The judgement shown by the Commission are surprisingly harsh. However, the ECHR appears not to adopt as harsh an approach as the Commission when considering other forms of 'sexual orientation discrimination7. In Salgueiro da Silva Mouta v. Portugal, Salguerio (a gay father) challenged a ruling before the ECHR, arguing that the Court of Appeal violated the convention by refusing to award custody of his daughter solely because of his 'sexual orientation'.
The ECHR held that the Court of Appeal has created 'a difference of treatment between [the fathers] and [the] mother, which was based on [the father's] 'sexual orientation' and was therefore a breach of Article 14. 8 In ADT v. UK9 a British man had his home searched by police officers.
The search revealed video tapes containing footage of A. D. T and up to four other men engaging in consensual oral sex and mutual masturbation in his home. A. D. T was charged and convicted of gross indecency between men. Although the Sexual Offences Act 1967 had abolished the criminal bans on private sexual conduct between consenting adult men, the Act treated as non private any such conduct, including consensual sexual acts in a private residence, in which 'more than two persons take part are present'. No such restrictions were imposed on heterosexual or lesbian acts. A. D. T challenged both his conviction and the statute itself before the ECHR.
The court had no trouble in finding a violation of Article 8 (private life) and did not even find it necessary to consider the fact that statutes discriminated on the basis of 'sexual orientation', by not applying the same rule to male-female or female-female activity. The ECHR are adopted a more understanding approach to the issue of 'sexual orientation approach'. This may result in a more sympathetic conclusion to Karner v. Austria10. Here the ECHR had to decide, for the first time, whether the convention requires that legislation providing rights to unmarried heterosexuals should confer identical benefits to same sex couples.
The case concerned succession to private tenancy, available under the relevant Austrian legislation to heterosexual couples, but not to gay and lesbian partners. The ECHR has ruled that the case can proceed on alleged grounds of 'sexual orientation discrimination'. But the result of this case is yet to be determined. If the ECHR considers the issue of whether the applicant has a 'family life', the distinction between the protection offered to heterosexuals (in A v.
Bulgaria11 the ECHR held that family life exists between cohabiting unmarried heterosexuals) and same sex partners may well provide the Court with an opportunity to revise the reasoning laid down by the old Commission in Simpson v. UK. Very few people think that homosexual couples should a have a right to marry, and others have concerns that 'gay marriage' would undermine the unique position of marriage in society; 'Marriage is a unique and natural relationship which provides the best foundation for the brining up of children in a healthy and balanced way and the best foundation therefore for society as a whole.
To in any way give the indication that there are other relationships, which are in any way, comparable to this unique relationship is deeply misleading and confusing to our society. Legislation which provides the same rights in law to gay couples will send out the strong signal that gay and heterosexual relationship are on an equal footing'12. Initially the ECHR held that the right to marry under Article 12 of the Convention refers 'to the traditional marriage between persons of opposite biological sex' – Rees v.
UK13. Furthermore, the ECHR held that there was no wide view of what marriage is and so each country is given a 'margin of appreciation' to decide how it understands marriage. Therefore Britain is entitled to limit marriage to deny transsexuals the right to marry opposite to their new sex14. However, the ECHR did say that the interpretation of Article 12 may change in due course as the European Convention 'has always to be interpreted and applied in the light of current circumstances'15.
Even in the light of this comment, the same case law continued to be reiterated in 1990 in Cossey v. UK16 and later in 1998 in Sheffield and Horsham v. UK17. However two cases were recently heard by the ECHR concerning the rights of post-operative male to female transsexuals – I v. United Kingdom and Goodwin v. United Kingdom18. In Goodwin v. United, here the applicant was a post operative male to female transsexual who was unable to change a number of official government records which listed her as male.
She was consequently treated as male for the purposes of social security, national insurance, and pension and retirement age. It was held that the failure of relevant domestic law to recognise her post operative gender was a breach of their right to 'private life' under Article 8 and their 'right to marry' under Article 12 of the European Convention on Human Rights. As a result of this decision the United Kingdom has to recognise the new gender, accept the consequences and ensure that all other laws are suitably adapted.
Thus, could this lead one to argue that same sex couples have the right to marry under Article 12? It seems unlikely to be the case. Robert Wintermute19 contends that 'although the English text of Article 12 grants this right to 'men and women' it does not say that a man can only marry a woman or that a woman can only marry a man'. Further, he contends 'it is likely that, at some point in the future, the Court will be willing to accept this argument, in keeping with its 'living instrument' approach to interpreting the convention'.
However, Charlotte McCafferty contends that 'there must be limits, however, to the flexibility that can be allowed, otherwise there would come a point when too much flexibility would cause the Article to be interpreted in a way that strays too far from the text'20 This brings us back to the purposes of the legal institution of marriage. The courts may consider that the main purpose of protecting marriage is to protect the right to find a family.
It may be arguable that when only one European country has decided on a same sex marriage case, it is unlikely that the ECHR will contend that not allowing same sex marriage is a violation of Article 12, as 'the absence of the European Consensus' would almost certainly be fatal'21. However, if a sufficient number of countries followed the lead of the Netherlands and introduce same sex marriage, it is possible that future interpretation of Article 12 may give same sex partners the right to marry22.
