Thoughts on the Civil Partnership Bill

Ok, so it’s time that I sat down and understood the real issues with the Civil Partnership Bill, because I hadn’t been following it prior to my arrival in Ireland, and I am thinking about joining the protest organized by LGBTNoise, taking place tomorrow at 6pm, outside the Dail. I wanted to make sure I agreed with the reasons for the protest, because in some ways the government is taking a huge step in introducing this legislation, and I want to make sure I agree that it is right to, er, throw the baby out with the bathwater.On major rights issues, you never know when the first shot might be the only shot...

I thought I would learn the main contents and elisions of the bill last week when The George hosted the first session of The G-Spot – a new live biweekly ‘talk show’ dedicated to issues of interest to the LGBTQ community -- but I just learned what GLEN and LGBTNoise do and do not have in common. And then they invited a reality tv star to the stage, and given my aversion to regular tv (i.e. not Mad Men or True Blood, no, no) and general dearth of knowledge about Irish superpopculture, I had no idea what anyone was talking about. But I digress...

So, I just skimmed through the entire 118-page long Civil Partnership Bill, and I can say that it is a real snore... You may say that all legislation is that way, but just read the preamble to Canada’s Bill C-38, which was put into law in July 2005:

WHEREAS the Parliament of Canada is committed to upholding the Constitution of Canada, and section 15 of the Canadian Charter of Rights and Freedoms guarantees that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination;

WHEREAS the courts in a majority of the provinces and in one territory have recognized that the right to equality without discrimination requires that couples of the same sex and couples of the opposite sex have equal access to marriage for civil purposes;

WHEREAS the Supreme Court of Canada has recognized that many Canadian couples of the same sex have married in reliance on those court decisions;

WHEREAS only equal access to marriage for civil purposes would respect the right of couples of the same sex to equality without discrimination, and civil union, as an institution other than marriage, would not offer them that equal access and would violate their human dignity, in breach of the Canadian Charter of Rights and Freedoms;

WHEREAS the Supreme Court of Canada has determined that the Parliament of Canada has legislative jurisdiction over marriage but does not have the jurisdiction to establish an institution other than marriage for couples of the same sex;

WHEREAS everyone has the freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms;

WHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs;

WHEREAS, in light of those considerations, the Parliament of Canada’s commitment to uphold the right to equality without discrimination precludes the use of section 33 of the Canadian Charter of Rights and Freedoms to deny the right of couples of the same sex to equal access to marriage for civil purposes;

WHEREAS marriage is a fundamental institution in Canadian society and the Parliament of Canada has a responsibility to support that institution because it strengthens commitment in relationships and represents the foundation of family life for many Canadians;

AND WHEREAS, in order to reflect values of tolerance, respect and equality consistent with the Canadian Charter of Rights and Freedoms, access to marriage for civil purposes should be extended by legislation to couples of the same sex;

It makes me tear up everytime I read it.

Ireland’s bill, by comparison, is devoid of any sense of joy about actually contributing to the growth of human rights. I don’t mean to toot the Canadian horn too much because we have our own share of embarrassments and bigotry, nor to enter an Ireland vs. Canada debate, but to show that there are other ways to approach this issue. The Irish bill is mostly a long list of amendments to current legislation in order to add references to ‘civil partner’ or ‘civil partnership.’

The Civil Partnership Bill is meant to provide for the legal registration of same-sex partnerships. The praise is that it finally allows same-sex partners a version of marriage, complete with some economic rights, legal recognition, and some degree of social recognition. The criticism is that it provides same-sex partners with some degree of marriage, but not marriage itself, and importantly, there is no mention of children in the bill: no extension of adoption or custody rights. This is a biggie.

