Strategizing for the Future through the Civil Partnership Act

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Cited authorities 5

Cited in

Author	Lisa Glennon
Published date	01 June 2006
Date	01 June 2006
DOI	http://doi.org/10.1111/j.1467-6478.2006.00357.x

JOURNAL OF LAW AND SOCIETY

VOLUME 33, NUMBER 2, JUNE 2006

ISSN: 0263-323X, pp. 244±76

Strategizing for the Future through the

Civil Partnership Act

Lisa Glennon*

Using Fraser's `status model of recognition' as the conceptual lens

through which to view the `misrecognition' of gay and lesbian

relationships, this paper assesses the value of the Civil Partnership Act

in light of family law policy and gay and lesbian politics. The second

section considers the context of Northern Ireland where the issue is

complicated by prevailing moral conservatism and the historical

reductionism in the politics of identity.

INTRODUCTION

2004 saw the passage of the Civil Partnership Act.

After years of formal

policy silence where the courts took the lead in the recognition of same-sex

relationships,

this Act introduces a United Kingdom-wide registered

partnership scheme.

There are two main points to note about the legislation.

First, it is designed to remedy the fact that gay and lesbian couples had no

opportunity to formalize their relationship in law.

As such, registration is

244

ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School. Published by Blackwell Publishing Ltd,

9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

*School of Law, Queen's University Belfast, 28 University Square, Belfast

BT7 1NN, Northern Ireland

l.glennon@qub.ac.uk

I would like to thank Professor Anne Barlow and the anonymous referees for their very

helpful comments on an earlier draft. Any errors or omissions remain the responsibility of

the author.

1 Hereafter the Act. The Bill received Royal Assent on 18 November 2004 and the

Act came into force on 5 December 2005.

2Fitzpatrick v. Sterling Housing Association [2000] 2 FLR 27, and Ghaidan v.

Godin-Mendoza [2004] UKHL 30.

By 31 January 2006, 3,648 civil partnerships had been registered in England and Wales:

General Register Office Press Release, 22 February 2006, at

gro/content/news/Civil_partnership_numbers.asp>. By the time of writing official

statistics for registrations in Northern Ireland had not yet been published.

4 See N. Barker, `For Better or Worse? The Civil Partnerships Bill [HL] 2004' (2004)

26 J. of Social Welfare and Family Law 313±24, at 315.

limited to same-sex couples. While recognizing the problems faced by

unmarried opposite-sex couples

whose incoherent legal status has led to

many calls for reform,

the government stressed that this was conceptually

distinct from the position of same-sex couples who wanted to formalize their

relationship but were unable to do so. As a further justification for their

narrow remit, it was submitted that registration will lead to greater social

acceptance of same-sex relationships and thus, ultimately, cultural change.

Thus, the second defining aspect of the Act is the assimilationist position it

adopts, a highly contested strategy within gay and lesbian politics. Once

registered, couples are given a set of rights and duties which are modelled on

marriage.

The purpose of this article is to consider the strategy of the Act,

first, in light of family law policy and, secondly, within the framework of

gay and lesbian politics paying particular attention to the specificity of the

socio-cultural landscape in Northern Ireland which is included within the

United Kingdom-wide registration scheme.

LOCATING THE CIVIL PARTNERSHIPS ACT WITHIN FAMILY LAW

POLICY

British family law has been described as devoid of specific policy direction

although it is said to be premised on certain assumptions, which may not be

either accurate or up-to-date, about how families operate.

The deployment

of `constraining assumptions'

can be seen in varying shades throughout

family law policy. Indeed, as family policy in Britain has sought to wrestle

with social developments which have impacted upon family formation and

operation,

the response has not developed from a value-neutral position.

245

5 DTI, Women and Equality Unit, Civil Partnership: A Framework for the Legal

Recognition of Same-sex Couples (2003) para. 2.6.

6 See, for example, R. Bailey-Harris, `Law and the Unmarried Couple ± Oppression

or Liberation?' (1996) 8(2) Child and Family Law Q. 137±47; J. Mee, The Property

Rights of Cohabitees (1999); The Law Society, Cohabitation: The Case for Clear

Law (2002).

7 See DTI, op. cit., n. 5, para. 1.5.

8 These include a duty to provide reasonable maintenance for civil partners and

children of the family; assessment in the same way as spouses for child support;

joint treatment for income-related benefits and state pensions; recognition for

immigration purposes; arrangements for property division on dissolution of the

partnership; right to register the death of a partner; treatment in the same way as

spouses for all tax purposes, and inheritance, intestacy, and compensation rights.

9 Northern Ireland Office of Law Reform, Civil Partnership: A Legal Status for

Committed Same-Sex Couples in Northern Ireland (2003).

10 L. Fox-Harding, Family, State and Social Policy (1996) 187, 191±5.

11 id.

12 The number of marriages in the United Kingdom has fallen from around 480,300 in

1972 to just over 286,000 in 2001 (Social Trends No. 36 (2006) Figure 2.9). While

there has been a slight increase in the number of marriages in recent years (in 2003

ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School

Assumptions about `family values' and `social stability', and the connection

between the two, underpin policy development and, as such, the contem-

porary response is marked by contradictions, with policy-makers tacitly

embracing diverse functional families whilst attempting to maintain the

centrality of marriage.

Rhetorical commitments to traditional family values,

expressed in more positive New Labour terminology of `strengthening

marriage'

continue to pervade political dialogue and the absence of a

comprehensive debate on the interface between marriage, cohabitation, and

other forms of domestic living arrangements, has become particularly acute.

It is against this background that the Civil Partnership Act has been passed.

It has been pointed out that providing a registration scheme for same-sex

couples fails to address the lack of coherent policy driving the legal treat-

ment of unmarried cohabitants.

Unlike the position in other jurisdictions,

such as Canada and Australia, where comprehensive presumptive-based

laws govern unmarried relationships, the government in this jurisdiction has

never quite worked out what to do with these couples. Indeed, the

consultation paper which preceded the Act was very wary of blurring the

analytical separation between those who formalize their relationships and

those who do not. Recognizing that some unmarried cohabitants mistakenly

believe that they have rights and responsibilities under common law (the

common-law marriage myth), the initial governmental answer to debunking

this myth was to educate cohabitants regarding their lack of rights and

responsibilities as opposed to engagement in dialogue about whether and

how to bolster their legal status.

This approach is based on `constraining

246

there were 308,600 marriages) it is too early to predict whether this trend will

continue (id., p. 25). The percentage of unmarried women under the age of 60

cohabiting in Great Britain rose from 13 per cent in 1986 to 25 per cent in 2004. A

similar pattern can be seen in relation to men (id., p. 27). Further, there has been a

rise in the proportion of births occurring outside marriage in the United Kingdom

from 12 per cent of all births in 1980 to 42 per cent in 2004 (id., Table 2.19).

