeated. The Bill received its third reading in the House of Commons on 9 November 2004, receiving broad parliamentary support. The Commons amendments were approved by the House of Lords on 17 November 2004, and the Bill received Royal Assent the following day, making it law: the Civil Partnership Act 2004. It is now in force.