September 2003: Commentary on proposals for Civil Partnership legislation

by Jennifer Moore


Note for people reading this at www.uncharted-worlds.org: This is my feedback to the government at the consultation stage, responding partly to the June 2003 document "Civil Partnership: a framework for the recognition of same-sex couples" (PDFs available here), and partly to other conversations in September 2003 on the same subject. Any references to "the consultation document" refer to that document, and all otherwise unattributed quotes come from there.


I. Overview
II. Reasons to welcome the proposed legislation
III. Comments on gender limitations
IV. Other "interdependent, stable relationships" as yet unsupported
V. Criticisms of contextual rhetoric
VI. Bisexuality and the legislation
VII. Who am I to say all this


I. Overview

My vibes in brief about the structure outlined:

  1. This proposed legislation is highly welcome as far as it goes. It will radically change the lives of some people in some situations; and it's a valuable stepping stone to future equality and acceptance of lesbian, bi and gay people and our families.
  2. For various reasons of both principle and practice, I would support and prefer a legal structure to which gender is irrelevant.
  3. This structure upholds "the importance of" only some kinds of "interdependent, stable relationships".
  4. While I welcome the proposed legislation itself, I disagree in principle with some of the rhetoric being put forward (not necessarily by the Government) to justify it.

II. Reasons to welcome the proposed legislation

II.1. Some of the main practical areas I'm aware of where the legislation will be especially valuable are:

  1. Recognising and supporting the role of one partner when the other partner is ill, or after their death.
  2. Making it possible for mixed-nationality couples to live in the same country.
  3. For children, recognising and supporting the roles of their non-birth parents.
  4. Contributing to economic security for the surviving partner if one partner dies, e.g. by making it more likely that they can stay in a home previously shared by the couple.

II.2. It's also welcome as a step towards full legal and social equality for people in same-sex relationships, in two ways:


III. Comments on gender limitations

There are various limitations on who is allowed to form a registered partnership (e.g. no siblings, not more than two partners, no mixed-sex couples). In this section I'll comment only on the gender limitation.

There are several different strands to my feeling on this.

  1. Principle of gender neutrality

    It is my observation that gender is unnecessarily introduced into many places where it's not relevant.

    There are still people in this society who strongly believe that women and men are not equal and ought not to be treated equally. Some legislation has explicitly challenged this view, but I would go further: we are all primarily human beings, and gender is often no more relevant than race, or indeed eye colour or preference for a particular kind of music. I want to see legislation develop towards reflecting that - as distinct from incorporating gender in many ways, then telling people to disregard it in some.

    Therefore I would in principle prefer a partnership structure which does not incorporate gender limitations, or indeed refer to gender at all. This would also have some practical advantages.

  2. Principle of equality regardless of sexuality

    I consider same-sex love relationships & partnerships to be equally valid with mixed-sex love relationships & partnerships. In my opinion, having separate legislation for each inherently reifies a spurious difference-of-category between them. Therefore I would in principle prefer legal structures which include all "sexual orientations".

    Even if some people resolutely refuse to vote in favour of "gay marriage", we could still take a step towards treating people equally by including mixed-sex couples in this legislation.

  3. Transgender

    1. Some people experience themselves as fitting into neither binary gender category. This reality is currently reflected in almost no legal structures. (But see an article about a pioneering exception from Victoria, Australia.)

      I don't want people to have to pretend to be male or female when they're not. A gender-unlimited structure for legal partnership would naturally include people of non-binary genders.

    2. Some people have a "sex change" while in a committed relationship. If the people in a relationship want to sustain its legal aspect, then I don't want legislation to make that impossible, even if the change of gender becomes legally recognised. A gender-unlimited structure for civil partnership would elegantly avoid adding to this current anomaly.
  4. Mixed-sex couples with political objections to marriage

    Some people in mixed-sex couples object on principle to participating in marriage when it's not available to their gay/bi/lesbian friends in same-sex relationships.

    Some mixed-sex couples have other political or spiritual objections to marriage, because of its inheritance of religious connotations, its history of being unfairly weighted against women, etc.

    Therefore, the suggestion that mixed-sex couples have no reason to want to participate in a civil partnership structure is simply mistaken.

  5. Outness

    Coming out isn't one moment in the past when you make a decision, have an experience. It's something you're engaged in the whole of your life. - Chris Turner, quoted by Jonathon Green in 'It'

    Coming out is not limited to lesbian/bi/gay people. For instance, people who've had a mental illness also deal continually with the choice of how much to disclose about their life, and what prejudiced reaction they might get.

    However, someone who has never had to live with coming out on a daily basis may not fully appreciate what a fundamental strand of life it can be. It's never over and done with: the choice comes around continually.

