Lesbian couple married in Canada seek legal recognition in the UK
High Court London, Tuesday 6 June 2006
London – 2 June 2006
A British lesbian couple married lawfully in Canada will challenge the UK’s non-recognition of same-sex marriage in the High Court in London next Tuesday, 6 June 2006.
University professors Sue Wilkinson and Celia Kitzinger were married lawfully in Canada in August 2003, while Sue was working there, after the province of British Columbia opened up marriage to same-sex couples.
Their marriage is fully recognised in Canada. But the UK’s Civil Partnership Act says that same-sex couples who legally marry overseas “are to be treated as having formed a civil partnership”. Sue and Celia want the UK to recognise their marriage as a marriage, not as a civil partnership.
Their legal case is part of an international movement to secure the global recognition of Canadian same-sex marriages. In Ireland, another lesbian couple married in Canada, Katherine Zappone and Ann Louise Gilligan, are mounting a similar legal challenge in the Irish courts (http://www.KALcase.org). There are also challenges pending in Israel, New Zealand and Hong Kong .
The human rights organisation, Liberty is providing pro bono legal representation and advice. The lead barrister is Karon Monaghan of Matrix Chambers.
See an article about the case in The Lawyer, 7 March 2005:
http://www.thelawyer.com/cgi-bin/item.cgi?id=114292&d=11&h=24&f=23
“A different-sex couple married in Canada would automatically have their marriage recognised as a marriage in the UK. We believe that to operate a different set of rules for same-sex couples is profoundly discriminatory – an affront to social justice and human rights,” said Sue Wilkinson.
“We are bringing a test case to the High Court in London, with the support of the human rights watchdog, Liberty, who are providing legal representation; and with the backing of OutRage!, the lesbian, gay, bisexual and transgender human rights group,” added Celia Kitzinger.
“Our lawyers are seeking a declaration of the validity of our marriage, with reference to the European Convention of Human Rights and the Human Rights Act 1998,” concluded Ms Kitzinger.
“This is a historic challenge to a grave injustice,” said Peter Tatchell of the gay rights group OutRage!
“It is the first step towards overturning the ban on same-sex marriage in Britain .”
“OutRage! is supporting Sue and Celia. We are immensely grateful to Liberty for providing legal representation and advice in this important test case.
“All other marriages conducted lawfully abroad are recognised in the UK. To refuse to recognise a lawful same-sex marriage is an act of wanton discrimination.
“In a democratic society everyone is supposed to be equal before the law. Refusing to recognise same-sex marriages enacted in Canada is a denial of equality, since opposite-sex Canadian marriages are granted automatic legal recognition in Britain .
“The ban on same-sex marriage in the UK is institutional homophobia. It signals the continuing second class legal status of lesbian, gay and bisexual people.
“The government’s position is that same-sex marriages conducted abroad are accorded the status of civil partnerships within the UK. This is unacceptable.
“Civil partnerships are not equality. They are sexual apartheid, with one law for heterosexuals, marriage, and another law for gays, civil partnerships.
“The homophobia of the ban on same-sex marriage is compounded by the heterophobia of the ban on opposite-sex civil partnerships. Two wrongs don’t make a right.
“Civil partnerships are second best. Nothing less than marriage equality is acceptable,” said Mr Tatchell.
A copy of a statement by Sue Wilkinson and Celia Kitzinger follows below.
Further information:
Sue and Celia’s website is: www.equalmarriagerights.org
Liberty Press Officer, Jen Corlew 020 7378 3656
[email protected]
Background to our case
By Sue Wilkinson and Celia Kitzinger
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 University .
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 Canada. 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 wife”.
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 country.
With the support of the national human rights organization, Liberty, we are going to the High Court 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 will argue 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 will argue 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 across Europe.