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Constitutional Challenges to Sexual Orientation Discrimination
Published online by Cambridge University Press: 17 January 2008
Extract
1999 may well go down in history as a watershed in the legal struggle for gay and lesbian equality. While in the late 1990s many legislatures across the world extended various statutory benefits to same-sex relationships,1 most legal systems continue to make a clear statutory distinction between same-sex and opposite-sex couples (usually by ignoring the former completely), as well as the more obvious (and deliberate) distinction between married and unmarried couples. Both distinctions have come under increasing challenge and in 1999 decisions from each of the highest courts in Canada, South Africa and Vermont, U.S.A. held legislation to be unconstitutional which treated same-sex couples differently from opposite-sex couples. In that year too, the British House of Lords held that a same-sex couple could be a “family” for certain statutory purposes,2 and the European Court of Human Rights for the first time accepted that the prohibition of discrimination contained in Article 14 of the European Convention on Human Rights covered sexual orientation discrimination.3
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References
1. See for example the Property (Relationships) Legislation Amendment Act 1999 (New South Wales), the Definition of Spouse Amendment Act 1999 (British Columbia) and the French Civil Solidarity Pact Law (PACs), 15 Nov. 1999.
2. Fitzpatrick v. Sterling Housing Association [1999] 4 All E.R. 705, [1999] 2 F.L.R. 1027.
3. Salgueiro da Silva Mourn v. Portugal, case 33290/96, 21 Dec. 1999.
4. There has long been scope for judicial review of subsidiary legislation and, more recently, of primary legislation inconsistent with EC law (see R v. Secretary of State for Transport, ex. P. Factortame (No. 2) [1991] 1 A.C 603).
5. (1999) 171 D.L.R. (4th) 577.Google Scholar
6. Family Law Act 1990 (Ont.)
7. Ibid., s.29(1).
8. Egan v. Canada (1995) 124 D.L.R. (4th) 609Google Scholar; Vriend v. Alberta (1998) 156 D.L.R. (4th) 385Google Scholar; Law v. Canada (1999) 170 D.L.R. (4th) 1.Google Scholar
9. Amendments Because of the Supreme Court of Canada Decision in M v. H Act 1999 (Ont). In Feb. 2000 the Federal Government of Canada introduced Bill C-23 to achieve the same effect at the federal level. The Bill passed the Canadian House of Commons on 18 April 2000.
10. Case CCT 10/99, 2 Dec. 1999.
11. Constitution of South Africa, s.39(2).
12. “Spouse” was held by the House of Lords also to be limited to an opposite-sex couple (Fitzpatrick v. Sterling Housing Association [1999] 4 All E.R. 705, [1999] 2 F.L.R. 1027Google Scholar), as was the concept of “marriage” in New Zealand (Quitter v. Attorney General [1998] 1 N.Z.L.R. 523Google Scholar). On the other hand, in Re B.L.V.B. 628 A2d 1271 (1993) the Supreme Court of Vermont held that, within the context of adoption legislation, “spouse” could be interpreted to include same-sex partner, so permitting adoption by that partner of the other's child without the other giving up his or her parental rights. The legislation permitted “spouses” to adopt in these circumstances and it was held consistent with the aims of the legislation, being to further the interests of the child, to interpret the word to include life partners of either sexual orientation.
13. Per Ackermann J, at para.54.
14. 20 Dec. 1999, Supreme Court of Vermont.
15. In a similar, and earlier, case in Hawaii the legislature pre-empted the final decision of the Supreme Court by changing its constitution to ensure that marriage, as such, could not be extended to same-sex couples: see Baehr v. Anderson, 9 Dec. 1999 (Sup. Ct. Hawaii).
16. The New Zealand Court of Appeal had earlier dealt with a similar challenge but, being limited in its role to statutory interpretation, it was unable to find the New Zealand Marriage Act 1955 to be unconstitutional: Quilter v. Attorney General [1998] 1 N.Z.L.R. 523.