13 See Home Office, Supporting Families: A Consultation Document (1998) paras.

4.7±4.8.

14 id. See, also, C. Stychin, Governing Sexuality: The Changing Politics of Citizenship

and Law Reform (2003) ch. 2.

15 A. Barlow, `Regulation of Cohabitation, Changing Family Policies and Social

Attitudes: A Discussion of Britain Within Europe' (2004) 26 Law & Policy 57, at

60. See, also, A. Barlow and G. James, `Regulating Marriage and Cohabitation in

21st Century Britain' (2004) 67 Modern Law Rev. 143±76.

16 See The Law Society, Response to the Civil Partnerships Consultation Paper

(2003), at ociety.org.uk/influencinglaw/policyinresponse/

view=article.law?DOCUMENTID=160163>.

17 The Department of Constitutional Affairs (DCA) is leading a cross-government

working group to consider how `to dispel the myths around common-law marriage':

DTI, Women and Equality Unit, Responses to Civil Partnership: A Framework for

the Legal Recognition of Same-sex Couples (2003) paras. 3.5±3.6. The DCA has

funded two voluntary sector partners (Advice Services Alliance and One Plus One)

to manage the `Living Together' campaign, launched in July 2004, to make

cohabitants more aware of their legal status.

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assumptions'

concerning the choice of family form. Spouses choose

marriage with its attendant legal consequences, while contrariwise,

unmarried couples, by not marrying, choose to avoid legal regulation. These

deeply essentialist positions are not based on sound evidence; indeed, they

are contradicted by recent empirical research which reveals the prevalence of

the `common-law marriage myth'.

While the libertarian smokescreen of

the desire to respect `individual autonomy' can be invoked as the rationale

for keeping marriage and cohabitation ideologically distinct, it is also the

case that non-intervention in cohabiting relationships approximates with the

family values rhetoric which seeks to prioritize and strengthen marriage as

the most stable family unit in society. However, while the ideological

preference for marriage is retained, the practical legal distinctions between

marriage and cohabitation have become somewhat `blurred' as unmarried

cohabitants are recognized in certain legislative contexts such as provisions

relating to succession of tenancies, domestic violence, and inheritance.

These developments have taken place incrementally and there has never

been any clear or coherent policy driving family recognition in differing

contexts. The Civil Partnership Act adds to this by creating a new legal

partnership status. Falling into line with existing policy regarding the use of

relationship form as the standard proxy for legal regulation in family law, it

broadens the range of persons subject to undisturbed quasi-marital

regulation, thus bringing more `couples' within the preferred regulatory

net. One should not be surprised at this choice of strategy. As Barlow says:

[i]n terms of legislative initiatives in England and Wales, it is the ending of

direct discrimination against same-sex cohabitants using a form approach

which fits more easily with New Labour's communitarian marriage-promotion

agenda.

Indeed, there was a sense of urgency surrounding the question of same-sex

partnership rights, an issue which came into sharp focus in light of the

increasing European and international trend to give same-sex partners the

opportunity to formalize their relationships by marriage

or, more

commonly, a parallel form of civil registration,

and at a domestic level,

247

18 Fox-Harding, op. cit., n. 10.

19 A. Barlow et al., `Just a Piece of Paper? Marriage and Cohabitation in Britain' in

British Social Attitudes: The 18th Report ± Public Policy and Social Ties, eds. A.

Park et al. (2001). 56 per cent of those surveyed believed that cohabitation over time

gave rise to common-law marriage, carrying the same legal consequences as

marriage. See, also, A. Barlow et al., Cohabitation, Marriage and the Law (2005).

20 Barlow, op. cit., n. 15, p. 75.

21 For example, legislation in the Netherlands and Belgium has extended marriage to

same-sex couples.

22 Registered partnership legislation was first introduced in Denmark in 1989 and was

followed by Norway (1993), Sweden (1995), Iceland (1996), the Netherlands

(1998), France (1999), Belgium (2000), Germany (2000), Switzerland (2001), and

Finland (2002).

ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School

following recent decisions which exposed the differential legal treatment

between unmarried opposite-sex and same-sex couples.

These analogy-

based claims highlighted the need for reform and helped to shape the

assimilationist policy response. The second part of this article will consider

whether the benefits of state recognition justify this approach. Keeping the

debate within family law policy, however, the next section will consider

whether any features of the Act could create the conditions for a more

thoughtful debate on the use of relational concepts in defining the legal

obligations between family members.

SETTING THE SCENE FOR A NEW DIALOGUE IN FAMILY LAW

Family policy needs to develop much more carefully selected methods of

classifying legally relevant relationships. Brubaker, in his work on identity

politics, talks of the need to move away from conceiving groups as bounded

entities to speaking of categories which are `at best a potential basis for

group-formation or ``groupness''.'

This involves:

taking as a basic analytical category not the `group' as an entity but groupness

as a contextually fluctuating conceptual variable.

Pierik also talks about moving from `groups to categories, and from cate-

gories to processes of categorization'.

This is a useful conceptual

framework to borrow for family law policy because it encourages a shift

from placing individuals within all-purpose groups bounded together through

ascribed attributes (such as sexual orientation) to variable categories of

identification. Focusing more directly on the process of categorization

redirects attention to the purpose of family law regulation and encourages a

bottom-up approach with legally significant relationships being constructed

in a purposive manner. Functional characteristics could take precedence over

relationship form and a range of relational definitions could emerge.

However, moving from form to function will not take place instantaneously

and thus the task is to create the necessary conditions for this development.

The availability of partnership registration for same-sex couples is helpful in

working towards this as it achieves two things.

First, it helps to divest sexual orientation, which is not a reliable unit of

relationship categorization, of meaning in family law policy. Secondly, it

allows the diversity of relationships within this previously excluded `group' to

emerge. In other words, it allows a levelling out of relationships from which a

248

23 See op. cit., n. 2.

24 R. Brubaker, Ethnicity without Groups (2004) 12.

25 id., p. 11.

26 R. Pierik, `Conceptualizing cultural groups and cultural difference: The social

mechanism approach' (2004) 4 Ethnicities 523, at 525.

ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School

more streamlined debate on family obligations can take place. On one view we

should be concerned that registration will make more acute the `power

imbalances'

between formal and unformalized relationships. However, as

opposed to viewing this in negative terms, it is possible to see the benefits of

sharpening the analytical separation between these relationship-types. The

legal inability of same-sex couples to formalize their relationship complicates

the politics of relationship consequences. By fusing same-sex and unmarried

opposite-sex partners within the category of unformalized relationships, it

becomes difficult to map the desired legal response as one is dealing, in

abstract terms, with those who cannot and those who choose not to formalize

their relationship. Indeed, the consultation paper on civil partnerships con-

cluded that it was impossible to design a single framework to meet the needs

of both same-sex couples who wanted to formalize their relationships and

opposite-sex couples who did not want to marry. However, giving same-sex

couples the ability to formalize their relationship in law allows one to

generalize about unformalized relationships and, in a less complicated way, to

balance questions of individual autonomy with the need for protection from,

among other things, the economic fall-out of relationship breakdown

unfettered by arguments that within this legal category are those who do not

have the option of relationship formalization. It is important, however, that

this argument is not taken to affirm the legitimacy of essentializing about the

choice of relationship form. Indeed, as noted earlier, recent evidence has

exposed the misguided assumption that unmarried cohabitants consciously opt

out of formal relationship regulation. However, sharpening the abstract

division between those who formalize their relationship and those who do not

allows a more clear-cut debate about relationship consequences to take place

where the question of whether couples do not formalize relationships to avoid

legal regulation can be addressed unfettered by the complicated inclusion of

those who do not have the option of doing so.

