Civil Union Bill falls short for same sex couples

For couples like Mapaseka Letsike and her partner Lesego Magwai, the separate legal structure is not good enough.  “Marriage is not just about legal rights,” says Letsike. “The law should recognise the humanity of everybody, in the same way.

 

OUT LGBT Well-being, a non-governmental organisation that provides mental and sexual health services to lesbian, gay, bisexual and transgender people, argues that the Civil Union Bill continues to subject lesbian and gay relationships into a second-class citizenry status. They say that suggesting that same-sex marriage requires a separate institution perpetuates stereotypes of same-sex marriages as unequal.

 

OUT contends that the Bill does not honour the December 2005 Constitutional Court judgment that declared both the common law definition of marriage and the marriage formula in the existing Marriage Act of 1961 to be unconstitutional.

 

In his judgment on 1 December 2005, Constitutional Court Justice Albie Sach, stated that, “In a context of patterns of deep past discrimination and continuing homophobia, appropriate sensitivity must be shown to providing a remedy that is truly and manifestly respectful of the dignity of same-sex couples."

 

The Draft Marriage Amendment Bill issued by the Ministry of Home Affairs in August this year proposed a gender-neutral amendment that would include same-sex couples into the current Marriage Act of 1961.

 

However, this proposal was shelved and Cabinet, instead, approved the Civil Union Bill.

 

In summary, the Civil Union Bill would include all the rights and responsibilities of marriage, yet relationships would take on a different legal form and have a different name – ‘civil partnerships’.

 

Whilst couples may request the marriage officer to pronounce them ‘married’, the law will not recognise the relationship as a marriage.

 

“For decades, apartheid legislators wanted us to believe that separate legal frameworks were required to deal with different population groups,” says Melanie Judge, Programme Manager of OUT. “The Civil Union Bill is a throwback to such ‘separate development’ thinking. In its rather contradictory and convoluted manner, it provides the legal benefits of marriage but doesn’t go as far as to say that same sex couples will be deemed married in the eyes of the law.”

 

For some, the difference that the wording makes for their family and community is significant. A lesbian couple who both come from traditional families mentioned that their families believe that marriage is the foundation for raising a stable family.

 

“For us, it will be very difficult to raise a family that will be accepted and recognised by our parents and families if we are not married.”

 

For both heterosexual and same sex couples, marriage is a way of publicly celebrating their love and commitment to each other. The symbol of the union is just as important as the legal rights that go with marriage.

 

Significantly, the Civil Union Bill is a progressive move toward the regulation of domestic partnerships. This will go a long way in extending legal protection for the most vulnerable members in the domestic sphere, women and children.

 

It is also important to recognise that the legal benefits that flow from civil and domestic partnerships will provide additional protection to couples, including same sex couples, including the right to intestate succession and medico-legal decisions.

 

Yet, what is the point of a separate institution? The Bill implies that marriage cannot be administered equally with same sex marriages, thus entrenching stigmatisation and prejudice toward same sex couples – perceived to be of a lower social status.

 

Discrimination continues to have severe consequences for the mental health and physical health of many gays and lesbian. Valid and reliable South African research has shown that 20% of lesbian and gay people in Gauteng have attempted suicide in the past, and 40% have experienced verbal harassment because of their sexual orientation.

 

The Civil Union Bill does not go far enough. The fact that benefits will flow from a separate institution that looks like marriage, but in essence is not, remains a problem and test for equality.

 

What is at stake is equality in the social status of same and opposite sex marriages. If the legal benefits are the same, why not accord equal status under one law for both groups?

 

What is in question at present is that the state’s responsibility to ensure that all South African citizens are equal before the law. Same sex couples should be able to marry, not merely to ‘civil partnership’.

 

The Civil Union Bill, unfortunately, is taking us a step away from that realisation.

 

Anything separate can never be equal.