A recent decision of the United Nations Human Rights Committee has ruled that the Australian government is in breach of its human rights obligations, by not providing for a person who has “transitioned” from male to female, to have their birth certificate amended. The reason that this request has been refused is that the person, “G”, was married to a woman, and NSW law does not allow the birth certificate of a married person to be amended. In my view this provision of NSW law is perfectly sensible (given that Australia does not recognise same sex marriage), and I have to say that I think the UNHRC has got this wrong.
The Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill has now handed down its formal Report (15 Feb 2017). I have referred previously to my evidence to the Committee and my response to the remarks of one of the other witnesses: see Why proposed same-sex marriage balancing clauses would be constitutional and right (29 Jan 2017).
The Report contains no major surprises, perhaps to be expected from an area which is so contentious and in which positions of the Committee members and the various witnesses are so far apart on basic presuppositions. But overall it is a well-balanced document which fairly presents the different points of view. As the Committee itself notes, its deliberations are really only relevant for the future, if Parliament chooses to revisit this area. At the moment the current Government’s preferred option, a plebiscite, has been rejected by the Parliament, and the Government has indicated that in line with its election commitments, it will not be moving to a vote in Parliament on the issue.
Nevertheless, it is worth noting some areas of consensus, and flagging the issues on which there still remains substantial disagreement.
The question posed by the title of this post is simply this: is it a denial of a fundamental human right, for a legal system not to extend the category of marriage to include marriage between parties of the same sex?
The question was posed in a stark way by recent reported comments of the President of the Australian Human Rights Commission, Prof Gillian Triggs. Prof Triggs, for whom I have great respect as a scholar and academic, was delivering the annual Sir Anthony Mason Lecture at Melbourne Law School on 4 August, 2016. She strongly criticised a lack of commitment to human rights in recent decisions of the High Court of Australia, and the Commonwealth Government. In a short paragraph near the end of her address, she also said the following:
A recent example of the failure of Parliament to protect fundamental rights is the decision to hold a plebiscite on marriage equality. Why do we hold an expensive, potentially divisive compulsory but non–binding national vote on the right to equality before the law.. a long recognized common law principle? The US Supreme court decision last year on marriage equality in Obergefel is yet another reminder of the limited role of the Australian High Court that has no power to interpret and apply a Bill of Rights.
The implication of this statement is that “marriage equality” (by which is meant “recognition of same sex marriage”) is simply an “equality” right which should be uncontroversial. Indeed, there is a suggestion that recognition of same sex marriage is really a right that flows obviously from Australia’s international human rights obligations, such as our accession to the International Covenant on Civil and Political Rights (ICCPR). Prof Triggs has been previously reported as telling a Parliamentary inquiry that there is a “right to marriage equality”.
In a later defence of this position in an opinion piece, “Genuine marriage equality is more than overdue in Australia” (Sydney Morning Herald, 28 Jan, 2016) Prof Triggs said:
Under article 26 of the International Covenant on Civil and Political Rights all people “are equal before the law and entitled without any discrimination to the equal protection of the law”. The Australian Human Rights Commission considers that this principle of equality means that civil marriage should be available, without discrimination, to all couples, regardless of sex, sexual orientation or gender identity.
Yet the same piece frankly points out that international human rights bodies do not all agree with this assessment:
It remains true that international human rights law does not mandate recognition of marriage between same sex partners. Rather, the principle of equality under the ICCPR is considered by the UN Human Rights Committee to neither prevent recognition of same sex marriage nor to impose a positive obligation on states to do so.
In this post I want to briefly note the UN Human Rights Committee decision referred to here, and some decisions of another important tribunal, the European Court of Human Rights, which make it clear that at the moment it is not true to say that same sex marriage (whether under the guide of “marriage equality” or more accurate terminology) is a recognised “human right”. I will comment briefly on the terminology of “equality” before noting the relevant decisions.
Equality and Same Sex Marriage
As catchy and heart-warming as the phrase “marriage equality” is, it has to be said that it is fundamentally misleading in its description of the change of marriage laws needed to extend the institution of marriage to same sex couples.
I have commented on this matter previously: “Opposing same-sex marriage is not discrimination” (2011). But let me sum up briefly here. While a call for “equality” is right where people are being denied access to goods or rights on the basis of irrelevant characteristics, it is simply misleading when the matters to which access is demanded are defined in ways which require persons to be differentiated from each other. To use an example given in my previous paper, if I claim to be entitled to the status of “employee of Microsoft”, and hence the right to receive a salary from the company, then I need to fulfil the prerequisites of such a status. Unless I have a contract of employment with the company, and carry out the work I have been contracted to do, I have no right to complain of a lack of “employment equality” when I don’t receive a salary from Bill Gates.