    Choosing to come out is often an empowering act. But it's also a social risk, and for lesbian/bi/gay people, sometimes even a physical risk. Personally, and professionally as a workshop leader, to the best of my ability I always give people the choice of when and whether to take that risk. And I don't like to see situations being set up where the choice they're offered is between coming out and lying.

    I think it's inevitable that until homophobia is eradicated in our society, some committed, long-term, same-sex couples will be deterred from registering their partnership by their concerns about physical and emotional safety. The question is to what degree we can mitigate the effects of society's remaining homophobia.

    Entering into a civil partnership with a same-sex partner is inherently an act of coming out. But it still isn't "the one definitive act of coming out". Continual choices still remain, and those choices can still be supported or undermined by the structure of the legal partnership.

    I'm willing to accept, at least provisionally for the sake of argument, that "civil partnership registration represents so significant a commitment that it should be a matter of public record" (Section 4.15). Therefore there would always be some risk that the register could be used as a "homophobes' directory". Even if mixed-sex couples were included and genders were not recorded, people with bad intentions could still make guesses from the first names of the couples.

    However, accepting that element of outing as inevitable, a huge amount of territory remains where the structure can support or undermine the choice of whether to come out on a particular occasion. Two examples:

    1. Filling in forms. Under the presently suggested structure, to make a form "outing-choice-friendly", it would have to treat marriage and civil partnership interchangeably - one tick box for both.

      Legislation could make it obligatory for forms not to distinguish between marriage and civil partnership unless there were some practical reason for the distinction. I would nevertheless predict a large amount of "unchosen outing" (even if technically illegal) in the years before all old forms were used up or binned. To whatever extent that were to happen, it could be avoided simply by allowing people of any gender to register partnerships.

    2. Social situations. A lot of people are not nosey enough to ask directly "Is your partner a bloke or a woman?", but "Are you married?" remains a common question in our society. Under the presently suggested structure, "No, I'm in a registered partnership" amounts to coming out. If mixed sex couples were included, it would not. It's as simple as that.

    To sum up, in my opinion including mixed-sex couples in the registered partnership structure would greatly reduce the number of social situations where people have to choose between coming out and either lying or evading the question. I consider that a significant advantage.

    Additional note on outness, for the avoidance of doubt

    In my ideal world, no-one would have any fear of sharing information about who their partners are and whom they love. I'm not promoting "staying in the closet" as a good thing.

    Also, I recognise that there are many people who are courageous enough to take the risk anyway, and many people (such as me) for whom, thanks to the constellation of other privileges they enjoy, it's not really much of a risk.

    I am saying that it's respectful, and supportive of people's emotional health, to give people as far as possible their own choice about when to come out and to whom.


IV. Other "interdependent, stable relationships" as yet unsupported

An interesting phrase is used in section 3.5 of the consultation document: "... the importance of interdependent, stable relationships would be upheld". I think that's rather beautifully put. (I'm not dissing relationships which evolve rather than staying stable, but even while they're evolving, I think an element of stability is nurturing to people.)

I realise that one lot of legislation can't solve everything, and that given what we've got so far, inventing a partnership for two people which strongly resembles marriage is much simpler than some other possible advances might be. Therefore, I realise that what I say in this section is unlikely to have any effect on this round of legislation.

But despite that, I wanted to draw attention to two ways in which I feel the importance of interdependent, stable relationships could be more effectively upheld.

  1. Ability to separate the various strands of rights & responsibilities, in particular health vs money

    I feel the lack of structures for legal relationships which create a form of kinship but don't involve money.

    For instance, you might wish to appoint someone who can make health decisions on your behalf if you're too ill. But the person or people you might nominate for such a role in your life might not be someone you want to marry, be in a registered partnership with or be economically linked with at all. I think this is an idea worth exploring.

  2. Multiple partnerships

    Ironically enough, section 3.5, from which that rather beautiful quote is taken, discusses exclusivity of partnerships.

    "3.3 The government believes that individuals should only be able to enter into one partnership arrangement at any given time. ...

    3.4 The Government proposes to protect people from unwarily entering into relationships that are not exclusive. ...

    3.5 In this way, registered partners will not find themselves subject to sets of competing legal obligations and the importance of interdependent, stable relationships would be upheld."

    (The bits I've snipped are details of how that would be ensured in practice.)

    "In this way": In which way? Does that refer to 3.3 or to 3.4? Clearly, people should be protected from unwarily entering into relationships that are not exclusive. Withholding information about existing partnerships wouldn't be good for anyone. But is that last phrase in 3.5 supposed to be a justification for 3.3? Why is it there? What does it mean?

    For over a decade, I've been in and around communities where multiple love/life partnerships are supported and accepted. Some of the challenges are different from monogamous relationships, but it doesn't mean they are less stable or less committed - in my experience, a partnership of three committed people can sometimes be more stable than a partnership of two of the three. This is despite the hugely greater support which a partnership of two receives from most of mainstream culture.

