British lesbians married in Canada denied recognition in the UK.
Judge endorses the ‘sexual apartheid’ of same-sex marriage ban.
London – 31 July 2006
The High Court in London has today rejected an application by a British lesbian couple that their same-sex marriage in Canada should be recognised in the UK, in the same way that heterosexual marriages in Canada are automatically recognised by the UK authorities.
“This is a flawed, homophobic judgement, which upholds discrimination and brings shame to the British legal system,” said Peter Tatchell of the gay human rights group OutRage!, who was in court to hear the ruling by Sir Mark Potter, President of the Family Division.
OutRage! had backed the legal challenge by Sue Wilkinson and Celia Kitzinger from the outset.
“Sir Mark Potter’s decision defies the democratic principle that every person should be equal before the law. It contradicts the non-discrimination clauses of the Human Rights Act.
“British heterosexual couples who marry abroad have their marriage recognised automatically in the UK. To deny recognition to a lawful same-sex marriage conducted overseas is clear-cut discrimination based on sexual orientation.
“Sue and Celia wanted their Canadian marriage to be given full legal recognition in the UK, in the same way that heterosexual marriages in Canada are fully recognised in British law.
“This is a temporary setback in the long struggle for marriage equality. We have lost round one, but we are confident that the non-recognition of same-sex marriage will be eventually overturned.
“We hope Sue and Celia will take their case to the Court of Appeal and, if necessary, all the way to the House of Lords and the European Court of Human Rights.
“The ban on same-sex marriage in the UK is institutional homophobia. It signals the continuing second class legal status of lesbian, gay and bisexual people.
“The judge’s ruling that same-sex couples should accept the inferior status of civil partners is deeply insulting.
“Civil partnerships are not equality. The separate systems of marriage and civil partnerships are a form of sexual apartheid, with different laws for gays and straights. Marriage is for heterosexuals only, and civil partnerships are for gays only. Two wrongs do not make a right. Separate is not equal.
“Civil partnerships are second best. Nothing less than marriage equality is acceptable.
“The government’s position is that same-sex marriages conducted abroad should be accorded the status of mere civil partnerships within the UK. This view was endorsed by the judge. Marginalising same-sex relationships in this way is disturbing and offensive.
“The government’s aggressive opposition to the recognition of same-sex marriage and its successful demand for £25,000 costs against Wilkinson and Kitzinger will dismay many lesbians and gay men. It will do great damage to the government’s gay-friendly credentials.
“These punitive costs seem designed to financially damage Sue and Celia and thwart any attempt to appeal against the court’s ruling,” said Mr Tatchell.
Free use photos of Sue and Celia, and of the OutRage! protest outside the High Court:
http://www.flickr.com/photos/outrage/sets/72157594218519254/
Commenting on the High Court judgement, Sue and Celia said:
“We are deeply disappointed. It perpetuates discrimination and it sends out a message that lesbian and gay marriages are inferior. A different-sex couple married in Canada would automatically have their marriage recognised as a marriage in the UK. We believe that to operate a different set of rules for same-sex couples is profoundly discriminatory – an affront to social justice and human rights,” said Sue Wilkinson.
“We bought this test case to the High Court in London with the support of the human rights watchdog, Liberty, who are providing legal representation; and with the backing of OutRage!, the lesbian, gay, bisexual and transgender human rights group,” added Celia Kitzinger.
“The court has denied the legitimacy of our marriage. Our lawyers sought a High Court declaration of the validity of our marriage, with reference to the European Convention of Human Rights and the Human Rights Act 1998,” concluded Ms Kitzinger.
Further information:
Sue and Celia’s website is: www.equalmarriagerights.org
Liberty Press Officer, Jen Corlew 020 7378 3656
[email protected]
Background
University professors, Sue Wilkinson and Celia Kitzinger, made their original application for marriage recognition to the High Court in early June this year.
They were married in Canada in 2003, after the Canadian province of British Columbia amended its marriage laws to allow same-sex marriage.
Wilkinson’s and Kitzinger’s marriage is fully recognised in Canada. But the UK’s Civil Partnership Act says that same-sex couples who marry overseas “are to be treated as having formed a civil partnership”. Sue and Celia want the UK to recognise their marriage as a marriage, not as a civil partnership.
A detailed statement by Sue Wilkinson and Celia Kitzinger follows below.
Wilkinson’s and Kitzinger’s legal case is part of an international movement to secure the global recognition of Canadian same-sex marriages. In Ireland, another lesbian couple married in Canada, Katherine Zappone and Ann Louise Gilligan, are mounting a similar legal challenge in the Irish courts ( http://www.KALcase.org). There are also challenges pending in Israel, New Zealand and Hong Kong.
