There is a growing trend in Europe and beyond towards granting same-sex couples legal recognition for their relationships, which confers certain specific protections. The first country to provide “registered partnerships” was in 1989, while The Netherlands was first to adopt same-sex marriage in 2001. Today, 47 countries in the world, 27 of which are in the Council of Europe, provide some form of legal recognition for same-sex couples.
Emotions often run high around this issue. In 2015, joyful crowds waved rainbow flags at Dublin Castle in Ireland to celebrate the dramatic victory of the yes-vote for same-sex marriage. Before that, in 2013, demonstrations and counter-demonstrations polarised French society during parliamentary debates on same-sex marriage.
The strongest disagreements seem to crystallise around the notion of “marriage,” but the arguments around the recognition of same-sex couples often reveal deeply rooted homophobia and discrimination against lesbians and gay people. Many Council of Europe member states still do not provide any form of legal recognition for same-sex couples at all – with significant negative consequences for the persons concerned and their loved ones. Providing access to legal recognition to same-sex couples boils down to a simple concept: equality before the law. Civil marriage, civil unions, or registered partnerships represent benefits, rights and obligations that the state grants to a couple in a stable relationship. There is a growing consensus that a government may not discriminate against same-sex couples and exclude them from the protections attendant to a formally-recognised different-sex union.
Legal recognition of same-sex couples in Europe
The movement towards legal recognition of same-sex couples has developed rapidly in Europe over the past two decades. This has been a bottom-up development and not something imposed by regional organisations and courts. States have led the way through the adoption of national legislation by parliamentary or popular votes. At this writing, a majority -- 27* out of 47 -- of the member states of the Council of Europe provide some form of legal arrangement recognising same-sex partnerships. Thirteen** of these have introduced same-sex marriage laws. Draft legislation on registered same-sex partnerships is currently under discussion in San Marino and Monaco. Polls show that public opinion in many European countries is increasingly in favour of recognising the rights of same-sex couples -- much more so than politicians sometimes seem to believe.
There has been backlash to the trend too. In December 2015, a same-sex marriage referendum in Slovenia failed. Several European states have reacted by amending their constitutions to specify that marriage is exclusively the union of a man and a woman. Some of the states which have done so, however, such as Croatia and Hungary, provide registered partnerships for same-sex couples.
It’s not just symbolic: the real problems faced by “rainbow” families
In my recent visits to San Marino, Slovakia and Latvia, I met with lesbian and gay activists who gave me vivid examples of the specific problems engendered by the absence of legal recognition of same-sex stable relationships.
Same-sex couples may lack inheritance rights, even after a lifetime of sharing and acquiring property. Having no legal recognition as next-of-kin means that a person may not be entitled to a survivor’s pension, to a living partner’s health insurance or to continue living in the home of a deceased partner. If someone is hospitalised after a serious accident and not in a position to explain one’s personal relationship, the person’s partner may be denied visitation rights or access to the medical file. The children of same-sex couples may be left without the care of the person whom they have always known as a parent. Generally, where there is no legal recognition for same-sex partnerships, there is also no possibility for joint adoption. Problems are sure to arise if the couple separates, if the birth or adoptive parent dies, or if there is a need for the legally unrecognised parent to take leave from work, for example in cases of serious illness or disability of the child. If a same-sex couple chooses to separate, there is no framework to regulate maintenance rights and duties toward each other or for the children. Stable same-sex couples also have no access to tax advantages provided by the state to other couples.
Like marriage, a registered partnership brings rights and obligations to the relationship of committed couples. Same-sex couples in this situation have the same needs and problems as any other couple.
Council of Europe standards: end discrimination against same-sex couples
In 2000, the Parliamentary Assembly of the Council of Europe (PACE) issued its Recommendation 1474 on the situation of lesbians and gays in the Council of Europe, recommending that the Committee of Ministers call upon member states to “adopt legislation making provision for registered partnerships.” In a 2010 Recommendation on measures to combat discrimination on grounds of sexual orientation or gender identity, the Committee of Ministers recommended that member states take steps to provide legal recognition to stable couples, without discrimination between different-sex and same-sex couples.