So the question that must always be addressed when a claim for “equality” is made, is – “equality” in what respects? for what purposes? In the area of marriage, the question is, is denying two people of the same sex the right to enter the legal relationship, irrational because it discriminates on an irrelevant ground? What is marriage for? And the answer that communities have offered for millennia, is that “marriage” is an institution with certain core meanings. At its core, it is a social institution designed to facilitate the care of children who are born of a sexual relationship between a man and a woman, and to encourage both to be committed to the children and to each other.
Of course there are differing conceptions of marriage in modern Western societies. Marriage has always had the additional blessing of providing a place of care and support and fulfilment for the parties. In recent decades the role of marriage as providing mainly for the emotional and sexual needs of the parties to the marriage has come to the fore. But as many have pointed out, if marriage is centrally and primarily concerned with the preferences of two consenting adults, why does the legal system now need to be involved at all? The law has always regulated and recognised marriage primarily in the interests of children and families.
The UN & the ICCPR
This role of marriage can be seen in the provisions of the main UN document on the topic of “human rights”, the ICCPR, in article 23, which provides that:
(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
(2) The right of men and women of marriageable age to marry and to found a family shall be recognised. (emphases added)
Notice that art 23(2), which deals with the “right to marry”, does so in context of an article which is about the “family”, and the right to marry is inextricably linked with the right to “found a family”. And the fact that the bearers of that right are identified as “men and women” leads naturally to the assumption that this article concerns the usual form that marriage has taken throughout human history, the union of a man and a woman who will raise the children of their sexual union together.
It should not be surprising, then, that when the UN Human Rights Committee was asked to offer an opinion as to whether there was a “right to marry” which extended to same sex couples, in Joslin v New Zealand (Human Rights Committee, Views: Communication No 902/1999, 75th sess, UN Doc CCPR/C/75/D/902/1999; 17 July 2002) the Committee said there was not. After considering the arguments of the parties in detail, the Committee ruled that there was no issue of “discrimination” under art 26 of the Convention. They said:
8.2 The authors’ essential claim is that the Covenant obligates States parties to confer upon homosexual couples the capacity to marry and that by denying the authors this capacity the State party violates their rights under articles 16, 17, 23, paragraphs 1 and 2, and 26 of the Covenant. The Committee notes that article 23, paragraph 2, of the Covenant expressly addresses the issue of the right to marry.
Given the existence of a specific provision in the Covenant on the right to marriage,
any claim that this right has been violated must be considered in the light of this provision. Article 23, paragraph 2, of the Covenant is the only substantive provision in the Covenant which defines a right by using the term “men and women”, rather than “every human being”, “everyone” and “all persons”. Use of the term “men and women”, rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other. (emphasis added)
The UNHRC is by no means a “conservative” body. It has made a number of controversial decisions, extending discrimination rights on the basis of “sex” to the grounds of “sexual orientation”, for example. But on this issue it was quite clear- the ICCPR did not of itself make a failure to recognise same sex marriage a breach of human rights.
Of course the decision in Joslyn has its critics. In a detailed academic piece, “Marriage: A Human Right for All?” (2015) 36 Sydney Law Review 643 the authors Gerber, Tay & Sifris argue that the decision was wrong, and that in any event that the ICCPR is a “living instrument that should be interpreted and applied in light of present circumstances”, so that it would be decided differently today. Prof Triggs in her 2016 opinion piece, noted above, argues that “the law is evolving to accept marriage equality”. Different views can be offered on this point, of course. But one thing seems clear- it is not currently right to say that same sex marriage is a “human right” recognised by the international community.
The European Court of Human Rights
The situation is even clearer when decisions of the European Court of Human Rights are taken into account. The European Convention on Human Rights replicates many provisions of the ICCPR, one of which is art 12:
“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”
In Schalk and Kopf v Austria (ECHR, App 30141/04; 24 June 2010) the Court ruled that the Convention did not require States party to introduce a system of same sex marriage. The Court also referred to the use of the phrase “men and women” as supporting the traditional view of marriage, and also said that (at the time of its decision) there was no “consensus” among European nations as to whether same sex marriage should be recognised. It concluded:
63. In conclusion, the Court finds that Article 12 of the Convention does not impose an obligation on the respondent Government to grant a same-sex couple such as the applicants access to marriage.
Since then three other decisions of the Court have reaffirmed its earlier decision that the European Convention does not contain a “right to same sex marriage”: Hämäläinen v. Finland (application no. 37359/09; 16 July 2014); Oliari and Others v. Italy (application no. 18766/11 and 36030/11); and Chapin and Charpentier v. France (application no. 40183/07; 9 June 2016).
The debate about whether or not Australia should extend the institution of marriage to include same sex couples will of course continue. But the point being made here is simple: it is misleading to speak as if this change were simply a matter of implementing an internationally recognised “human right”. There is no such human right. The matter must be resolved by a careful consideration of the nature of the institution of marriage and the implications of change. It cannot be resolved simply by an appeal to “equality” or “human rights”.