New Rights, Old Wrongs

This isn’t an article about what’s wrong with marriage. The fact that you’re reading this means you don’t need to be told about the patriarchal anachronism of the institution, let alone the ceremony, or the real meaning of the cake-cutting. You’re already uneasy with the idea of becoming anyone’s ‘wife’, with all that’s historically implied. You couldn’t tolerate being ‘given away’, the notion of the virginal gown is odious as well as ridiculous and you never did want a Bridal Sindy. You’d love to make a legal commitment to your partner, but you hate feeling like a hypocrite and even a civil ceremony would involve taking part in a bowdlerised version of the whole medieval rigmarole as well as mumbling vows about undying love in front of your Uncle Brian.

Isn’t it a shame that you can’t have one of those civil partnerships, like gay couples? Wouldn’t it be great to be able to sign a fair, symmetrical legal contract with none of the historical baggage of marriage, and then celebrate it in any way you like?

the clause restricting civil partnerships to same sex couples is a block to true equality

Well, what this article is about is why the restricted availability of civil partnerships is more than just a shame. It’s about how the clause restricting civil partnerships to individuals of the same sex not only ghettoises homosexual couples but also represents an unconscionable missed opportunity to remove a block to true equality. A block, moreover, that has deformed the whole structure of society for 400 years.

A serious campaign to secure universal access to civil partnerships has been started, and needs your support. But first we have a duty to explain why the mutually exclusive duopoly of marriage and civil partnership is more than a niggling annoyance for feminists and gay-rights campaigners. So what exactly is the problem with marriage and civil partnerships, and how exactly do we propose to solve it? Let’s take the first question.

The position that there are strong moral or philosophical reasons why civil partnerships must be made available to all individuals is met with suspicion, if not hostility, from two sides. On the one flank are those who would point out that, since the legal rights and responsibilities bestowed by marriage and by civil partnership are more or less the same, it is quixotic to split hairs over which is available to whom – are there not more worthwhile battles to fight? Advancing from the other direction are veterans of the battle for gay liberation, exasperated by attempts by heterosexuals (who have always had it all their own way) to muscle in on hard-won homosexual rights like a petulant child who refuses to share a toy then cries when its sibling gets a shiny new version.

while it remains, people will never be treated wholly as individuals

Both these responses are perfectly understandable, but, on closer examination, there is far more at stake here than the issue of which specific legal rights are bestowed. The superficial similarity and mutual exclusivity of marriage and civil partnership both embody and perpetuate a damaging deformity in the nature of what it is to be an individual in our society. Until this deformity is rectified, there can never be true equality between men and women or between heterosexuals and homosexuals. Why? Because while it remains, people will never be treated wholly as individuals – only as men or women who are straight or gay.

It doesn’t matter that the legal rights and protections available to men and women or to homosexuals and heterosexuals may happen to be the same, i.e. that they are (to be technically precise) contingently similar. The important point is that there is more than one distinct set of rights, each available only to a distinct set of people on a morally arbitrary basis. The situation is exactly analogous to the ‘separate but equal’ racial segregation in the USA – even if the housing, schools and jobs available to black people had really been the equivalent of those available to white people, black people’s lives might have been immeasurably better than they actually were, but the situation would still have been unjustifiable. Separate treatment can never be equal treatment when achieving equality consists in accepting the moral irrelevance of the very criteria used for separation.

But hang on, our two fronts of sceptics might reasonably interject – it’s perfectly possible to accept the moral irrelevance of race without believing the same to be true of sex or sexuality. What gives anyone the right to assume that a sexualised idea of personhood is a ‘deformity’? Shouldn’t we celebrate the different strengths and virtues of men, women, heterosexuals and homosexuals as essential aspects of who we are, not try to pretend that everyone is the same? Surely we’ve gone past the era of women in shoulder-pads trying to act like men, or gay men being forced to conform to ‘normal’ expectations of masculinity?

separate treatment can never be equal treatment

Our response is that of course sex and sexuality can be important aspects of personal identity, as can race, religion, nationality, language, social class, profession and indeed almost anything else. Our point is that there is no defensible reason for governments to make different laws for different sexes (or different sexualities) any more than for any other segments of society. The fact that the law doesn’t distinguish between actors and architects, say, doesn’t prevent any celebration of difference and diversity – it positively makes room for it by not making assumptions about how actors or architects might be expected to think or behave.