17. This was accepted early by the European Court of Human Rights in the Belgian Linguistic Case (Series A 6 (1968)). See also Andrews v. Law Society of British Columbia (1989) 56 D.L.R. (4th) 1Google Scholar at p.13, per McIntyre J.
18. See for example the New Zealand Human Rights Act 1993, s.21 (1)(m) which prohibits sexual orientation discrimination in specified circumstances such as employment, provision of services, and access to land and education.
19. South African Constitution, s.9(3). Section 9(5) of the Constitution provides that “Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”
20. Egan v. Canada (1995) 124 D.L.R. (4th)609Google Scholar; Vriend v. Alberta (1998) 156 D.L.R. (4th) 385Google Scholar; Law v. Canada (1999) 170 D.L.R. (4th) 1.Google Scholar
21. Law v. Canada at para.88; M v. H at para.65.
22. Cory, Per & JJ, lacobucci, (1999) 171 D.L.R. (4th) at para.3.Google Scholar
23. Per Ackermann J at para.42.
24. Law v. Canada at para.70, M v. H per Cory J at para.70 and per Gonthier J at paras. 222 and 261.
25. Law v. Canada at para. 88, per Iacobucci J. The illegitimacy of stereotyping, that is presuming characteristics in an individual divorced from that individual's own character istics, is brought out well in T, Petitioner 1997 S.L.T. 724 where the Court of Session in Scotland castigated the judge at first instance for refusing an adoption petition made by a gay man in the absence of any evidence that the petitioner had himself any characteristics which would justify the refusal of the petition. It is this stereotyping that constitutes an attack on human dignity, by denying individuality and treating a person as he or she is presumed to be rather than as he or she actually is. The Nazis did that.
26. The argument did, however, persuade the European Commission for Human Rights which, in 1986, had held that “protection of the family” provided an objective and reasonable justification for treating same-sex couples less well than opposite-sex couples: S v. UK (1986) 47 D.R. 274Google Scholar. This was, however, in the context of succession to a tenancy (the application having been made as a result of the failure of the plaintiff in Simpson v. Harrogate Borough Council (1984) 17 H.L.R. 205Google Scholar to persuade the English court that a lesbian couple were “spouses” of each other). That issue must now, of course, be read in the light of the House of Lords decision in Fitzpatrick v. Sterling Housing Association [1999[ 4 All E.R. 705. Simpson was followed by the House of Lords as a matter of statutory interpretation, but the Commission decision in S v. UK was dealt a body-blow by Lord Nichols' statement that once it is accepted that an unmarried opposite-sex couple are capable of being a “family”, “there can be no rational or other basis on which the like conclusion can be withheld from” a same-sex couple: [1999] 4 All E.R. at 720D. In Sutherland v. UK (1998) E.H.R.L.R. 117Google Scholar at para.65 the European Commission expressed willingness to overrule its previous approach and hold that a state's entitlement to indicate disapproval of homosexual lifestyles could not justify inequality of treatment under the criminal law.
27. Per Ackermann J at para. 55.
28. Ibid., at para. 59.
29. (1993) 100 D.L.R. (4th) 658 at 712.Google Scholar
30. Cf. Marckx v. Belgium (1979) 2 E.H.R.R. 330Google Scholar where the European Court of Human Rights held that states could not encourage “the traditional family” by prejudicing the “illegitimate” family: “The Court recognises that support and encouragement of the traditional family is in itself legitimate or even praiseworthy. However, in the achievement of this end recourse must not be had to measures whose object or result is, as in the present case, to prejudice the ‘illegitimate’ family; the members of the ‘illegitimate’ family enjoy the guarantees of Article 8 on an equal footing with the members of the traditional family” (at para.40). This would apply to same-sex relationships if, but only if, such relationships were capable of being a “family”. The House of Lords in Fitzpatrick v. Sterling Housing Association [1999] 4 All E.R. 705Google Scholar held that they were.
31. Per Iacobucci J at para.109. This argument was never persuasive in any case since either party in an opposite-sex relationship could under the impugned legislation access the benefits, through suffering actual inequality, and not just the female partners who suffered systemic inequality. There was therefore no reason to exclude same-sex partners who could, like heterosexual males, show actual but not systemic economic disadvantage.