The main source of increased equality for same sex couples in Europe will come from the national legislatures and courts, especially now that it is possible for the European Convention on Human Rights to be enforced in British Courts (following the enactment of the HRA 1998). Thus, 'courts must now interpret all Acts of Parliament, if possible in a way that avoids sexual orientation discriminating violating Article 8 (private life) and 14 (discrimination) of the European Convention on Human Rights'23. The recent case of Ghaidan v. Mendoza,24 is an excellent illustration of this.
Mendoza alleged that to grant a statutory tenancy to the survivor of a heterosexual relationship when the survivor of a homosexual relationship was entitled to the less beneficial assured tenancy amounted to discrimination on the grounds of 'sexual orientation'. The issue before the court was whether the facts of the case fell within the ambit of Article 8 (respect for home and private life) and Article 14 (discrimination) of the Human Rights Act 1998 and whether the different treatment of survivors of heterosexual relationships and survivors gay relationship had an objective and reasonable justification.
It held that there was not a breach of Article 8 and although, as Buxton LJ stated, 'an uninformed reading of the bare words of that provision might suggest that a complainant had to establish an actual breach of another article of the Convention before he could rely on article 14, it would appear that even the most tenuous link with another provision in the Convention will suffice for Article 14 to enter into play'25. Further, when considering whether sexual orientation discrimination was within the bounds of Article 14, Buxton LJ stated26 'Looking at the question in 2002, it seems to me that there can only be one answer.
Sexual orientation is now clearly recognised as an impermissible ground of discrimination'. Further, Keene LJ stated 'I do not accept that an objective and reasonable justification for discrimination has been made'27. It was clear that Sch. 1. para 2 of the 1977 Rent Act infringed Article 14 and that the breach could be remedied by construing the words 'as his or her wife or husband' in Schedule 1 paragraph 2 as if they meant 'as if they were his or her wife or husband'28.
The decision seems to imply that the courts are moving away from the argument that the words are 'gender specific'- Fitzpatrick v. Sterling. Hence same sex couples can now argue that the words should be read 'as if they were his or her wife or husband' with regards to a number of other statutes which use these supposedly gender specific words when defining either a spouse or cohabitation, e. g. The Inheritance (PFFAD) Act 1975. In this way the law is beginning to recognise that gay and lesbian relationships can have a family character.
But the courts have had trouble including them within the term 'family' when it appears in legislation without a definition. This is perhaps not alarming, since Parliament has banned local authorities from promoting the teaching 'of the acceptability of homosexuality as a pretended family relationship'. Thus, homosexual couples have not been counted as family member. But English law is beginning to recognise these relationships, not so much in their own right, but as an example of a type of relationship which may warrant the grant of a family law remedy.
Two proposals for legislation introducing Registered Partnerships have been recently discussed in Parliament. The Relationship (Civil Registration) Bill was introduced in 2001 and The Civil Partnership Bill in 2002. The bills are broadly similar, in that they seek to introduce a system of partnership registration for same sex and opposite sex couples which will confer additional legal rights. In terms of content, the Civil Partnership Bill prescribes how the partnership registration will operate in detail.
In contrast, the Registration (Civil Registration) Bill makes reference to current legislation, extending it to include registered partners29. Each Bill stipulates that certain conditions must be met in order to register the partnership. The CP Bill contains the exact procedure for registration of a relationship. In contrast the R (CR) Bill does not prescribe such a detailed procedure. The CP Bill provides that both parties must be over eighteen, not already married or a registered partner, or a close relative.
Furthermore, the parties must have lived together in the same household for six months30. Its is important to consider the first and last of these conditions. Firstly, the fact that Lord Lester has stipulated that parties must be eighteen is questionable. Two heterosexual people can marry with their parent's consent at the age of sixteen, so why cannot two people register their partnership at the same age with the same parental approval? It is possible to conclude that this is because sexual activities between two men below the age of 18 had been illegal31.
The reason for this discriminatory age of consent for sexual activity between consenting same sex couples and consenting heterosexual partners was based on the theory that the young in society are in need from protection and corrupting influences. As Home Secretary, Sir David Maxwell-Fyffe contended in 1953; 'Homosexuals, in general are exhibitionist and proselytisers and a danger to others, especially to the young'32. However the age of consent has now been equalised by the Sexual Offences Amendment Act 2000.
The CP Bill stipulates that parties must have lived together for six months prior to registration. This seems to discriminate against same sex couples; a heterosexual couple can meet today and marry tomorrow and thus be immediately entitled to all of the rights and benefits obtained by such a union. The R (CR) Bill does not stipulate that the parties must have lived together before registration can occur. Furthermore, this Bill provides conditions for eligibility by incorporating the existing statutory restrictions which apply to marriage prescribed by the Marriage Act 194933.
Section 2 of The Marriage Act 1949 provides that two people can marry at the age of sixteen with their parents' consent34. This infers that respondent's adultery,35 the respondent's desertion,36 two years separation with the respondents consent to the divorce,37 the respondent's behaviour,38 and five years separation. 39 However, there are advantages and disadvantages to each of these Bills. Elizabeth Cooke argues that; 'Jane Griffith's Bill appears not to say enough- will simply slotting cohabitants into spousal provisions actually work?
It treats the partners, for the purposes specified, exactly like spouses and will therefore appeal only to those who would like to get married but cannot- that is, some, but not all, same sex couple (not all, in the sense that not all such couples actually want marriage-replica status). It will not attract those who choose not to marry precisely because they do not want the legal trapping of marriage'40. She also argues that; 'Lord Lester's Bill gives the registered partnership the dignity of its own, individually drafted identity'.