Further, while it could be said that the exclusion of opposite-sex couples

from the Act is a missed opportunity to address the problems of cohabitation

law, this may actually help to off-set the potential stagnation of family law

policy caused by the affirmative nature of the legislation. The provision of

greater rights for unmarried couples is still not formal government policy,

but only a few months after the Act was passed and during the run-up to the

2005 General Election, the Lord Chancellor asked the Law Commission to

consider the law relating to cohabiting couples.

That the Commission has

249

27 P. Ettlebrick, `Since When Is Marriage a Path to Liberation' in Lesbian and Gay

Marriage: Private Commitments, Public Ceremonies, ed. S. Sherman (1992) 21.

28 Law Commission for England and Wales, Ninth Programme of Law Reform (2005)

paras. 3.3±3.8. This project, which commenced in July 2005, will last for two years.

The Commission's previous attempts to look at the property rights of homesharers,

after almost a decade's deliberation, did not produce any recommendations (Law

Commission for England and Wales, Sharing Homes: A Discussion Paper (2002)).

The current project has a narrower remit, looking at couples in marital-like

ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School

been tasked with this project suggests at least some recognition of the over-

due need to reconsider the law in this area. By contrast, one could speculate

that the inclusion of opposite-sex couples within the Act may have been

presented as the definitive legal response to the question of adult relationship

regulation. While registration would only have been a partial solution,

merely shifting the parameter of unregulated cohabitants from unmarried to

unmarried and unregistered, it could have been used to deny the need for

future reform. The question of how to treat unmarried and unregistered

couples may have lost significance as it could be said that those who wish to

formalize their relationship have the option(s) of marriage and registration.

Thus, opening up registration to all couples could have permanently

entrenched the use of relationship form in legal policy, perpetuated the

exclusion of those who do not formalize their relationship, and hindered the

development of a more beneficial long-term anti-essentialist strategy which

demotes the significance of relationship status in favour of a functionalist

approach which asks more critical questions about the legal obligations of

family members. It is submitted, therefore, that the introduction of civil

partnerships may help to create the conditions for a more disruptive debate

on family obligations.

The question is, however, whether the assimila-

tionist policy of the Act can be rationalized in a similarly positive manner.

THE ASSIMILATIONIST/ANTI-ASSIMILATIONIST DEBATE

The assimilation/anti-assimilation debate, most vocal in North America, is

usually constructed around the same-sex marriage question.

It represents

250

relationships only, but a broader scope, focusing on the financial hardship suffered

by cohabitants or their children on the termination of their relationship either by

separation or death (para. 3.6).

29 Further, as Lahey observes, the inclusion of same-sex couples within a quasi-

spousal legal category may carry economic disadvantages for some. Gays and

lesbians will lose their categorization as individual legal subjects and will instead

inherit `some of the larger responsibilities associated with relationship recognition'

(K. Lahey, Are We Persons Yet?: Law and Sexuality in Canada (1999) 243±53).

Thus, the incidents of relationship recognition may not be positive for all as they

will work in a complex and contingent way across class, gender, cultural, and

wealth-based variants thus keeping alive the need for a debate on the use of

relational concepts in the assessment of need and the provision of societal resources

(see, also, Barker, op. cit., n. 4, p. 319).

30 It is not the purpose of this article to lament the government's option of civil

registration as opposed to marriage. Indeed, as LaVio lette notes, registered

partnerships can be an `acceptable compromise when viewed as a political strategy'

(N. LaViolette, `Waiting in a New Line at City Hall: Registered Partnerships as an

Option for Relationship Recognition Reform in Canada' (2002) 19 Can. J. of Family

Law 115, at 142) and can act as a precursor to the legitimation of same-sex marriage.

(See, also, K. Waaldijk, `Civil Developments: Patterns of Reform in the Legal

Position of Same-Sex Partners in Europe' (2000) 17 Can. J. of Family Law 62.)

ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School

the division between activists around the utility of rights-based strategies in

gay and lesbian politics. The dialogue of Stoddard and Ettlebrick synthesizes

the core of the debate. Stoddard, in favour of seeking the right to marry, cites

three reasons which he classifies as practical, political, and philosophical.

On a practical level, the status of marriage carries economic and practical

benefits which are currently withheld from same-sex couples. From a

political perspective, it is the issue which `most fully tests the dedication of

people who are not gay to full equality for gay people'.

Indeed, given the

current status of marriage in society, denying access to gays and lesbians

carries the `implicit message' that:

two men or two women are incapable of achieving such an exalted domestic

state. Gay relationships are somewhat less significant, less valuable.

In response to those who criticize the institution of marriage, Stoddard

directs his philosophical explanation by making the distinction between `the

desirability of marriage' and `the desirability of the right to marry'.

Further, he speculates that same-sex marriage will have transformative

potential in ridding the institution of traditional gender roles and divesting it

`of the sexist trappings of the past'.

By contrast, Ettlebrick voices the concerns of the anti-assimilationist

lobby. First, she argues that it is misplaced optimism to think that same-sex

marriage is a liberating concept. Not only will it constrain and render

invisible same-sex relationships, but it will also force the assimilation of

gays and lesbians into the mainstream thus undermining the goals of gay

liberation.

Secondly, Ettlebrick submits that this will affirm the status of

marriage as the proxy for the conferment of rights and responsibilities, thus

furthering the gap between the privileged position of those who formalize

their relationship and those who do not. In addition, by playing on the

`sameness' of gay and lesbian relationships, she predicts that activists will

have compromised their opportunity to be placed:

...inaposition of power that would allow us to transform marriage from an

institution that emphasizes property and state regulation of relationships to an

institution that recognizes one of many types of valid and respected

relationships.

251

31 T. Stoddard, `Why Gay People Should Seek the Right to Marry' in Lesbian and Gay

Marriage: Private Commitments, Public Ceremonies, ed. S. Sherman (1992) 14.

32 id., p. 17.

33 id., p. 18. See, also, H. Dalton, `Reflections on the Lesbian and Gay Marriage

Debate' 1 [1991] Law & Sexuality 1±8.

34 Stoddard, id., p. 18.

35 id., p. 19.