The first thing that struck me about the bill is that it is an entirely separate piece of legislation, just for same-sex partners. In other words, you can’t choose to have a heterosexual civil partnership. This might seem obvious, but it is significant, because it means that the only rights granted to civil partners (read: same-sex) are the ones included in the bill. The bill does attempt some degree of comprehensiveness, referencing everything from the Abattoirs Act 1988 to the Vocational Education Act 1930 (to take an alphabetical approach to comprehensiveness), but, again, make no mistake, it’s not the same to be a civil partner as it is to be married.

It’s rather sneaky to create an entirely separate piece of legislation like this (instead of amending current definitions of marriage), because it means that you have to continually cross-reference the rights that are granted to married couples in order to see if they are included in the 118 pages of the Civil Partnership Bill. So, I didn’t get too much out of reading the bill, but it did spur me to seek out analysis on other sites, where people have had the time to comb through current marriage rights and the proposed civil partnership rights on a comparative basis. Here’s a brief list of some of the problems (you can see I have already decided to attend the protest):

- no mention of children and parental rights. so, nothing changes in relation to the children of same-sex couples. single gay/lesbian people can apply for adoption, but they cannot apply as a couple. that’s just absurd.

- foreign same-sex marriages essentially get downgraded to civil partnership, and if one partner has Irish citizenship, it is harder for his or her same-sex spouse (if married elsewhere) to obtain citizenship than it is for the spouse of a married heterosexual person.

- if your church recognises same-sex unions and is willing to ‘civil-partner’ you, they can’t. Religious bodies can only perform marriages

- when splitting up, only married couples can have a judicial separation. And if a civil partnership is dissolved, partners cannot apply to courts to work out property rights, and married couples can.

I could go on, but there are better summaries out there on the web, so I’ll point you in that direction. When I first heard about the bill, I naively thought “how different can it be, really,” but now, it’s clear that it’s entirely insulting.

To read more, try these sites:

LGBTNoise
EurOut.com
MarriageEquality
GLEN (Gay and Lesbian Equality Network)

If you are interested in Canada as a comparative case, same-sex marriage was made legal in 2005 following fairly heated debate that rallied between discussions of religious freedoms (the clergy’s right to not perform marriage ceremonies for same-sex couples), and lots of discussions about the language of the Constitution and Charter of Rights and Freedoms. In the end, instead of creating separate legislation for same-sex couples, the Canadian parliament created new legislation that defined ‘civil marriage’ - or more plainly, defined marriage itself. This legislation is what now governs all legal marriages in Canada, regardless of the number of X chromosomes in the pairing. Changes were made in relevant Acts to remove references to ‘opposite sex’ when it came to defining spouses. There was initially a lot of backlash from religious groups and Alberta, but it’s pretty much disappeared from public debate. I have to say, I felt a very rare sense of national pride the day that bill was passed. I don’t mean that I don’t like being Canadian, I just mean that I always get the willies when I see a lot of flag waving, or when I (used to) hear every American, including Ani Difranco, mention that they ‘loved their country’ before saying anything critical about it during the Bush Jr. years.

A very thorough summary of the debate, legislative process, and Act is available here: Bill C-38 Legislative Summary

One other thing of note: I read that nowhere in the Irish constitution is married defined as members of the opposite sex. So, wus de problem? In fact, the BUNREACHT NA hÉIREANN is an interesting read. You'll learn about the social changes in the last few decades pretty quickly in the first few pages. For example, divorce was only legalised in 1996. For those of you reading this who have no idea of Ireland's history, then it is also important to point out that homosexuality was only decriminalised in 1993! By comparison, . But the battle continues - Uganda was in the news recently for introducing a big-brother anti-homosexual bill that would "imprison anyone who knows of the existence of a gay or lesbian and fails to inform the police within 24 hours," among other penalties (Globe and Mail, Nov 29, 2009). The UN just introduced a declaration on the decriminalization of homosexuality at the end of last year, noting that 86 UN countries still have at least a partial ban on homosexuality on their books (Guardian, Dec 8, 2008).

Ok, judging by my use of citations, this is dangerously close to becoming an essay, and I can't possibly write a comprehensive one on this topic right now, so I'll leave you to explore the links.