The recent jurisprudence of the European Court of Human Rights (the Court or ECtHR) gives solid ground for recognising the existing needs of stable same-sex couples, who must be able to enjoy the same rights as stable different-sex couples. Initially, the Court showed caution in addressing the issue, expressing deference to states in assessing the readiness of their respective societies on this matter. However, it is undisputed that the relationship of a same-sex couple falls within the notion of “private life” as protected in article 8 of the European Convention on Human Rights (ECHR). In the Schalk and Kopf(2010) and Vallianatos (2013) cases, the ECtHR further held that the relationship of a same-sex couple living in a stable de facto partnership also falls within the notion of “family life” pursuant to article 8.
In 2015, the Court issued a judgment in the Oliari case, where three same-sex couples had complained that they had no option to obtain legal recognition of their relationship in Italy, either through marriage or a registered partnership. The ECtHR found that Italy had violated article 8 of the ECHR by failing to make registered partnerships available to same-sex couples. In making this finding, the court also cited the rapid development in Europe towards legal recognition of same-sex couples, as described above.
It is difficult to read the Oliari judgment, and concurring opinion, as anything else than placing a positive obligation on states parties to the ECHR to provide legal recognition to same-sex couples as a way to protect their right to family life.
And what about same-sex civil marriage?
The considerations I offer in this section are strictly about civil marriage and not religious marriage.
International human rights law currently does not create an obligation on states to allow same-sex couples to marry. In the Schalk and Kopf case, the ECtHR declined to recognise a right to marry for same-sex couples under Article 12 of the ECHR (the right to marry). However, in that decision, the Court held that it would no longer consider marriage as exclusively reserved to a woman and a man. It was for states parties to the ECHR to decide how to regulate access to marriage. The Court added that this approach may change if a consensus were to emerge amongst the states parties to the ECHR.
There are arguments in favour of providing access to civil marriage to same-sex couples. One is to ensure that the rights available to same-sex and to different-sex couples are truly equal. Indeed, more often than not, registered partnerships offer a pared-down selection of rights, leaving aside more controversial issues such as adoption of children or medically assisted procreation. My opinion is that genuine commitment to full equality would at least require states to seriously consider opening up civil marriage to same-sex couples.
States should continue to work towards eliminating discrimination based on sexual orientation in the area of family rights. This requires several measures:
The 20 member states of the Council of Europe that still do not provide any legal recognition to same-sex couples should enact legislation to create -- at the very least-- registered partnerships that ensure that privileges, obligations or benefits available to married or registered different-sex partners are equally available to same-sex partners.
All states should ensure that legislation exists to provide registered same-sex couples with the same rights and benefits as married or registered different-sex couples, for example in the areas of social security, taxes, employment and pension benefits, freedom of movement, family reunification, parental rights and inheritance.
States should promote respect for lesbian, gay and bisexual persons and combat discrimination based on sexual orientation through human rights education and awareness-raising campaigns.
Granting rights and benefits to same-sex couples does not take anything away from different-sex couples who already have access to them. These rights are not weaker or less valuable simply because more people receive them. The trend toward legal recognition of same-sex couples is responding to the daily reality and needs of relationships that have gone unrecognised for a very long time. Our societies are made up of a rich diversity of individuals, relationships and families. It’s time we see this as an asset.
* Andorra, Austria, Belgium, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, The Netherlands, Norway, Portugal, Slovenia, Spain, Sweden, Switzerland and the United Kingdom.
** Belgium, Denmark, Finland -- to come into effect on 1 March 2017, France, Ireland, Iceland, Luxembourg, Norway, Portugal, Spain, Sweden, The Netherlands, and the United Kingdom.