36 Ettlebrick, op. cit., n. 27, p. 21.

37 id., p. 23.

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Thus, the politics of recognition can be both assimilationist and anti-

assimilationist in nature as claimants can seek to emphasize, relative to

heteronormative assumptions about relationships, the sameness or difference

of gay and lesbian relationships. This can also be expressed as the distinction

between traditional identity politics and queer politics. Traditional identity

politics seeks to `revalue unjustly devalued identities',

such as gay and

lesbian sexuality, through affirmation of the demeaned characteristics of the

group. This requires the presentation of group cohesion and collective

identity which puts pressure on members to conform,

resulting in a:

drastically simplified group-identity which denies the complexity of people's

lives, the multiplicity of their identifications and the cross-pulls of their

various affiliations.

By contrast, queer politics appears much more appealing for its opposition to

defined group boundaries and assumed collective identities. Contesting the

fixed nature of sexuality and the `binary opposition between homosexuality

and heterosexuality',

queer theory sees:

the binary of heterosexual-homosexual . . . as a regulatory fiction, with the

consequence that normative assumptions underpinning the `naturalness' of

heterosexuality are themselves merely fictions.

One of the main differences between these strategies is the extent to which

they propose to address underlying structural issues or assumptions.

Fraser

speaks of the distinction between `affirmative' remedies which `aim to

correct inequitable outcomes of social arrangements without disturbing the

underlying social structures that generate them', and transformative

strategies which, by contrast, `aim to correct unjust outcomes precisely by

restructuring the underlying generative framework'.

While identity politics

fall within Fraser's notion of `affirmative remedies'

which, in addressing

claims of misrecognition, tend to reify `collective identities',

by contrast,

the politics of queer theory fall within the concept of transformative

strategies

which `are in principle dereifying'.

252

38 N. Fraser, `Social Justice in the Age of Identity Politics: Redistribution, Recogni-

tion, and Participation' in Redistribution or Recognition? A Political-Philosophical

Exchange, eds. N. Fraser and A. Honneth (2003) 12.

39 N. Fraser, `Rethinking Recognition' (2000) 3 New Left Rev. 107, at 112.

40 id.

41 Fraser, op. cit., n. 38, p. 75.

42 R. Kitchin and K. Lysaght, `Heterosexism and the geographies of everyday life in

Belfast, Northern Ireland' (2003) 35 Environment and Planning 489, at 490±1.

43 See Lahey, op. cit., n. 29, p. 262.

44 Fraser, op. cit., n. 38, p. 74.

45 id., p. 75.

46 id., p. 76.

47 id., p. 75.

48 id., p. 77.

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The question is, what do we make of the Civil Partnership Act when

placed within this debate? Anti-assimilationist concerns can, clearly, be

directed against the Act because although the government is at pains to

stress that it is not marriage, the regulation which flows from registration is

based on marriage and thus contains inherent assumptions about the

exclusivity of sexual relationships and the mutual acceptance of legally

enforceable duties of care and support. Indeed, Barker says that the entry

requirements and legal consequences of civil registration reinforce `com-

pulsory heterosexuality' defined as `the ideology of a sexual, monogamous,

life-long relationship between two people'.

She notes its assimilating

effects in `civilizing' gays and lesbians by compelling same-sex couples to

structure their relationships within a marriage-like framework and excluding

relationships which do not fit within this model.

This carries the danger of

pushing `other' non-marital like relationships further from the reform

agenda

where, as noted by Barker, `outsiders' become `marginalised by

the ``new insiders''.'

Certainly if we were to judge the Act within the

confines of the debate as outlined, it would be hard not to reach such a

conclusion. However, does gay and lesbian emancipation have to be located

within the absolutes of assimilation or anti-assimilation positions? Indeed, it

is problematic to represent these positions as polar opposites and it is

possible to find those who have tried to steer a more neutral course in the

assessment of strategies.

In this respect, it is interesting to consider the

work of Fraser who makes `the case that a politics of recognition need not

lead to cultural essentialism'

by presenting a non-identitarian politics of

recognition which is centred on the eradication of social status

subordination.

FRASER'S NON-IDENTITARIAN POLITICS OF RECOGNITION

Fraser asserts the need for cultural or symbolic change to remedy the

misrecognition, through institutionalized `heteronormative value patterns',

of gays and lesbians as a `despised sexuality'.

The remedy must thus derive

from the politics of recognition, challenging the `status order' and not, as

redistribution theorists would argue, the `economic structure of capitalist

253

49 Barker, op. cit., n. 4, p. 319.

50 id., pp. 320±1.

51 id.

52 id.

53 See N. Hunter, `Marriage, Law, and Gender: A Feminist Inquiry' 1 [1991] Law &

Sexuality 9±30.

54 S. Benhabib, The Claims of Culture: Equality and Diversity in the Global Era

(2002) 68.

55 Fraser, op. cit., n. 38, p. 18.

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society'.

However, Fraser distances her version of recognition from

traditional identity politics noting that equating the two `. . . reduces . . . a

plurality of different kinds of recognition claims to a single type, namely,

claims for the affirmation of group specificity.'

Recognition theorists

such as Honneth

and Taylor

view the `social practices of recognition'

as `crucial to the formation or malformation of the self'.

Self-identity is

thus influenced by the regard of others and maligned groups are subject to

a damaged sense of value and worth. On this view there is a link between

`individual and collective damage' which leads to perceived synonymity

between `individual claims to authentic self-expression' and `collective

aspirations to cultural recognition'.

Benhabib, in critique, asks why an

`individual's search for authenticity [should] take the form of a search for

collective self-expression'.

Indeed, the merging of the individual and the

collective leads to concerns of essentialism. By contrast, Fraser develops a

non-identitarian politics of recognition where recognition is viewed not as

a question of `self-realization', but as a question of justice.

Under this

model, recognition becomes a question of social status where `institu-

tionalised patterns of cultural value' impact upon the status of social

actors and where the denial of full participatory rights causes `mis-

recognition and status subordination'.

While traditional identity politics

contend that members of maligned groups collectively assert an

internally-driven group culture,

viewing misrecognition as a question

of social status means that:

what requires recognition is not group-specific identity but the status of

individual group members as full partners in social interaction.

254

56 id., p. 24. While Fraser argues that sexuality struggles require a remedy which

challenges `misrecognition', that is not to say that gays and lesbians are not subject

to maldistribution nor to suggest that recognition claims will not have redistributive

consequences. Indeed, Fraser's model interprets the concept of justice as

incorporating aspects of recognition and redistribution claims. As Nic Craith notes:

[c]oncepts of recognition and justice are set in a larger social framework. Injustice

is not merely defined as misrecognition, but concerns itself with economic

structures, property regimes, and labour markets.

M. Nic Craith, Plural Identities ± Singular Narratives: The Case of Northern

Ireland (2002) at 199.

