Restricting Civil Partnerships Only to Same-Sex Couples Discriminatory: UK Supreme Court [Read Judgment]

The United Kingdom Supreme Court on Wednesday declared that restricting civil partnerships to only same-sex couples is “discriminatory”, and is incompatible with Articles 14 and 8 of the European Convention on Human Rights (ECHR).

Article 14 of the ECHR provides that the enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any of a number of specified grounds (including sex, race or colour) and “other status”. It has been accepted that sexual orientation qualifies as a ground on which discrimination under article 14 is forbidden. Article 8 guarantees the “right to respect for private and family life”.

The judgment was authored by Lord Kerr, with Lady Hale, Lord Wilson, Lord Reed and Lady Black agreeing.

Legal and factual matrix

Section 1(1) of the Civil Partnership Act, (CPA) 2004 defines a civil partnership as “a relationship between two people of the same sex ... (a) which is formed when they register as civil partners of each other - (i) in England or Wales…” Under section 2(1) of CPA, two people are to be regarded as having registered as civil partners after they sign the civil partnership register in the presence of each other, a civil partnership registrar and two witnesses. By section 3(1) of CPA, two people are not eligible to register as civil partners if they are not of the same sex.

Hence, CPA was designed specifically for same-sex couples only, as at the time of enactment of the Act, the government and Parliament did not consider it appropriate to extend the institution of marriage to same-sex couples but recognised that access to responsibilities and rights akin to those which arise on marriage should be available to same-sex couples who wished to commit to each other in the way married couples do.

This changed with the enactment of the Marriage (Same Sex Couples) Act (MSSCA), 2013, which legalized the marriage of same-sex couples. However, CPA was not repealed after MSSCA was enacted. Consequently, same-sex couples now have a choice either to have a civil partnership or to marry. This choice is not available to heterosexual couples.

The Supreme Court was now hearing an appeal filed by a couple, Rebecca Steinfeld and Charles Keidan, who had been in a long-term relationship, having had two children together, and wanted to enter into a civil partnership with each other. They had therefore sought a declaration that sections 1 and 3 of CPA, to the extent that they preclude a heterogenous couple from entering into a civil partnership, infringe their rights under Article 14 taken with Article 8 of the Convention.

Availability of less intrusive means

The Court was informed that certain investigations were carried out by the Government, which did not indicate that significant numbers of different-sex couples wished to enter into civil partnerships. The Government had then decided to not take the final decision on the future of civil partnerships until societal attitudes to them became clearer after same-sex marriages had taken root.

The Court also took note of a command paper published by the Government in May, 2018, which had stated that because of the lack of consensus, the government had “decided not to make any changes to civil partnerships at the time”. This, the Court opined, was “significant”, as “the government knew that it was perpetrating unequal treatment by the introduction of MSSCA but it decided to take no action because of what it perceived to be equivocal results from its consultations”.

It thereafter concluded that “civil partnerships falls within the ambit of article 8; that there is a difference in treatment between same-sex couples and different-sex couples in relation to the availability of civil partnerships; that this difference in treatment is on the ground of sexual orientation, a ground falling within article 14; and that the appellants are in an analogous position to a same-sex couple who wish to enter into a civil partnership”. The only basis on which the State could now have escaped the finding was by showing that the unequal treatment was justified, it said.

The Court then pointed out that before the MSSCA came into force, there was no discrimination against same sex or different sex groups on the alleged ground. It asserted that since Parliament and the Government had realised that discrimination would be perpetuated with the Act, it had two options available— “First, its introduction could have been deferred until the researches which are now deemed necessary had been conducted. Secondly, the government could have extended the institution of civil partnerships to different-sex couples until those researches had been completed. (A third, but admittedly less palatable, option would have been to suspend the availability of civil partnerships to same-sex couples, while the inquiries were carried out.)”

Each of these options, it opined, would have allowed the Government to pursue its aim with little or no discrimination. Besides, it also made it clear that taking time to evaluate whether to abolish or extend a policy can “never amount to a legitimate aim for the continuance of the discrimination”. It added, “The legitimate aim must be connected to the justification for discrimination and, plainly, time for evaluation does not sound on that. It cannot be a legitimate aim for continuing to discriminate.”

The Court then concluded that a fair balance between the appellants’ rights and the interest of the community had not been struck, and that instead, a “new form of discrimination” was introduced by the coming into force of MSSCA. It, therefore, declared that Sections 1 and 3 of the CPA, to the extent that they preclude heterogeneous couples from entering into civil partnerships, are incompatible with Articles 14 and 8 of the ECHR.