[Note: This was written prior to the judgement in the
High Court in London today]
We are a lesbian couple and we’ve been together for 16
years. We’re British citizens, and have lived in England for most of our
lives. Our home is currently in Yorkshire. We’re both university
professors: Celia at the University of York and Sue at Loughborough
From 2002-2004, Sue was living and working in Vancouver,
Canada, as a visiting professor at Simon Fraser University. This
appointment coincided with the historic period when the courts (first in
Ontario, then in British Columbia) opened up marriage to same-sex couples.
Same-sex marriage is now legal at federal level across
On 26 August 2003, at a civil ceremony in a flower-decked
conservatory in Yaletown, Vancouver, we made our vows: “With this ring, as a
symbol of my love and commitment, I call on those present to witness that I
Celia/Sue do take you Sue/Celia to be my lawful wedded wife, to have and to
hold, from this day forward, through all our life together”.
The marriage commissioner declared: “upon the authority
vested in me by the Province of British Columbia, I now declare you wife and
The decision to marry was an affirmation of our love and
our commitment to each other. Being granted full social equality through
marriage was of profound symbolic importance to us. Especially for Celia,
who first came out as lesbian as a teenager more than thirty years ago, when
homosexuality was still treated as a psychiatric illness, and prejudice and
discrimination against lesbians and gay men was taken for granted, this
marked a huge advance in social justice: “I never expected to have the
opportunity to marry someone I loved”.
Our marriage also provided a practical, one-step solution
to many of the problems of sustaining a relationship across international
boundaries (immigration, healthcare provision, wills, power of attorney, and
so on), as Celia was still living and working in England.
In Canada, as in Belgium, the Netherlands and Spain (as
well as the US state of Massachusetts), marriage is legally available to any
two people regardless of gender and sexuality. In the UK, by contrast, the
government has recently confirmed that it has no plans to open up marriage
to same-sex couples.
For the first two years of our marriage, our relationship
had no legal recognition at all in our home country – unlike the marriage of
any heterosexual couple married overseas, which would automatically have
been recognised in Britain.
Then, in December 2005, with the implementation of the
new Civil Partnership Act (CPA), our marriage was automatically – without
our consent, and against our wishes – converted by the state into a civil
partnership. The CPA says that same-sex couples who legally marry in
countries where it is possible for them to do so “are to be treated as
having formed a civil partnership” (CPA, para. 215).
Civil partnerships are an enormously important step
forward for lesbian and gay rights. They make a huge practical difference
to our ability to protect our loved ones and mark the beginning of a new era
of acceptance for non-heterosexual family forms. But civil partnership is a
different institution from marriage – a separate institution for same-sex
couples only, while marriage is reserved for different-sex couples only.
This maintains a symbolic separation of lesbians and gay men from ‘normal’
society, sending out the inescapable message that our relationships are not
worthy of recognition through marriage. This discrimination is demeaning
and unjust. Separate is not equal.
Our case is fundamentally about equality. We simply want
to be treated the same way as any heterosexual couple who marries abroad –
to have our valid Canadian marriage recognised as a marriage in our home
With the support of the national human rights
organization, Liberty, we went to the High Court in early June 2006 to seek
a declaration of the validity of our marriage – as a marriage, not as a
civil partnership – under Section 55 of the Family Law Act 1986. Our
lawyers argued that any failure to recognise the validity of our marriage
constitutes a breach of our rights under the European Convention on Human
Rights (incorporated into UK domestic law by the Human Rights Act 1988).
They argued specifically that it breaches Article 8 (right to respect for
private and family life), Article12 (right to marry), and Article 14
(prohibition of discrimination), taken together with Article 8 and/or 12.
The High Court judge who has considered the case said in
his interim ruling (handed down on 12 April 2006): “I consider that there is
sufficient material available for an argument based on principle ... that
the requirement of the Civil Partnership Act that a marriage between
same-sex partners abroad must, on registration, be treated as a civil
partnership and not a marriage, is on the face of it discriminatory on the
grounds of sexual orientation” (Wilkinson v. Kitzinger, Her Majesty’s
Attorney-General & The Lord Chancellor).
Winning our case could establish that the human rights to
respect for private and family life and to marry apply equally to lesbians
and gay men – not just to heterosexuals.
This is an important challenge to a legal system that has
never yet extended either the right to respect for private and family life
nor the right to marry to same-sex couples. Although our case calls for the
government’s recognition of our valid overseas marriage, it has far-reaching
implications for lesbian and gay equality and human rights more generally