57 Fraser, op. cit., n. 38, p. 12. See, also, Benhabib, op. cit., n. 54, pp. 69±70.

58 A. Honneth, The Struggle for Recognition: The Moral Grammar of Social Conflicts

(1996). See Benhabib, id., p. 51.

59 C. Taylor, Multiculturalism and the Politics of Recognition (1992); Benhabib, id.

60 Benhabib, id., p. 51.

61 id., p. 52.

62 id.

63 Fraser, op. cit., n. 38, pp. 28±9.

64 id., p. 29.

65 Fraser, op. cit., n. 39, p. 112.

66 id., p. 113.

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Individualizing the effects of group-based misrecognition in this way ensures

that the remedy does not have to involve group reification. The focus is on

achieving `participatory parity' which involves rolling out the opportunities

for full social interaction on equal terms but does not require and/or assume

that all group members interact in the same way.

Fraser's model of non-identitarian recognition is a useful conceptual

template from which to view gay and lesbian disempowerment. Indeed,

Fraser reflects on heterosexual-only marriage laws which entrench the

`heterosexual cultural norm' and deny parity of participation to gays and

lesbians. When considering how to change this, Fraser works within the

traditional binarism of assimilation/anti-assimilation positions. The first

option is to legitimize same-sex marriage. The second involves de-institu-

tionalizing marriage, thus removing marital status as the proxy for the

conferment of benefits and substituting it with another indicator which,

according to Fraser, could be citizenship and/or residency. Both, according

to Fraser, work to achieve `participatory parity' for gays and lesbians while

avoiding the dangers of group reification. While Fraser's model may not

appear to provide any clear answers on strategy as the choice remains

reduced to an assimilationist or anti-assimilationist option, assessment is

contained within a theoretical framework which allows one to ignore the

theoretical baggage associated with both traditional identity politics and

queer politics and to concentrate on `what precisely the subordinated parties

need in order to be able to participate as peers in social life'.

This allows us

to take a more nuanced approach to strategizing. Assimilation with existing

norms, associated with rights-based claims, is usually positioned against the

deconstructionist aims of those who seek radical transformation of the social

order, the two being posited as mutually exclusive. By contrast, however, it

is possible to develop a middle-course strategy. Indeed, Fraser speaks of the:

possibility of a via media between an affirmative strategy that is politically

feasible but substantively flawed and a transformative one that is

programmatically sound but politically impracticable.

Viewed from Fraser's position of centralizing the social status of individual

members of the maligned community, it is submitted that the assimilationist

strategy of civil partnerships is worth pursuing as an achievable middle-

course agenda.

255

67 id., p. 115.

68 Fraser, op. cit., n. 38, p. 79. Emphasis in original.

69 Although Fraser rejects anything less than legalizing same-sex marriage, the

proposed civil partnership scheme does form part of the strategic course of

partnership assimilation and may be the only prospect of immediate development.

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THE BENEFITS OF THE ASSIMILATIONIST STRATEGY OF CIVIL

PARTNERSHIPS

There are several reasons why this strategy should be supported. First, while

transformative strategies are preferable to many, they are also more difficult

to achieve.

Lacey, for example, cites Unger who envisages a deconstruc-

tionist agenda of:

pulling down boundaries, questioning assumptions about how things have

been organised traditionally, and making possible a wide variety of different

kinds of social, personal and political arrangement.

Lacey concludes, however, that this:

suffers from a naively utopian character which arguably disqualifies it as a

serious argument against practical reforms which seek to intervene in the

actual legal world experienced by relatively powerless, disadvantaged

groups.

The same can be said of the use of `queer theory' as the theoretical

mechanism to achieve wholescale social transformation. The likely success

of strategies must be measured against the current social and political

climate and alongside the status of the claimants and their political rele-

vance. Thus, while theorists can make very appealing arguments about the

use of queer theory within a deconstructionist agenda, beyond hyperbole, it

is unclear that such activism can deliver. To claim otherwise overstates the

potential of gay and lesbian activists to challenge broad structural inequali-

ties and underestimates the significance of their historical disempowerment.

As such, one must be careful to avoid holding out for currently unattainable

goals at the expense of smaller reform initiatives which cumulatively have

potential to destabilize the norm.

Secondly, considering the historical disadvantage, prejudice, and stereo-

type suffered by gays and lesbians, the use of queer theory to address their

`misrecognition' carries certain dangers. One of the reasons why queer

theory is so appealing is because, by its very nature, it rejects the presenta-

tion of a unified group-based collective. As such, while the reifying

tendencies of assimilation are well rehearsed, the reifying implications of

queer theory are less frequently articulated. This is, however, an unbalanced

representation. Collective reification can also be a by-product of anti-

assimilationist agendas as they too involve claims which tend to synthesize

group traits as universal (the difference being that this is outside the confines

256

70 Fraser, op. cit., n. 38, p. 77.

71 N. Lacey, Unspeakable Subjects, Feminist Essays in Legal and Social Theory

(1998) 39.

72 id.

73 See C. Stychin, ANation by Rights: National Cultures, Sexual Identity Politics, and

the Discourse of Rights (1998) 17.

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of existing norms).

Take, for example, the reform agenda as envisaged by

Ettlebrick.

Seeking to emphasize relationship differences and to embark

upon a wide-ranging reform project, Ettlebrick notes that `[b]eing queer

means pushing the parameters of sex, sexuality, and family, and in the process

transforming the very fabric of society'.

In attempting to affirm group

identity through deconstruction of the norm, this agenda essentializes gay and

lesbian relationships as `alternative' and the goals of gay liberation as going

beyond the concerns of the primary subject. As this requires change which not

only departs from the dominant heteronormative culture but which

deconstructs it, the danger is that using gay and lesbian politics as the vehicle

to achieve this can work to perpetuate existing misrecognition by fuelling

homophobic perceptions of deviance. Furthermore, in taking such an absolute

approach, Ettlebrick overlooks the binarism in gay and lesbian activism which

recommends diverse strategic positions. Indeed, it is interesting to note that

her analysis was reprinted in a text which drew upon the personal narratives of

twenty-four gay and lesbian couples who were interviewed about their

relationships, some of whom had married and others who had chosen not to.

While some viewed marriage `. . . as an abhorrent ritual of patriarchy . . . others

[saw] it as a point of passage and an important celebration.'

Ettlebrick's representation of gay and lesbian relationships as universally

different `from the dominant culture' sits somewhat uneasily with the diver-

sity of experience illustrated in this work. In a similar vein, she essentializes

the experience of heterosexual relationships which in fact, as a comparative

reference point, is a moving target. While marriage continues to hold an

idealized position in social and legal ideology, its content is contested

through fluid patterns of spousal expectations and interdependencies and

increased reliance on `personal fulfilment' when making choices about the

continuation of relationships.

