Bar on Straight Civil Partnerships is Lawful


Bar on Straight Civil Partnerships is Lawful – Tom Gillie, a pupil at Cloisters, considers the Admin Court’s recent judgment in the judicial review claim brought by Ms Steinfeld and Mr Keidan.

Many might think that the fact couples of the opposite sex cannot enter into civil partnerships, while their same sex counterparts can, is discriminatory. But the bar on civil partnerships for heterosexual couples has not become unlawful following the Marriage (same sex couples) Act 2013, according to the High Court in Steinfeld and Keidan v Secretary of State for Education [2016] EWHC 128 (Admin).

Ms Steinfeld and Mr Keidan were a couple in a committed long term relationship. They had ideological objections to the institution of marriage, considering its nature to be patriarchal, and wanted to enter into a civil partnership. They were restricted from doing so by section 1 of the Civil Partnership Act 2004 (the “CPA”) which defines civil partnerships as a relationship between two people of the same sex, and section 3 CPA which provides that couples of the opposite sex are not eligible to register as civil partners.

The couple brought a claim for Judicial Review, seeking a declaration of incompatibility under the Human Rights Act 1998. They argued that there was no legitimate aim to be served by maintaining the difference in treatment on grounds of sexual orientation and thus no justification for it in law.

Rejecting their claim, the Admin Court found that heterosexual couples are not placed at a disadvantage which would result in an infringement of their right to a private and family life under Art 8 of the European Convention on Human Rights (“ECHR”), or the prohibition of discrimination under Art 14, by being barred from civil partnerships.

The Court began by noting that the core values intrinsic to family life of “love, trust, confidence, mutual dependence and unrestrained social intercourse” set out in M v SSWP [2006] UKHL 11 were not infringed; the state had done nothing to interfere with them. The Claimants’ ability to continue to live together was “wholly unimpaired” and formal state recognition of their relationship and civic rights was open to them by getting married.

The Court cast doubt on the relevance of Schalk and Kopf v Austria (2011) 53 EHRR and Vallianatos v Greece (2014) 59 EHRR 12 to the situation in the UK. Those cases had concerned a scenario where there was plainly a detrimental effect on the enjoyment of family life arising from the denial of any and all forms of state recognition to a same-sex relationship. By contrast, all couples irrespective of sexual orientation had access to civil marriage in the UK.

Further, there was no evidence that the Claimants’ right to a private life had been infringed; the restriction on civil partnerships did not subject them to “humiliation, derogatory treatment or any other lack of respect for their private lives” on grounds of sexual orientation.

The Court decided that even if the difference in treatment did fall within the ambit of Art 8 and Art 14, maintaining that difference in the short-term was objectively justified. Justification must depend on the specific context of the scenario. In the instant case, the avoidance of wasting time and money in creating equal treatment by one of a number of available routes could be a legitimate aim for maintaining a discriminatory measure. The Government was acting wholly within the realms of its discretion to regulate social matters by postponing legislation on civil partnerships until the impact of the Marriage (Same Sex Couples) Act 2013 is clear. The Court concluded that opposite sex couples are not disadvantaged by the legislative hiatus because they can achieve exactly the same recognition of their relationship and the same rights, benefits and protections by getting married.

The High Court’s judgement suggests that heterosexual couples suffer no detriment by the denial of heterosexual Civil Partnerships. The inability to live according to genuine principles of conscience regarding marriage is not alone a sufficient detriment to constitute a breach of Articles 8 and 14 ECHR. Although several states (notably France, the Netherlands and New Zealand) have made provisions for recognising straight couples’ relationships through mechanisms other than marriage, the Admin Court clearly did not consider the UK government to be under an obligation to do so. So long as civil marriage exists, the question of whether heterosexual civil partnerships should be introduced falls to be answered squarely by Parliament.

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