Realising Equality for Lesbian and Gay Couples

Issued : Friday 21 April, 2006

REALISING EQUALITY FOR LESBIAN AND GAY COUPLES

LABOUR LGBT LABOUR EQUALITY LABOUR YOUTH

March 2006

Families in Ireland occur in diverse formations, and Labour LGBT/Labour Equality/Labour Youth are committed to bringing Ireland's statutory and legislative machinery to lifting the discrimination same-sex couples face in Irish society. Labour LGBT/Labour Equality/Labour Youth are committed to a 21st century approach to LGBT couples and their right to legal recognition of their partnerships.

The Labour Party has a tradition of emancipatory legislation in LGBT issues, having pushed heavily for the decriminalisation of sexual activity between men in 1993. We further included sexual orientation as a grounds for discrimination in equality legislation. Since 1996 the Labour party has supported legal recognition of same-sex partnerships.

 

At present, Lesbian and gay couples have no guarantee of fair treatment under the law because legally their relationships do not exist. The vulnerability experienced by all couples during times of death or serious illness of a partner, the anxieties involved in child rearing and child custody are all exacerbated for same-sex couples.

We in Labour LGBT and in the Labour Equality and Labour Youth sections of the Labour Party fully support legislation which recognises the partnerships of same-sex couples and provides them with equal rights and entitlements.

We believe that parity of esteem for same-sex couples requires that the State lift legal barriers to civil marriage for same-sex couples. Equality for Lesbian and Gay couples should not be discretionary nor should it be denied or constrained by homophobia or heterosexism. Civil partnership for same-sex couples does not constitute true equality, even where the rights afforded by such partnerships schemes are equivalent to those arising out of marriage. In the late nineteenth century, in a United States just emerging from the era of slavery the US Supreme Court ruled that "separate but equal" education facilities for black and white children were permissible, but by the mid-1950s it recognised the inherently racist nature of such an education system and ordered integrated schooling, giving impetus to the civil rights movement. In 2006 we should not be trapped in 19th century thinking.

We acknowledge the influence in this policy document of the Equality Authority and its report 'Implementing Equality for Lesbians Gays and Bisexuals'. Following the legalisation of civil partnerships in Northern Ireland on December 5th 2005, under the Belfast Agreement, there is a requirement of equivalence in human rights in Northern Ireland and the Republic. This can be done by the legalisation of civil partnerships in the Republic of Ireland as compared to civil partnerships in Northern Ireland, or our preferred option, same-sex state civil marriage.

"(We) favour gay couples having the same rights that everyone else has, whether you call it marriage or something else...We feel the option should be available to gay couples".

Jan O'Sullivan TD, Labour Party, October 18th 2004

'I support David Norris' Bill. I also believe in equal recognition for couples in civil law. I believe, as David Norris does, that his Bill or, possibly, an improved version of it must not be dragged into a debate on church marriage. I believe civil marriage should be available for those couples who seek it, including same-sex couples.'

Michael D Higgins TD, President, Labour Party, December 5th 2005

1. REALISING EQUALITY FOR LESBIAN
AND GAY COUPLES.

Labour LGBT/Labour Equality/Labour Youth propose to lift the ban on civil marriage for same-sex couples. We propose a simpe pieceof legislation providing that marriage can take place between either a man and a woman or a couple of the same sex. If necessary, such legislation could be preceded by a referendum which would give constitutional force to the right to marry to Lesbian and Gay couples. Hopefully, however, the courts will rule in favour of Katherine Zappone and Ann Louise Gilligan and render such a referendum unnecessary.

If a referendum is necessary, the following areas should be covered with respect to realising equality for lesbian and gay couples by providing for civil partnerships in legislation as an interim measure pending equal status. Such legislation should provide for:
o Pension provison
o Property and Succession rights
o Parental Leave e.g. Force Majuere leave
o Taxation (income tax, capital gains tax, capital acquisitions tax)
o Next of kin entitlements with regard to hospital visits, illness, funeral arrangements, and executorships of wills.
-Residency and citizenship

We would also propose introducing legislation in the area of family law with regard to Lesbian and Gay couples and their parenting responsibilities.

We also propose that fertility services and surrogacy shall be provided regardless of sexual orientation.

