Title: Relationship equality: International comparisons Credit: Craig Young Features Thursday 1st July 2004 - 12:00pm1088640000 Article: 324 Rights
The Prime Minister argues that lesbians, gay men and supporters of the Civil Unions and Relationship (Statutory Reference) Bills should insure ample submissions to the Justice Select Committee. I couldn't agree more. I had a look at one recent compendium of same-sex spousal and relationship equality laws across the world. I'll deal with the optimal cases first, and note that we compare quite well to those enlightened jurisdictions. In some areas, we're even ahead. In Canada, the Charter of Rights and Freedoms has served as that country's written constitution since it was repatriated from the United Kingdom in 1982. Lesbians and gay men have been able to litigate to overturn discriminatory spousal legislation within particular provincial legislation, and most provinces responded through spousal or cohabitant law reform projects. In 1998, Alberta was forced to amend its antidiscrimination laws to include lesbians and gay men, which led to an avalanche of further spousal equality litigation and legislation. In quick succession, Quebec enacted its own civil union legislation, while British Columbia framed comprehensive spousal redefinition laws and opened adoption access to same-sex couples in 1997/2000. More recently, Ontario, Quebec and British Columbia have issued provincial supreme court verdicts that overturn the exclusion of same-sex couples from the rights and responsibilities of marriage. Germany has done likewise. For the most part, Canada implemented incremental same-sex spousal, de facto and cohabitation-related legislation across the provinces throughout the nineties. These included areas like spousal survivor benefits, spousal property, inheritance rights, wrongful death litigant status, provincial maintenance laws etc. In 2000, the federal House of Commons passed Bill C-23 which incorporated same-sex common law spousal status into much federal spousal legislation, which renders lesbian and gay relationships on an even footing with heterosexual de facto couples. In South Africa, this process has begun with medical aid schemes, pension funds and bereavement leave, all of which have been opened to same-sex couples. Denmark and Sweden were amongst the earliest jurisdictions that enacted spousal or partnership equality legislation (1989, 1994). In both cases, there were legislative initiatives beforehand. In the eighties, Denmark had convened a commission that investigated lesbian and gay inheritance rights but ended up recommending wholesale spousal law reform, which was enacted in 1989. While assisted reproductive technology was inaccessible through doctors, midwives have stepped into the breach, as it were. In 1999, Denmark enacted inclusive adoption law reform legislation. The Lutheran Church of Denmark decided that it was up to individual ministers to bless registered partnerships, but also decided that they posed no threat to marriage and should be celebrated as monogamous and faithful relationships. More recently, it has allowed lesbian and gay ordination. Similarly, Sweden enacted its own version of registered partnerships in 1994. These guarantee spousal property rights, inheritance rights, and more recently, coparent adoption rights. The Netherlands are another progressive jurisdiction. It enacted its antidiscrimination laws at the same time that we did (1993-4), and introduced registered partnerships in 1998, although it had dealt with fostering and custody discrimination in the seventies for same-sex parents. In 1998, the Netherlands Parliament legislated for adoption law reform as well. At the same time, the Social Democrat/Liberal coalition won power, and decided to open marriage to same-sex couples as well. If Canada, Scandinavia and the Netherlands provide comparable cases of spousal equality law reform to our own proposed Civil Union and Relationship (Statutory References) Bill, then the same is not true of France and Australia. Sadly for our nearest neighbour, Australia is ruled by a backward social conservative Liberal-National coalition. Despite majority recommendations from a federal Senate select committee, the Howard regime refused to amend federal superannuation laws to include same-sex couples, and is now proposing to ban same-sex marriage and overseas same-sex adoptions. In New South Wales, Bob Carr's ALP State Government amended inheritance, accident compensation benefit and spousal incapacity decision-making laws. The Property (Relationships) Amendment Act also included reforms to guardianship laws, coronial examination permission rights, power of attorney, resthome spousal accommodation and dependent spouse survival benefits. It remains to be seen whether any ALP federal government will follow New Zealand's lead and introduce federal civil union legislation if it wins the next election. (Unfortunately, Western Australia's progressive adoption law reform and Tasmania's groundbreaking civil union legislation occurred after this book went to press. Moreover, the Australian Capital Territory has proposed its own adoption law reform, but the Northern Territory and ACT have subordinate authority to the Commonwealth federal government in legislative authority. It was the latter measure which triggered the Howard/social conservative backlash against spousal and parenting rights. This will be the subject of a future Gaynz.Com column.) In France, the PACs (pacts of civil solidarity) are a highly restricted form of spousal partnership legislation. They don't provide inheritance rights, widow/er benefit access, accident compensation and rental accommodation access, but do guarantee health and maternity insurance, bereavement leave, debt liability and obligations for spousal support and maintenance. As with New Zealand, the French Christian Right lobbied against the PACs, and the Conference of Catholic Bishops, Association of Catholic Families and "Families of France" marched alongside the far right French National Front. All to no avail, as the French National Assembly passed the PACs legislation (315-249) in 1998. From this perspective, it can be seen that our Relationships (Statutory Reference) Bill is in the best tradition of overseas spousal and relationship equality legislation, akin to Canadian, Scandinavian and Dutch law reforms. It is comprehensive, and provides considerably amended spousal legal equality for same-sex couples. When it is passed, we can proudly stand alongside those progressive jurisdictions, although we will need to wait some time before the largely symbolic prize of same-sex marriage. However, spousal equality will be accomplished long before then. Recommended Reading: Egale Canada: Canada's national lesbian/gay lobby group. Contains contemporary information about lesbian/gay spousal and parenting rights litigation at the provincial and federal levels: Key Source: Robert Wintemute and Mads Andenae (eds) Legal Recognition of Same-Sex Partnerships: Hart Publishing: Oxford: 2001: See especially these chapters: -Don Casswell: "Any Two Persons in Canada's Lotusland, British Columbia:" -Kathleen Lahey: "Becoming 'Persons' in Canadian Law: Genuine Equality or Separate But Equal?:" -Craig Lind: "Politics, Partnership Rights and the Constitution in Souyth Africa:" -Ingrid Lund-Andersenn: "The Danish Registered Partnership Act 1989: Has the Act Meant a Change in Attitudes?*" -Hans Ytterberg: "From Society's Point of View, Cohabitation Between Partners of the Same Sex is A Perfectly Acceptable Form of Family Life: A Swedish Story of Love and Legislation" -Kees Waldjick: "Small Change: How the Road to Same-Sex Marriage Got Paved in the Netherlands." For conservative versions of restricted spousal (in)equality, though, see: -Jenni Milbank and Wayne Morgan: "Wanting Something More from the Relationship Recognition Menu:" -Daniel Borillo: "PACs in France: Midway Between Marriage and Cohabitation." Craig Young - 1st July 2004    
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