Background to our legal challenge
By Sue Wilkinson and Celia Kitzinger
We are a lesbian couple and we’ve been together for 16 years. We’re British citizens, and have lived in England for most of our lives. Our home is currently in Yorkshire. We’re both university professors: Celia at the University of York and Sue at Loughborough University.
From 2002-2004, Sue was living and working in Vancouver, Canada, as a visiting professor at Simon Fraser University. This appointment coincided with the historic period when the courts (first in Ontario, then in British Columbia) opened up marriage to same-sex couples. Same-sex marriage is now legal at federal level across Canada.
On 26 August 2003, at a civil ceremony in a flower-decked conservatory in Yaletown, Vancouver, we made our vows: “With this ring, as a symbol of my love and commitment, I call on those present to witness that I Celia/Sue do take you Sue/Celia to be my lawful wedded wife, to have and to hold, from this day forward, through all our life together”. The marriage commissioner declared: “upon the authority vested in me by the Province of British Columbia, I now declare you wife and wife”.
The decision to marry was an affirmation of our love and our commitment to each other. Being granted full social equality through marriage was of profound symbolic importance to us. Especially for Celia, who first came out as lesbian as a teenager more than thirty years ago, when homosexuality was still treated as a psychiatric illness, and prejudice and discrimination against lesbians and gay men was taken for granted, this marked a huge advance in social justice: “I never expected to have the opportunity to marry someone I loved”.
Our marriage also provided a practical, one-step solution to many of the problems of sustaining a relationship across international boundaries (immigration, healthcare provision, wills, power of attorney, and so on), as Celia was still living and working in England.
In Canada, as in Belgium, the Netherlands and Spain (as well as the US state of Massachusetts), marriage is legally available to any two people regardless of gender and sexuality. In the UK, by contrast, the government has recently confirmed that it has no plans to open up marriage to same-sex couples.
For the first two years of our marriage, our relationship had no legal recognition at all in our home country – unlike the marriage of any heterosexual couple married overseas, which would automatically have been recognised in Britain.
Then, in December 2005, with the implementation of the new Civil Partnership Act (CPA), our marriage was automatically – without our consent, and against our wishes – converted by the state into a civil partnership. The CPA says that same-sex couples who legally marry in countries where it is possible for them to do so “are to be treated as having formed a civil partnership” (CPA, para. 215).
Civil partnerships are an enormously important step forward for lesbian and gay rights. They make a huge practical difference to our ability to protect our loved ones and mark the beginning of a new era of acceptance for non-heterosexual family forms. But civil partnership is a different institution from marriage – a separate institution for same-sex couples only, while marriage is reserved for different-sex couples only. This maintains a symbolic separation of lesbians and gay men from ‘normal’ society, sending out the inescapable message that our relationships are not worthy of recognition through marriage. This discrimination is demeaning and unjust. Separate is not equal.
Our case is fundamentally about equality. We simply want to be treated the same way as any heterosexual couple who marries abroad – to have our valid Canadian marriage recognised as a marriage in our home country.
With the support of the national human rights organization, Liberty, we went to the High Court in early June 2006 to seek a declaration of the validity of our marriage – as a marriage, not as a civil partnership – under Section 55 of the Family Law Act 1986. Our lawyers argued that any failure to recognise the validity of our marriage constitutes a breach of our rights under the European Convention on Human Rights (incorporated into UK domestic law by the Human Rights Act 1988). They argued specifically that it breaches Article 8 (right to respect for private and family life), Article12 (right to marry), and Article 14 (prohibition of discrimination), taken together with Article 8 and/or 12.
The High Court judge who has considered the case said in his interim ruling (handed down on 12 April 2006): “I consider that there is sufficient material available for an argument based on principle … that the requirement of the Civil Partnership Act that a marriage between same-sex partners abroad must, on registration, be treated as a civil partnership and not a marriage, is on the face of it discriminatory on the grounds of sexual orientation” (Wilkinson v. Kitzinger, Her Majesty’s Attorney-General & The Lord Chancellor).
Winning our case could establish that the human rights to respect for private and family life and to marry apply equally to lesbians and gay men – not just to heterosexuals.
This is an important challenge to a legal system that has never yet extended either the right to respect for private and family life nor the right to marry to same-sex couples. Although our case calls for the government’s recognition of our valid overseas marriage, it has far-reaching implications for lesbian and gay equality and human rights more generally across Europe.
Free use photos of Sue and Celia, and the OutRage! protest outside the High Court:
http://www.flickr.com/photos/outrage/sets/72157594218519254/