We also propose that to introduce a Gender Recognition Bill to allow transgender persons to alter their birth certificates to recognise their true gender.

2. BACKGROUND INFORMATION
Current Irish Law Relating to Same-Sex Couples
1. The workplace
a) Pensions
The size of pension contributions does not normally depend on marital status. However, the question of what benefits are paid out often does. Since 1984, all public servants, married or not, must contribute equally to a specific "spouses and children" pension fund, from which payments are made when a person dies after retirement. No payments can be made to an unmarried partner, or to any children of that partner.

 

Upon death after retirement trustees of private pensions funds can and do extend "relevant benefits" to same-sex partners and their children. Some companies based in Ireland do extend such benefits, so the practice could in theory become standard.

European Young Socialists Campaign for Same Sex Marriage

In the public service, the death in service benefit is a standard lump sum that goes to the estate of the deceased and thus a partner of either sex can be named in the will as the beneficiary. In the private sector, such benefits (e.g. pensions, direct payments, lump sums to beneficiaries) are subject to the discretion of pension fund trustees. There may or may not be discrimination against a same-sex partner.

Legal spouses inherit tax-free benefits, but same-sex partners ("strangers" in law) face two taxes: capital acquisitions tax (CAT) on the capitalised value of the pension and income tax on the pension itself.

When married couples separate or divorce, pensions are normally still partially allocated to the ex-spouse. No such rights accrue to non-married partners. Social welfare pension rules allow for the payment of a supplement to any adult dependent. However, after death a survivor's pension will be paid only to a legal spouse.

b) Parental leave
Parental leave is a statutory right for the biological parents of a child or for both adoptive parents, who must be a married couple. An unmarried partner of either a biological parent or of a parent who has an adopted child does not have this entitlement.

"Force majeure leave" in cases of grave illness or injury to a partner's child is available to those "in loco parentis". This is broad enough to include same sex partners.

Members of Labour LGBT and members of the Labour Party at the Midsummers Ball in support of the KAL initiative

2. Taxation
A legally valid marriage has tax advantages, but these are not afforded to a same-sex relationship. Hopefully, the current legal challenge by Katherine Zappone and Ann Louise Gilligan will remedy this anomaly..

(a) Income tax
Joint assessment is not available to same-sex partners and neither partner can transfer their marriage allowance or avail of the double-rate tax band.
In cases where only one partner in a same-sex couple is working, she or he will be taxed on a single-rate tax band.

(b) Capital gains tax and capital acquisitions tax
Capital gains tax benefits are restricted to married couples. Under CAT, same-sex partners are treated as "strangers in blood". Gifts are subject to tax, unlike married couples who are also exempt from stamp duty and from almost all probate tax on the transfer of any assets.

With the exception of a shared residence (see below), the surviving partner of a same-sex relationship must pay full CAT on the value of everything inherited. (A surviving partner from a marriage pays no CAT, no matter how large the inheritance.) Gifts or inheritances to the child of a same-sex partner attract full CAT, although such gifts from a biological or adoptive married parent are taxed only above the value of e243,790.

The new principal residence relief from CAT does, however, apply to a wide range of persons, including same-sex partners, with restrictions. A residence shared for a minimum three years may be inherited free of CAT if it is the inheritor's only residential property, and if the inheritor continues to live there for a further six years.

3. Children and same-sex couples
In addressing current rights and in the event of extending rights with regard to children and those not in a married heterosexual relationship, it is essential that the rights of the child underpin all related legislation and policy.

(a) Adoption
The right to adoption is restricted to legally married couples, or in certain circumstances to single people. In any non-marital relationship, the adoption of a living partner's child is prohibited.

One partner in a same-sex relationship may apply to adopt a child in her or his own right. However this leaves the child with little or no legal protection should anything happen to the adopted parent.

There is no guaranteed right of a same-sex partner to legal guardianship or custody rights over a natural or adopted child of her or his partner. The absence of adoption rights or guardianship rights means that a child has no automatic right to continue in a relationship with their second parent should their biological or legal parent become incapable of caring for them through death or serious illness.

(b) Fostering
Same-sex couples can and have been accepted as foster parents. The sole specified criterion is the "best interests of the child". This is the appropriate criterion for all matters relating to children.

