Advocacy News - Message from U.K. frontline: Protect Bill C-38

August 7, 2021

Message from U.K. frontline: Protect Bill C-38
High Court Judge justifies discrimination by Britain

By Sue Wilkinson and Celia Kitzinger

We have lost our High Court case (first reported here in May 2005 and again in June 2006), seeking a declaration of the validity of our legal Canadian marriage in the UK. We have been stripped of our marriage in our home country. In the UK, we are civil partners - not, as declared in Canada, wife and wife.

Sue Wilkinson and Celia Kitzinger outside the High Court, with Peter Tatchell of OutRage!, which backed their legal challenge to the non-recognition of same-sex marriage. London, 31 July 2006. (Photos courtesy of Outrage!)

We brought this important test case with the support of the national human rights watchdog, Liberty and the national LGBT campaigning group, OutRage! The 3-day High Court hearing (also reported here) took place in June 2006, and judgment was reserved. Our lawyers argued that not to recognize the validity of our marriage would constitute a breach of three articles of the European Convention on Human Rights: Article 8 (the right to respect for private and family life); Article 12 (the right to marry); and Article 14 (the right to freedom from discrimination).

In handing down his judgment - on Monday 31 July 2021 - Sir Mark Potter, President of the Family Division of the High Court, agreed that, in being denied the status of a married couple, we are discriminated against under Article 12 (so engaging Article 14). But he argued this discrimination is justified, because it has a 'legitimate aim'. That aim is to protect the traditional definition of marriage as between a man and a woman, with the primary aim of producing children. He said that marriage is "an age-old institution, valued and valuable, respectable and respected, as a means not only of encouraging monogamy but also the procreation of children and their development and nurture in a family unit (or 'nuclear family') in which both maternal and paternal influences are available in respect of their nurture and upbringing." He said we are not discriminated against under Article 8, because - drawing on precedents from British and European case law - a same-sex couple does not constitute 'a family' (and is therefore not entitled to 'respect for family life').

We are deeply disappointed by this judgment - not just for ourselves, but for lesbian and gay families nationwide. Denying our marriage does nothing to protect 'traditional' marriage. It simply upholds discrimination and inequality. A heterosexual couple's marriage made in Canada would be honoured and respected as a marriage in the UK. A same-sex couple's marriage made in Canada is treated differently: it is converted into a civil partnership in the UK.

This segregation - marriage for straights, civil partnership for gays - is a form of 'soft apartheid', based on sexual orientation. Defining marriage as a heterosexual institution based on procreation, and excluding same-sex relationships from the definition of 'family' is profoundly offensive to all lesbians and gay men (and to many heterosexuals). It simply does not reflect the diversity of marriage and family life in Britain today. It is retrogressive and reactionary - and it resonates depressingly with the reasons given for the recent denials of equal marriage in the US states of New York and Washington. We feel for the litigants (and their lawyers) in those cases too.

Where does this leave us? We are disappointed, but not discouraged. We will not abandon the struggle for equal marriage rights. We have been granted leave to appeal this judgment, and will do so if possible. We are seeking further legal advice, and financial support. The judge ordered us to pay £25,000 (CDN$53,800) towards the government's costs in the High Court case, and an appeal would likely cost more than twice as much.

Please let us know if you can offer any help: you can contact us (and find out more) via our website , which is regularly updated. We also welcome messages of support. If an appeal is not possible for us, there are others willing and able to take this issue forward, and we will work with them. And the UK is part of an international movement of same-sex couples married in Canada, who are fighting to protect their marriages. A judgment is expected soon in Israel and an Irish case comes to court in October.

Canada is the shining beacon that sustains us. Cherish, protect, and - above all - uphold your precious Bill C-38 this coming Fall.