32. In C v. C (A Minor) (Custody: Appeal) [1991] 1 F.L.R. 223 the Court of Appeal in England held that an opposite-sex relationship was closer to the “ideal” of a nuclear family centred on marriage than a same-sex relationship, and that this entitled them to prefer the one to the other in a custody dispute.
33. There are some issues, such as racism, in which it is impossible to be neutral, to claim, that is, that one cannot or will not either condemn or support it, for that in itself is a highly judgmental position to take. It is submitted that, similarly, it is no longer possible to be neutral about the issue of gay and lesbian equality. A claim to neutrality in that struggle is a vote against.
34. “A Christian lifestyle is worth more respect than a Jewish lifestyle”; “black people are less worthy of respect than white people”. These statements are no different in effect from those that say “a homosexual lifestyle has less moral validity than a heterosexual lifestyle”. Yet some politicians and religious leaders feel able to express such views openly. To attempt to ameliorate it with such ostensibly benign comments as “love the sinner while hating the sin” is entirely meaningless to those who suffer homophobic abuse: “don't take it personally—it's not you as an individual we are beating up, only your sin”. And respect for the individual is as harmed by psychological abuse (“your relationship does not have the same moral validity as mine”) as by physical abuse.
35. Per Amestoy J at p.31 (of transcript).
36. Ibid., at p.36.
37. (1999) 171 D.L.R. (4th) 577 at para.92.Google Scholar
38. Per Amestoy C.J, p.35 (of transcript).
39. Per Ackermann J at para.51.
40. Ibid., at paras.36 and 38. Even the dissenter in M v. H accepted this: (1999) 171 D.L.R. (4th) 577Google Scholar, per Gonthier J at para.215.
41. [1999] 4 All E.R. 705Google Scholar, [1999] 2 F.L.R. 1027.Google Scholar
42. This was following an earlier decision of the Court of Appeal to this effect: Harrogate Borough Council v. Simpson (1984) 17 H.L.R. 205.Google Scholar
43. Though such intent does exist in the criminal law, at least in relation to male couples.
44. See for example the Rent Act 1977, Damages (Scotland) Act 1976, Fatal Accidents Act 1976; para.35 of the Criminal Injuries Compensation Scheme. The English Law Commission in their Report on Claims for Wrongful Death (Law Com. No. 263) have recommended that same-sex couples be recognised for these purposes. See Draft Bill, cl. 2, substituting a new s.1A in the 1976 Act.
45. So for example same-sex couples do not suffer the aggregation of their income when one or other of them claims income-related benefits such as income support under the Social Security Contributions and Benefits Act 1992. It would be a nice irony if the argument about to be propounded here were first used by an opposite-sex couple claiming that they were subjected to a more onerous, and therefore discriminatory, tax regime than a similarly situated same-sex couple.
46. Grosz, Beatson and Duffy, Human Rights: the 1998 Act and the European Convention put the effect of s.3 thus: “Statutes must be read in accordance with the Convention unless it is clearly impossible to do so” (para.3.13, emphasis added). See also Bennion, , “What Interpretation is ‘Possible’ under Section 3(1) of the Human Rights Act 1998?” (2000) Pub. L. 77.Google Scholar
47. See also s.6 of the New Zealand Bill of Rights Act 1990, which provides (in possiblyless emphatic terms than under the Human Rights Act 1998) that “whenever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.”
48. The effect of such a declaration is that the executive can act speedily to remedy the deficiency: Human Rights Act 1998, s.10.
49. [1999] 4 All E.R. at 710J.
50. See, as exemplars of this traditional approach, R v. Home Secretary, ex. p. Brind [1991–748A; Derbyshire County Council v. Tunes Newspapers Ltd. [1993] A.C. 534, per Lord Keith of Kinkel at 550D–551G; T, Petitioner, 1997 S.L.T. 724, per Lord President Hope at 733L–734C.