Indeed, Barker makes the point that:

it would be incorrect to assume that there is any more homogeneity in

heterosexual communities than there is in lesbian and gay communities, and

relationships between people of different-sexes are as capable of being `queer'

as those between people of the same-sex.

As I have observed elsewhere, why should concern for gays and lesbians

who do not conform to the paradigm of the conjugal family be any greater

than for heterosexuals whose relationships similarly do not conform to this

model?

257

74 See Ettlebrick, op. cit., n. 27.

75 id., p. 22.

76 S. Sherman (ed.), Lesbian and Gay Marriage: Private Commitments, Public

Ceremonies (1992) at back cover.

77 See J. Lewis, `Marriage and cohabitation and the nature of commitment' (1999) 11

Child and Family Law Q. 355, and Fox-Harding, op. cit., n. 10, pp. 101±5.

78 Barker, op. cit., n. 4, p. 319.

79 L. Glennon, `Targeting the Exclusionary Impact of Family Law' in Family Law and

Family Values, ed. M. Maclean (2005) 175.

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A third reason for supporting partnership assimilation is that it is a

preferable option to a possible alternative. A trend has emerged whereby

more `progressive' proposals are actually designed to mask the express

recognition of same-sex relationships for either political reasons to minimize

opposition to reform and/or due to prejudice against such relationships.

Thus, one must exercise caution when faced with proposals to create an

asexual legal category of domestic relationship at this stage in the evolution

of gay and lesbian rights as such proposals `can amount to little more than

homophobic responses to the demands for legal development'.

However, it would be wrong to present assimilation as nothing more than

a counter-response to such strategies as there are distinct benefits, par-

ticularly when the focus is Fraser's goal of achieving `participatory parity'.

Against the institutional prejudice against sexual minorities, partnership

assimilation can be viewed as a powerful exercise in affirmation. From this

perspective, the oft-citied negatives of assimilation can be seen as positives.

Assimilation means legitimizing on the basis of existing norms and, for

many, the affirmation of normative standards make it problematic. However,

from another perspective, it is precisely this feature which makes it worth-

while. By `normalizing' same-sex relationships, this strategy goes some way

towards countering the maligned social status of gays and lesbians, not just

in relational terms but also in an individual capacity.

Of course, this can be

criticized for over-relying on the legitimizing influence of the law. On an

alternative construction, however, one can look at the negative consequences

of continuing to withhold state-sanctioned partnership status rather than

making grand assumptions about the positive consequences of doing so.

Partnership legitimation will not, byitself,eradicate prejudice. But

continuing to withhold relationship status from gays and lesbians constitutes

an impermeable barrier to full social status. Indeed, the ability to identity

oneself without social stigma is thwarted by the presence of barriers to full

citizenship, the terms of which include choice in relationship form. Thus,

symbolically, the exclusion from legal partnership status is of greater

detriment than the potential benefits of inclusion. This construction of the

symbolism associated with the inclusion/exclusion question can be seen in

Canadian jurisprudence where several provincial courts have held that the

prohibition of same-sex marriage violates section 15 of the Canadian Charter

of Rights and Freedoms. In particular, it is borne out by the respective

interpretations provided by the claimants and the courts on the issue. While

258

80 See, for example, the amendment to the Civil Partnerships Bill, passed at Report

Stage in the House of Lords, which sought to extend the Bill to allow close relatives

to form a civil partnership. For a discussion of this see L. Glennon, `Displacing the

conjugal family in legal policy ± a progressive move?' (2005) 17 Child and Family

Law Q. 141.

81 id., p. 163.

82 For a discussion of the symbolic weight of the law, see N. Bamforth, Sexuality,

Morals and Justice: A Theory of Lesbian and Gay Rights Law (1997) 283±9.

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the claimants tended to focus on the positive symbolism associated with

same-sex marriage,

the courts focused, to a greater extent, on the damaging

impact of the current heterosexual definition of marriage. Indeed, the basis

of the provincial decisions is that the exclusion of same-sex couples from

legal marriage perpetuates the stereotypical characterisation of such rela-

tionships as `less worthy of recognition than opposite-sex relationships'.

This is not to underestimate the dangers associated with this strategy.

Indeed, Stychin points out that the price paid for sexual citizenship is the

reproduction of dominant heteronormativity where the struggles of sexual

dissidents become privatized, depoliticized, and desexualized.

Indeed,

there is always the danger that assimilationist strategies will be co-opted by

conservative forces to entrench current norms. However, rejecting such

strategies can also be used to the same damaging ends, particularly as

holding out for nothing less than radical transformation of the social order

can be paralysing. Against this, partnership assimilation can be seen as a true

middle-course strategy because it avoids the absolutism of deconstruction

whilst helping to complicate the `terrain',

the actors, and the substantive

claims of future struggles. Let us recall that Fraser's end-goal of `par-

ticipatory parity' requires the extension of participation rights and not the

actual participation of all. Partnership assimilation extends `participatory

parity' by ensuring that gays and lesbians can interact as full social actors,

but also allowing the individual expression of non-conformity. Thus, while

those operating within non-conformist frameworks do not have to be

absorbed within normative models, they may derive benefit from the

ongoing eradication of legal and social prejudice, thus gaining greater

currency in the `democratic public sphere'.

This has the potential to

weaken the norm. Indeed, the process of asserting rights carries potential in

itself. Stychin, for example, observes that in the South African context, the

lobbying of gay and lesbian activists to retain `sexual orientation' as a

prohibited ground of discrimination in the Constitution was important not

just for the success of the claims but for the `coalition building' generated by

the process of claiming rights.

According to Stychin, the `feeling of

inclusion within the polity' contributed to `a right to participate as openly

lesbian, gay or bisexual within the public sphere' which may be `one of the

most powerful offshoots to constitutional rights protection'.

Thus, the

value of rights-based discourse is not simply about the rights claimed but

259

83 In the words of one claimant in Halpern v. Attorney General of Canada, 2003 65

O.R. (3rd) 161 (C.A.) para. 9, `if we had the freedom to marry, society would grow

up to understand our commitment and love for each other'.

84 id., para. 107.

85 Stychin, op. cit., n. 14, pp. 35±6, 140.

86 Fraser, op. cit., n. 38, p. 79.

87 Benhabib, op. cit., n. 54, p. 70.

88 Stychin, op. cit., n. 73, p. 75.

89 id., pp. 76 and 77.

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must also be measured by its impact on the social and legal landscape and by

the potential of those whom it empowers/enfranchises.

Turning our attention to Northern Ireland, which is part of the United

Kingdom-wide registration scheme, it will be argued that there are additional

culturally-specific reasons for supporting the assimilationist strategy of civil

partnerships.

DEVELOPING CULTURALLY-SPECIFIC ANSWERS

The historic tension in Northern Ireland can be synthesized as a struggle over

national identity supremacy.

The conflict is represented as between

polarized cultural communities, Protestant/unionist and Catholic/nationalist,

a representation which institutionalizes the `two-traditions paradigm' and

essentializes community-based group boundaries.

