A Family by any other Name ... or StarbucksTM comes to England
| DOI | http://doi.org/10.1111/1467-6478.00190 |
| Published date | 01 June 2001 |
| Author | Alison JDiduck |
| Date | 01 June 2001 |
JOURNAL OF LAW AND SOCIETY
VOLUME 28, NUMBER 2, JUNE 2001
ISSN: 0263-323X, pp. 290–310
A Family by any other Name ... or Starbucks
TM
comes
to England
Alison Diduck*
The article examines the recent House of Lords decision in Fitzpatrickv.
Sterling Housing Association from two perspectives. The first adopts a
perspective of rights and discrimination and speculates as to how a
court may in future decide such a case in the light of Britain’s
obligations under the Human Rights Act 1998. The second offers a
review of some of the literature which questions the effectiveness of such
a rights-based approach for achieving justice for lesbian women and
gay men, and, from a feminist perspective, expresses caution about
instantiating in law a traditional idea of `family’ and the privilege
attached to that ideal.
INTRODUCTION
This article is, in some ways, really two articles. More than that, there is a
sense in which these two articles conflict or contradict each other. What I
intend to argue, however, is not that academics or lawyers can speak from
both sides of their mouths, but rather that law, or more particularly legal
decisions, can rarely be seen as unreservedly good or bad, but instead are
complicated, as are their social, material, and political effects. After the House
of Lords decision in Fitzpatrick v. Sterling Housing Association,
1
the real –
material – effects, for example, for Mr Fitzpatrick and others in his situation
are clear. Justice is served when a person is not evicted from his home of many
years. Further, the symbolic or ideological effects of the court ending the legal
exclusion from the apparently privileged status of ‘family’ are important.
290
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1 [2000] 2 FLR 271.
*Centre for the Study of Law, the Child and the Family, Department of
Law, Brunel University, Uxbridge, Middlesex UB8 3PH, England
I am grateful to Gill Morris, Felicity Kaganas, and David Seymour who read drafts of this
paper and offered helpful comments and assistance, to the anonymous referees for the
Journal of Law and Society who provided valuable direction and information on case law,
and to the participants at the Socio-Legal Studies Association conference 2000 in Belfast
who provided important feedback when this article was presented there.
Indeed, one may be able to argue that the decision has great transformative
potential for law’s constitution of previously understood categories and
subjects as well as for policy fashioned on those understandings. But I also
want to suggest that for those of us who are sceptical about the meaning and
place of ‘family’ in the contemporary political and economic context, our
support for this potential ideological transformation must be guarded.
The decision in Fitzpatrick is a progressive and important one in that it is
a clear statement by law legitimating relationships previously deemed
illegitimate or unworthy of legal protection or respect. It puts paid to the
insulting ‘pretended’ family relationships of current debate.
2
In fact, despite
the Lords’ caveat to the contrary, it is possible to see this as a case about the
rights of gay men and lesbians, and to me it is primarily for that reason that it
must be supported, despite the reservations I discuss in the second part of
this article.
Precisely, what, however, did the Lords do in Fitzpatrick? They did not
consider Mr Fitzpatrick’s claim to be a matter of human rights or
discrimination and they specifically did not redefine ‘spouse’ as a matter
of statutory construction; in fact they were unanimous in saying that being a
‘spouse’ meant having an opposite sex partner. We may be tempted then to
say that they redefined ‘family’, but on a closer reading we can see that they
did not do that either. Instead, they increased the range of people who could
come within an already accepted and acceptable definition of family. What
families are for, what they do and by implication their role in society was not
challenged. And so, for the purposes of the Rent Act 1977, and it is crucial to
my mind that this is a form of social legislation,
3
this is a decision to be
celebrated. But I wish to adopt the arguments of Susan Boyd,
4
writing about
the Canadian decision of Attorney General for Ontario v. M and H
5
to
suggest that we must be wary of adopting this decision as a starting point
from which law can be used to integrate more and more people into a
concept of family that is not redefined.
The first part of this article, then, is an attempt to do what the House of
Lords declined to do: apply human rights and equality law to the Fitzpatrick
situation. The court was clear in Fitzpatrick that it was not engaging in
anything other than statutory construction. Lord Clyde stated this directly: ‘It
would be wrong to regard the present case as one about the rights of
291
(a) intentionally promote homosexuality or publish material with the intention of
promoting homosexuality;
(b) promote the teaching in any maintained school of the acceptability of
homosexuality as a pretended family relationship’. While government policy is to
repeal this section, it has encountered much public and parliamentary opposition.
3 Lord Hobhouse also characterised this legislation as ‘social legislation’: op. cit., n. 1,
p. 309.
4 S. Boyd, ‘Family, Law and Sexuality: Feminist Engagements’ (1999) 8 Social and
Legal Studies 369.
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