(c) Custody and access
Disputes over custody rights are determined by the courts. There is nothing specific in law to prevent the biological (or adoptive) parent from applying for custody of her or his child, while at the same time being in a known same-sex relationship. There is no statutory reason to prevent access. When a same-sex relationship ends, a former partner has no legal rights of access to the biological or adoptive child of her or his ex-partner. Equally, the parent can make no maintenance order against her or his ex-partner. The child in this situation, equally, has no right of access to somebody who may have been a de facto parent and neither may have the right to be supported by this person, but a person in loco parentis may apply for access.

(d) Birth registration
Only the biological parents of a child can be registered on a birth certificate. This is automatic in the case of a married couple, and by consent or application in other cases. A same-sex partner cannot be registered.

(e) Fertility services
There is no Irish legislation on assisted reproduction, only Medical Council Guidelines. In the 1998 Guidelines, there is no reference to the marital status of the recipients. In practice, most Irish clinics do not make services available to same-sex couples. Treatment is usually confined to those with fertility or genetic problems, not to those in a same-sex relationship.

(f) Surrogacy
A surrogate mother is legally regarded as both the biological mother and guardian of the child. The biological father may apply to the court to become the guardian.

Pat Rabbitte with members of Laobur LGBT at Dublin Pride

4. Housing and property
(a) Rented local authority housing
Nothing in theory prevents a same-sex couple being allocated local authority housing, and the Equal Status Act outlaws discrimination. Housing authorities may provide, in relation to housing accommodation, different treatment to persons based on family size, family status, marital status, disability, age or membership of the traveller community, but not sexual orientation under the Equal Status Act.

When a tenant dies, it is only when her or his partner is a joint tenant that the partner succeeds to the tenancy; in other cases, it will be very difficult to succeed to the tenancy.

(b) Access to mortgages and mortgage protection
Mortgages for houses and apartments are easily obtainable for same-sex couples. Mortgage protection insurance, however, for male couples may be difficult or highly expensive because of perceived HIV risks and lenders may insist on HIV tests.

(c) Succession rights
Succession rights in a same-sex relationship depend entirely on a valid will being made by the deceased partner. Without such a will, the surviving partner will legally inherit nothing, and may even have to prove her or his rights to any validly shared possessions.

If the deceased partner was unmarried and childless, there are no restrictions on what can be inherited. However, if still alive, the deceased's spouse is entitled to half the estate or, if there are surviving children, to one-third of the estate, unless the couple were divorced. Surviving children (biological or adopted) can also claim a share of the estate, to be determined by the courts.

The surviving partner cannot contest the entitlements of the spouse, although the court may follow the provision of the will rather than allow the claims of children. If the surviving partner of a same-sex couple is left little or nothing in the will, then he/she has no grounds for any claim unless he/she can establish a "resulting" trust.

(d) Property rights in the event of separation
In a marriage, the marital home cannot be sold by one spouse without the written consent of the other. After a separation, the courts may decide on a range of financial transfers, accommodation needs, pension adjustments, etc. No such protection is given to unmarried couples, whatever their sexual orientation.

A partner in a non-marital relationship can attempt to establish a "resulting trust" in a property owned by the other partner. The procedure carries no guarantees, and is both complex and difficult. Cohabitation contracts have been mentioned as possible solutions, but have uncertain status in Irish law. It has not yet been tested whether the courts would accept such a contract for a same-sex relationship.

5. Other Points
(a) Domestic violence
Same-sex couples are protected under the Domestic Violence Act 1996, from some of the consequences of violence as they are in a "relationship the basis of which is not primarily contractual". A same-sex partner can apply for either a safety order or an interim protection order. It is arguable that a same-sex couple could apply for a barring order.

(b) Hospital treatments, visits, grave illnesses and death
Formal discrimination does not exist, as even a spouse has no legal rights in respect of treatment and instead Medical Council Guidelines apply. However informal discriminations can and do occur. A new patient in a hospital may nominate any other person to receive information about her or his illness, but in cases of patient unconsciousness, a same-sex partner would be in a much weaker position than a spouse or close relative, or may be ignored entirely. Nor does a same-sex partner have any right, under Medical Council Guidelines to have any input into treatment decisions of seriously or terminally ill patients. Those rights are restricted to the legally defined next-of-kin.
Funeral arrangements are the responsibility of the executor of the deceased's will. If the deceased has left no will, or has not made her or his partner the executor in the will, an unmarried partner has no rights.