The over-determination

of community belonging makes assumptive connections between religion,

political affiliation, and national identity preferences. As such, the very

essence of the reifying implications of the politics of identity can be seen. As

Nic Craith notes:

[i]dentity in Northern Ireland is often perceived in a two-dimensional

framework, as Orange or Green, unionist or nationalist, Protestant or Catholic

but that is false and limiting.

Such reductionism can be seen in the recent debates surrounding the

proposed Bill of Rights. In the political settlement, the newly established

Northern Ireland Human Rights Commission (NIHRC) was given the task of

consulting and advising the British government on a Bill of Rights for

Northern Ireland which reflects the particular circumstances of the region

and the principles of mutual respect for the identity and ethos of both com-

munities.

However, the drafting process has not been without contention,

especially surrounding the scope of the Bill in relation to the `particular

circumstances of Northern Ireland'. Does this mean that the Bill should be

260

90 For analysis of the Northern Ireland conflict see J. Whyte, Interpreting Northern

Ireland (1990); J. McGarry and B. O'Leary, Explaining Northern Ireland: Broken

Images (1995). The Good Friday/Belfast Agreement (Agreement Reached in the

Multi-Party Negotiations (1998; Cm. 3883)) forms the basis of the political

settlement in Northern Ireland and has been given legal effect by the Northern

Ireland Act 1998. The devolved administration took legislative and executive

authority on matters which had been transferred to their responsibility, Northern

Ireland Act 1998, ss. 4±15. In October 2002, however, devolution was suspended

and Parliament at Westminster reassumed responsibility and control of the Northern

Ireland Departments.

91 M. Nic Craith, Culture and Identity Politics in Northern Ireland (2003) 189.

92 id., p. 5.

93 Section 69(7) of the Northern Ireland Act 1998 and paragraph 4 of the Human

Rights section of the Good Friday/Belfast Agreement.

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confined to the political conflict and the rights of the `two communities', in

other words, expressed exclusively in religious and political terms? Cer-

tainly, as noted by the Committee on the Administration of Justice (CAJ),

some believe that the scope should be limited to rights in terms of unionists/

nationalists or Catholics/Protestants

and by seeking to include non-conflict

related issues in the Bill, it is alleged that the NIHRC has acted outside its

authority under the Northern Ireland Act. By contrast, in advocating the

development of a set of rights beyond the `lowest common denominator

approach', the CAJ believe that:

[a]ny narrow conception of human rights that sees rights as part of a trade-off

between communities is divisive and misses a unique opportunity to develop a

vision of shared values.

This debate highlights two important points. First, it shows the limitations of

reducing Northern Ireland to two communities based on religious divides

and perceived political affiliations.

Secondly, it is reflective of the inherent

conservatism of Northern Irish society and the suppression of a range of

`progressive' issues.

1. The socio-cultural landscape

Nagel, in pointing out that `all nationalism tends to be conservative and

`conservative' often means ``patriarchal'','

suggests that this is due to the

tendency of nationalists to be `retraditionalisers',

that is, using tradition as a:

legitimising basis for nation-building and cultural renewal. These traditions,

real or invented, are often patriarchal and point out the tenacious and

entrenched nature of masculine privilege and the tight connection between

masculinity and nationalism.

261

94 CAJ preliminary comments on `Making a Bill of Rights for Northern Ireland' ± a

consultation by the NI Human Rights Commission, September 2001, at

www.caj.org.uk/keydocuments.html>.

95 id. Smith notes that those favouring an expansive view of the Bill of Rights project

include NGOs, community groups, trade unions, political parties such as the

Northern Ireland Women's Coalition, Social Democratic and Labour Party, Sinn

FeÂin, and the Alliance Party. By contrast, those who prefer a narrower approach

tend `to be associated to unionist politics and culture including the Democratic

Unionist Party, the Ulster Unionist Party, the Cadogan Group, faith groups and

churches' (A. Smith, `The drafting process of a Bill of Rights for Northern Ireland'

[2004] Public Law 529).

96 See S. Livingstone, `The Need for a Bill of Rights in Northern Ireland' (2001) 52

Northern Ireland Legal Q. 269, at 279.

97 J. Nagel, `Masculinity and nationalism: gender and sexuality in the making of

nations' (1998) 21 Ethnic and Racial Studies 242, at 254. See, also, A. McClintock,

Imperial Leather: Race, Gender and Sexuality in the Colonial Context (1995).

98 J. Nagel, American Indian Ethnic Renewal: Red Power and the Resurgence of

Identity and Culture (1996) 193.

99 Nagel, op. cit., n. 97, p. 254.

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This cuts across the sectarian divide in Northern Ireland.

100

The nationalistic

desire of `opposing nationalisms'

101

to `conserve an idea of the nation'

102

has resulted in the suppression of any differences which contradict the

`imagined community'.

103

Walshe notes that in the Irish context, colonialism

and the rise of nationalism worked to silence sexual difference:

104

in Irish cultural discourse, silencing sexual difference became an imperative

for consolidating a post-colonial identity because of a supposed link between

homosexuality and enfeebled, `feminised' masculinity . . . therefore the post-

colonial culture cannot permit any public, ideological acknowledgement of the

actuality of the sexually `other' . . . For a nation `coming of age', the lesbian

and gay sensibility must be edited out.

105

According to Kitchin and Lysaght, the `still ``colonised''' Northern Ireland

did not escape these influences as colonialism and nationalism have worked

to create a patriarchal culture with the heterosexual family at the helm.

Further, religious discourse across the communal divide has sought to

`discipline sexual behaviour'

106

and given that such discourse is integral to

`communal identity' in Northern Ireland,

107

these ```national'' gender

norms'

108

are reproduced in `on-going nationalist and unionist ideology'.

109

It follows that there tends to be cross-community agreement on issues of

sexual morality. Take, for example, the law on abortion. The 1967 Abortion

Act which allows terminations in certain circumstances on the authorization

of two medical doctors, has never been extended to the region. Rather the

law, which is regulated by the Offences Against the Person Act 1861

110

and

262

100 As McGarry and O'Leary point out, unionism is a form of British nationalism (R.

Ward, ```It's not just Tea and Buns'': Women and Pro-Union Politics in Northern

Ireland' (2004) 6 Brit. J. of Politics and International Relations 494, at 502).

Seeking to defend the nation state and preserve the status quo, it is hostile to change

and thus envisages a patriarchal society with a `gendered understanding of

appropriate roles' (id., p. 504. See, also, pp. 502±3; C. Coulter, `Feminism and

nationalism in Ireland' in Rethinking Northern Ireland ± Culture, Ideology and

Colonialism, ed. D. Miller (1998) 164).

101 C. Bell, C. Campbell, and F. Ni AolaÂin, `Justice Discourses in Transition' (2004) 13

Social and Legal Studies 305, at 322.