Ah, reply the sceptics, but the fact is that the law does distinguish between people of different sex and sexuality, and not between any other groups – don’t you think that might be because there’s a good reason for it? Doesn’t it imply that that particular distinction is not arbitrary, but rather reflects the fact that sexual differences are intrinsically more important than others?

We agree that there is indeed a reason for the peculiarity of sex-specific laws, but not that the reason is a good one. Back in the 17th and 18th centuries in Europe, when the concept of individual rights was being developed and incorporated into new forms of government, it was quickly realised that if women were considered as ‘individuals’ in the political sense, they too would have to be given these new rights. That conclusion was regarded as either absurd or inexpedient, so the political individual was defined (by the specific exclusion of women from political participation and civil rights) as a [heterosexual] man. Over time, of course, special laws were enacted giving additional rights to women and, most recently, homosexuals. But these discrete sets of laws have never been formally merged, and there is no blanket requirement that all individuals are to be treated equally in all aspects of civil life. The area of law with the most remnants of sexual apartheid and anachronistic sexualisation is that relating to marriage – for example, it remains the case that a marriage (unlike a civil partnership) is voidable on the grounds of willful refusal to have sexual intercourse. Most significantly, of course, marriage is restricted to people of the opposite physical sex.

the clause marginalises homosexuals with the same pen-stroke that emancipates them

These peculiarities are not just quaint oddities of the British legal system – they wedge open the deep fissure in civil society that means the early liberal vision of equal rights for all individuals has still not been realised. The introduction of civil partnerships presented an opportunity to heal the divide by allowing any two individuals to form a legal relationship regardless of sex, sexuality or any other arbitrary category. This opportunity was squandered by the insertion of the single clause that restricts civil partnerships to people of the same physical sex, making it the looking-glass equivalent of marriage. The clause marginalises homosexuals with the same pen-stroke that emancipates them, and keeps heterosexuals in their places as husbands and wives – separate under law and forever unequal.

If civil partnerships were made available to all, it would for the very first time create a truly all-embracing definition of a citizen. It would remove the last remnant of legal segregation on the grounds of sex or sexuality alone, and allow straight or gay men or women to fully develop their individuality – not just as men, or as women, or as queers, but as people. It would also let us celebrate our partnerships in any way meaningful to us, not just in a clichéd pantomime of medieval bridal rites involving the compulsory recitation of trite pledges that once struck a civil servant as apposite to the occasion. Just think for a moment of how you could celebrate if the only requirement was signing a contract – would it involve aisles, processions or vows?

So if this is the problem, how do we propose to solve it? Well, we believe that changing the law is a real possibility if enough individuals show their support. If you want to make a legal commitment to your partner of the opposite sex but reject the implications of marriage or the two-tier system, you shouldn’t have to grit your teeth at the registry office because you need the piece of paper. There is reason to believe that the clause restricting civil partnerships to people of the same sex may be illegal under a variety of existing provisions, such as UK sex discrimination law and the right to family life enshrined in European legislation. Most promisingly, the new Equality Act, which comes into force in April 2007, makes it illegal to refuse to provide goods or services on the basis of sexuality. The Equal Partnership Campaign has been set up to explore and exploit the legal and political opportunities to remove the exclusivity clause from the Civil Partnerships Act, and the case for change will be strengthened if we can demonstrate broad support drawn from the feminist, liberal and gay-rights movements.

we believe that changing the law is a real possibility

We all know that it’s been a long and difficult task to build true equality for women and homosexuals under British law. There are good foundations in place – all hard-won and of vital importance – but now it’s time to finish the job. If you believe in equal civil rights for all individuals, regardless of sex or sexuality, join the campaign, show your support or find out more at

Susan Hunter is writing on behalf of the Equal Partnership Campaign.