51. [1998] 1 F.L.R. 6 at pp.39–40.Google Scholar
52. S v. UK (1986) 47 D.R. 274Google Scholar. The lesbian relationship in that case was, however, held by the Commission to come within the ambit of protection afforded by the right to private life.
53. Johnston v. Ireland (1987) 9 E.H.R.R. 203Google Scholar; Kroon v. Netherlands (1995) 19 E.H.R.R. 263Google Scholar; X, Y & Z v. UK (1997) 24 E.H.R.R. 143. In Marckx v. Belgium (1979) 2 E.H.R.R. 330Google Scholar the European Court said, at para.40, “the members of the ‘illegitimate’ family enjoy the guarantees of Article 8 on an equal footing with the members of the traditional family”. See note 30 above.
54. (1997) 24 E.H.R.R. 143.Google Scholar
55. Ibid., para.36 (emphasis added).
56. The applicant, X, had claimed an infringement was constituted by English law's refusal to permit him to be registered as Z's father.
57. It is worth remembering at this point that the ECHR lays down minimum standards and that domestic legal systems are free to extend the guarantees contained therein wider than the ECHR has done or even would do. The UK is entitled to recognise as a “family” worthy of article 8 protections a relationship which the ECtHR would not so recognise. It would be odd if UK law recognised a same-sex relationship as a “family” for domestic purposes but refused to do so for human rights purposes.
58. Dudgeon v. UK (1981) 3 E.H.R.R. 40Google Scholar, (1982) 3 E.H.R.R. 149Google Scholar; Norris v. Ireland (1991) 13 E.H.R.R. 186Google Scholar; Modinos v. Cyprus (1993) 16 E.H.R.R. 485.Google Scholar
59. 2 Dec. 1999.
60. Human dignity is a right protected by s.10 of the South African Constitution.
61. (1993) 16 E.H.R.R. 97, at para.29.Google Scholar
62. S v. UK (1986) 47 D.R. 274.Google Scholar
63. It is open to argument that a failure by the state to recognise same-sex relationships is also an infringement of the right of freedom of association protected under article 11. If heterosexual associations have legal consequences, article 14 requires that homosexual associations have the same legal consequences.
64. Marckx v. Belgium (1979) 2 E.H.R.R. 330Google Scholar at para.45.
65. Protocol 12, when it comes into effect, will change this and the right to be free from discrimination will become a self-standing rather than a derivative right. Draft Protocol 12 did not expressly add sexual orientation to the list presently contained in article 14, though after Salgueiro da Silva Mouta that, technically, would make no difference. Nevertheless, on 26 Jan. 2000 the Parliamentary Assembly of the Council of Europe voted to recommend that sexual orientation be expressly mentioned. The significance of express mention would be symbolic, but no less important for that.
66. Engel & Ors v. the Netherlands (1976) 1 E.H.R.R. 647 at para.72.Google Scholar
67. Grosz, , Beatson, & Duffy, , Human Rights: the 1998 Act and the European Convention (Sweet & Maxwell, 2000) at para.C14.04.Google Scholar
68. European Court of Human Rights, 21 Dec. 1999.
69. Ibid., para.28 (author's translation).
70. [1998] 1 F.L.R. 839.Google Scholar
71. Hoffmann v. Austria (1994) 17 E.H.R.R. 293.Google Scholar
72. Ibid., para.24.
73. Ibid., para.36: “distinction qu'on ne saurait tolérer d'après la Convention”.
74. Per Lord Hope of Craighead in R v. DPP, ex p. Kebilene [1999] 3 W.L.R. 972Google Scholar at 993G–994E.
75. Johansen v. Norway (1997) 23 E.H.R.R. 33Google Scholar at para.64. In Schmidt v. Germany (1994) 18 E.H.R.R. 513Google Scholar the Court said, at para.24, “very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of sex as compatible with the Convention”.
76. See M v. H (1999) 171 D.L.R. (4th) 577Google Scholar where the deliberate choice of the Ontario legislature to reject the reforms sought in the case did not prevent the Supreme Court from requiring these reforms to be made.