(c) Immigration, work permits, nationality and citizenship
All persons from the European Economic Area (the EU plus Norway, Iceland and Liechtenstein) can live and work in Ireland. When an Irish person wishes to bring her or his non-EEA partner to live or work in Ireland, immigration policy is weighted heavily in favour of married couples. Although non-EEA spouses do not have automatic rights of residence and work, the rules ensure that barriers are rarely put in place. Same-sex partnerships are ignored, and applicants are treated as single immigrants. The right to Irish citizenship for a non-EEA spouse is also not automatic, but operates effectively as such. Again, no such rights accrue to same-sex partners.

6. OTHER JURISDICTIONS:
The Netherlands
The Equal Treatment Act 1994 prohibits discrimination on the ground of sexual orientation in labour, housing, medical care and access to goods and services. Since January 1998 same-sex couples have been able to register their partnership legally and have been accorded most of the rights previously reserved to married heterosexuals. Tax regulations are the same for registered partners as for married couples. Most pension schemes provide a surviving partner's pension in the case of unmarried or registered cohabitees regardless of sex. Equally, all couples and cohabitees, regardless of sex, have the right to succeed to a property lease of their deceased partner. In April 2001, the Netherlands opened up full civil marriage to same-sex couples. In addition, lesbian and gay couples were legally enabled to adopt from April 2001. Under the changed marriage law, section 1 of Article 30 of Book 1 of the Netherlands Civil Code now reads: "A marriage can be contracted by two persons of different sex or of the same sex" Consequently, the new marriage law in the Netherlands did not create a parallel relationship with heterosexual marriage, but changed the definition of marriage to include same-sex couples.

France
Discrimination in employment based on sexual orientation has been outlawed since 1985. Lesbians and gays have been able to serve in the armed forces and following a 1996 case when a gay man was excused from mandatory military service to take care of his sick partner, same sex partnerships have been recognised by the military. In 1999 the Pact of Civil Solidarity (PACS) introduced a registered partnership for non-married couples whether same-sex or heterosexual, providing legal and financial protection. These rights include shared property rights in the event of a partner's death, joint income tax assessment three years after signing a PACS agreement, paid leave for partner commitments, pension and social security rights designated to the other partner where requested. A PACS can be used as evidence of close personal ties to obtain the right of residence and both married couples and single people are eligible for adoption and fostering. However, the PACS does not of itself confer eligibility to adopt.

Denmark
In 1989, Denmark became the first country to introduce a law on registered same-sex partnerships. This law has essentially guaranteed the same rights of marriage and divorce to a registered same-sex couple as to a heterosexual married couple with one exception: a registered couple cannot adopt children. The conditions are that a church wedding is not available and one of the partners must be a Danish citizen. However in 1999, the law was amended to allow a partner to adopt the children of her or his partner (except where the child is adopted from a foreign country) and to recognise the partnership rights of citizens of Norway, Sweden and Iceland and citizens from countries where similar legislation exists. Since 1999 also, non-Danish citizens resident in Denmark for two years have been able to register a partnership.
Germany

In Germany, same-sex Eingetragene Lebenspartnerschaft (registered life partnership) became legal in August 2001. It provides for the partners to take the same name if they wish; reciprocal maintenance obligations and rights in a partnership; limited parental responsibility granted to the partner (the right to be involved in decisions on matters of the daily life of a child brought into the partnership by the other partner). It also provides for a statutory right of inheritance of the surviving partner in the event of death of the other partner; the right of the surviving partner to succeed the deceased partner in a residential tenancy agreement; the right to refuse to give evidence against one's partner in a Court of Law; the inclusion of the partner in health insurance and nursing care insurance; the right of a foreign partner to join his/her partner in Germany and the right of a foreign partner to naturalisation.

Other countries
Various other European countries, most notably Sweden, Finland, Norway and Iceland have accorded varying degrees of legal recognition to the rights of same-sex couples.
Spain has recently legislated for same-sex marriage and Civil Partnerships became legal in the UK and Northern Ireland on December 5th 2005.
More recently same-sex marriage has been legalised in Canada, Massachusetts and South Africa.