    Supporting interdependent, stable relationships by limiting them to one per person doesn't make sense. In a society which valued all such relationships, there'd be no reason not to allow people (if all parties consent) to sustain their existing stable relationship(s) while formalising a new one.

    So I can't see what that second phrase in Section 3.5 is there for, lovely though it sounds in itself. The purpose of limiting everyone to one partner clearly is that "registered partners will not find themselves subject to sets of competing legal obligations". In other words, it avoids legal tangles of a kind which the existing system is not designed to resolve.

    I.m.o. the limitation to one registered partner can be justified only by suchlike practical constraints, not by implying that it's done for the benefit of society or the participants.


V. Criticisms of contextual rhetoric

I've already offered one criticism of wording in section IV.b above. There are two other pieces of context I want to comment on, one by the Government and the other not.

  1. "Remedy an inequality"

    I quote from section 2.6 of the consultation document:
    "The creation of a new legal status that is open only to same-sex couples and not to opposite-sex couples would amount to a difference in treatment. However, the Government believes that this difference in treatment is justified because it would remedy an inequality that already exists between opposite-sex and same-sex couples."

    No. Remedying that inequality would look like this: same-sex couples getting married.

    According to my understanding and my dictionary, remedy as a verb means "to cure". Not "to make less unequal than it was but still unequal".

    I got "that the Government has no plans to introduce same-sex marriage" (Section 1.3). And I realise that that might well get conclusively voted down even if it were tried, so fair enough for now. But that's at best a case of "we'd like it to be equal but we don't think we can swing it". Equality itself is yet to come.

  2. "Innate feeling", "other half", etc.

    I've recently had the opportunity to read the response by the Lesbian & Gay Christian Movement to the Government's proposals. I agree with many of their arguments, but dispute one particular strand, which I think is worth commenting on.

    I quote from their paragraph 9:
    It is a matter of plain observation that most people, whatever their sexual orientation, grow up with the innate feeling that there is someone out there with whom they can find happiness in permanent union. All literature, from the fairy story onwards, draws inspiration from this almost-universal belief (find "Mr Right" or your "Princess" and you will live happily ever after...). The actual bruises and disappointments so often endured in relationships (married or not) do not seem to deter most people from resuming the search for the "other half".

    It is indeed a matter of plain observation that many people experience strong feelings and recurring thoughts about such possible futures. But "innate"? I think not! Literature shapes those thoughts and feelings as much as it is shaped by them.

    And despite the cultural weight of this strand of rhetoric, not "all literature" shares those values; not all people are looking for "the" "other half" or "like others, have found "the right person" and wish to settle down in a permanent union" (LGCM response, para 16). Some people are much happier with two partners than one, and would be deeply distressed at being forced to choose between them. Others will find several "the one"s over time. Yet others prefer to live alone or with friends, and are perfectly happy that way. Human beings are not all the same. Straight people are not all the same, bi people are not all the same, lesbians are not all the same, and gay people are not all the same.

    The myth of "the one" is certainly common enough that a lot of people will find it a compelling ingredient of rhetoric, but in my opinion it's very shaky ground to build an argument for equal rights upon. They're not speaking for me.


VI. Bisexuality and the legislation

As I consider myself part of the UK bi community, I thought I'd comment briefly from a specifically bi perspective.

  1. Many bi people are in committed long-term same-sex relationships, and would benefit directly from aspects of the legislation.
  2. I suspect that several of the strands I mentioned in section III (gender limitations) are likely to affect bi-identified people disproportionately. I can't quote you research on it, but my observations suggest that
  3. Everyone from the UK out-bi community whose views I've heard agrees that the legislation is welcome, both for current practical reasons and as a valuable step towards future acceptance of bi, lesbian and gay people & our families. The general feeling seems to be "the sooner it becomes law the better". Some, perhaps most, are disappointed that it excludes mixed-sex couples.
  4. It's very common for bi people to "be invisible" in discussions, and I think we mostly have been invisible in this one. In practical terms, it probably doesn't matter all that much in this case, since I can't think of any way in which the legislation would need to be different for same-sex couples with one or two bi partners from how it would be designed for couples of two lesbians or two gay men. However, I'm glad to see language being used which doesn't actively exclude bi people (e.g. saying "same-sex" rather than assuming that "lesbian & gay" covers all same-sex relationships).

VII. Who am I to say all this

These are my own opinions, current at 30 September 2003. I keep in touch with a subset of people involved in the UK out-bi community, and it's probably fair to say that a lot of people in that community would agree with me, on most if not all of what I've said throughout this document. But I haven't systematically researched who agrees with what, and I'm speaking for myself.