77. Handyside v. UK (1976) 1 E.H.R.R. 737Google Scholar; Sunday Times v. UK (1979) 2 E.H.R.R. 245 at para. 59.Google Scholar
78. See also the South African Constitution, S.36(l), under which limitations to the rights contained in the Constitution are permitted if they are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
79. (1986) 26 D.L.R. (4th) 200.Google Scholar
80. Dudgeon v. UK (1981) 3 E.H.R.R. 40Google Scholar at paras.57–59.
81. See Norris v. Ireland (1991) 13 E.H.R.R. 186Google Scholar at paras.43–46.
82. Sutherland v. UK (1998) E.H.R.L.R. 117Google Scholar at para.62. The Commission held in that case that while the setting of a minimum age for sexual acts was justifiable under article 8(2) the setting of different ages for homosexual and heterosexual acts was unjustified discrimination.
83. Abdulaziz, Cabales and Balkandali v. UK (1985) 7 E.H.R.R. 471Google Scholar, para.72; Lithgow v. UK (1986) 8 E.H.R.R. 329Google Scholar, para.117; Inze v. Austria (1987) 10 E.H.R.R. 394Google Scholar, para.41; Schmidt v. Germany (1994) 18 E.H.R.R. 513Google Scholar, para.24; B v. UK [2000] 1 F.L.R. 1 at p.4C.Google Scholar
84. Per Iacobucci J at para.109.
85. Para.36. The approach followed the earlier decision in Hoffmann v. Austria (1994) 17 E.H.R.R. 293Google Scholar, where the unjustified distinction drawn by the domestic court in a child custody dispute was based on religion.
86. Sched. 1 para.2(2). See also Fatal Accidents Act 1976, s.1(3)(b). Damages (Scotland)Act 1976, sched. 1(1)(aa), Rent (Scotland) Act 1984, sched. 1A, para.2(2).
87. As inserted by Sched. 3 to the Finance Act 1999.
88. Whether statutes giving benefit to married couples will be held to be incompatible with Conventions rights, as they were held to be incompatible with the South African and the Vermont Constitutions, will depend upon (i) whether the statute in question deals with a Convention right, (ii) what its purpose is, and (iii) whether the limitation of benefit to married couples is proportionate to its aims. The ECtHR has held that there is a rational justification for distinguishing between married and unmarried fathers in connection with their relationship with their children: McMichael v. UK (1995) 20 E.H.R.R. 205Google Scholar; B v. UK [2000] 1 F.L.R. 1.Google Scholar
89. Scotland Act 1998, s.29(2). The validity of legislation can sometimes be saved only by reading on words to a statute. This is what happened in National Coalition for Gay and Lesbian Equality v. Minister for Home Affairs, 2 Dec. 1999, Constitutional Court of South Africa. The UK Courts already accept that they too have this power (see, in relation to an Act of the UK Parliament inconsistent on its face with EC law, Litster v. Forth Dry Dock & Engineering Co 1989 S.L.T. 540Google Scholar (HL)). To what extent this power can be developed remains to be seen, for the principle in Litster was limited to reading in words which the court held were a “necessary implication” of the actual words of the statute. The Constitutional Court of South Africa went much further, for the words they read into the statute in National Coalition were in no sense a necessary implication of the words that were already there, though they were necessary to save the provision's constitutional validity.
90. Northern Ireland Act 1998, s.6(2).
91. Scotland Act 1998, s.101, to similar effect as the Human Rights Act 1998, s.3. For Northern Ireland, see Northern Ireland Act 1998, s.83, also to similar effect.
92. See Norrie, , “Reproductive Technology, Transsexualism and Homosexuality: New Problems for International Private Law” (1994) 43 I.C.L.Q. 757CrossRefGoogle Scholar and Note, “Conflict of Laws and Recognition of Same-Sex Marriages” (1996) 109 Harv. L. R. 2038. The solution is to separate the so-called “status” of marriage from the individual legal consequences of marriage: seeCrossRefGoogle ScholarReese, , “Marriage in American Conflict of Laws” (1977) 26 I.C.L.Q. 952.CrossRefGoogle Scholar