102 Ward, op. cit., n. 100, p. 503.

103 B. Anderson, Imagined Communities: Reflections on the Origins and Spread of

Nationalism (1983). See S. Edge, `Representing gender and national identity' in

Miller, op. cit., n. 100, pp. 214±15.

104 E. Walshe, `Sexing the shamrock' (1996) 8 Crit. Survey 159, at 161. See R. Kitchin

and K. Lysaght, `Sexual Citizenship in Belfast, Northern Ireland' (2004) 11 Gender,

Place and Culture 83, at 90.

105 Kitchin and Lysaght, id.

106 id., p. 99.

107 Coulter, op. cit., n. 100, p. 174.

108 L. Smyth, `The cultural politics of sexuality and reproduction in Northern Ireland'

(2006) Sociology (forthcoming), quoted with the kind permission of the author.

109 Kitchin and Lysaght, op. cit., n. 104, pp. 85±6.

110 Amended by the Criminal Justice (Northern Ireland) Act 1945.

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case law,

111

is more restrictive allowing abortions to be legally carried out

only where there is a `real and serious' risk to the life of the mother,

including her physical and mental health. While opinions may not be as

universally anti-abortion as public discourse suggests,

112

the main unionist

and nationalist parties

113

remain opposed to any liberalization in the law.

114

Indeed, Smyth argues that both activist and official discourses on abortion in

Northern Ireland portray a universalist pro-life stance based upon `an

apparently shared ``Northern Irish'', moral, Christian culture'.

115

Most

significantly, one can see `cross-community' divisions between conserva-

tives and liberals where the former claim that the `distinctive cultural

values'

116

of the region give an over-whelming pro-life mandate. Smyth

concludes:

[t]hese debates over sexuality and reproduction point to a highly gendered

religious or moral form of cultural politics, which has served not to distinguish

Ulster from Ireland, as unionism is usually concerned with doing, but to

distinguish it from the rest of the UK.

117

In addition, domestic human rights institutions and organizations have not

engaged in the abortion debate. Indeed, in consultations over the content of

the proposed Bill of Rights, the NIHRC has avoided any critical engagement

with the issue. Fegan and Rebouche note that the Commission has taken a

neutral stance on abortion and, although it included a specific right to

reproductive healthcare in the draft Bill of Rights, has been careful to avoid

language which would appear to favour any liberalization in the law.

118

has been suggested that the climate of intimidation which discourages the

263

111 R. v. Bourne (1939) 1 K.B. 687.

112 Fegan and Rebouche note that `delving deeper into what is claimed as a ``vast

majority'' of anti-choice opinion may reveal an undercurrent of support for other

views': E. Fegan and R. Rebouche, `Northern Ireland's Abortion Law: The Morality

of Silence and the Censure of Agency' (2003) 11 Feminist Legal Studies 221, at

232±3.

113 The four main political parties in the North are the Democratic Unionist Party

(DUP), the more moderate Ulster Unionist Party (UUP), the nationalist Social

Democratic and Labour Party (SDLP), and the republican party, Sinn FeÂin.

114 In June 2000 a member of the DUP proposed a motion in the NI Assembly which

sought to prohibit any future motions to extend the 1967 Act to Northern Ireland.

An amendment, tabled by the Women's Coalition, to have the issue referred to the

Health, Social Services and Public Safety Committee was defeated and the motion

was passed by 47 votes to 17. By contrast, the secular loyalist party, the Progressive

Unionist Party (PUP) has taken a progressive stance on many social issues and,

indeed, was the only unionist party to support the extension of the 1967 Abortion

Act to Northern Ireland: see C. Mitchell and J.R. Tilley, `The Moral Minority:

Evangelical Protestants in Northern Ireland and Their Political Behaviour' (2004)

52 Political Studies 585, at 599.

115 Smyth, op. cit., n. 108.

116 id.

117 id.

118 Fegan and Rebouche, op. cit., n. 112, p. 244.

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public airing of pro-choice views in Northern Ireland

119

and the inevitable

`social contention' involved with a public dialogue on the issue, contributed

to the neutral strategy of the NIHRC.

120

In addition, that the NIHRC has

never had support across the communal divide, being viewed with suspicion

by unionist parties due to its perceived pro-nationalist/republican bias,

121

brings additional challenges when inhabiting discursive space. This is

particularly so when the issue, like that of abortion, is viewed as a question

of morality and is thus embedded within religious discourse where any

perceived liberalization or pro-choice positioning would spark criticism

across the communal divide. In relation to other human rights organizations,

Bell and Keenan note the particular difficulties NGOs face in enforcing

human rights in a post-conflict transitional environment.

122

In particular,

they point to the difficulties in securing funding for `oppositional work'

123

the context of a devolved NI Assembly (when in operation) as opposed to the

direct rule situation, because funders do not want to be seen to undermine the

newly established devolved government, particularly when its position

remains tenuous.

In relation to gay and lesbian politics, the literature shows that religious,

post-colonial, and political dialogue intersects with sectarianism to compound

the impact of `common heteronormative discourse'.

124

The result has been to

erase gay and lesbian sexuality from the dominant culture. No mainstream

political party in Northern Ireland, neither unionist or nationalist, has actively

sought to address gay and lesbian politics and certainly the only sustained

campaign, from the Democratic Unionist Party (DUP),

125

has been one of

anti-gay rhetoric. It is well known that the DUP is vehemently opposed to

homosexuality and, indeed, ran a campaign entitled `Save Ulster from

Sodomy' in an attempt to prevent the extension of the 1967 Homosexual Law

Reform Act to Northern Ireland.

126

Conrad notes, however, that even when

264

119 id.

120 id.

121 S. Livingstone and R. Murray, Evaluating the Effectiveness of National Human

Rights Institutions: The Northern Ireland Human Rights Commission with

Comparisons from South Africa (2005).

122 C. Bell and J. Keenan, `Human Rights Nongovernmental Organizations and the

Problems of Transition' (2004) 26 Human Rights Q. 330.

123 id., p. 365.

124 Kitchin and Lysaght, op. cit., n. 42, p. 493.

125 The DUP is the anti-Agreement Unionist party led by Reverend Ian Paisley, also

leader of the evangelical Free Presbyterian Church. After the 2003 Assembly

elections, the DUP surpassed the UUP as the largest party in the province gaining 30

seats (up from 22).

126 Homosexual activity was eventually decriminalized in Northern Ireland by the

passing of the Homosexual Offences (Northern Ireland) Order 1982 which followed

the ruling of the European Court of Human Rights in Dudgeon v. United Kingdom

(1981) 4 EHRR 149 which held that the prohibition on male homosexual activity

breached Article 8 of the European Convention on Human Rights.

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political parties express a more tolerant view of homosexuality, they tend to

resist:

actively pursuing rights for queer people ± perhaps out of fear of alienating the

more conservative members of their constituencies, but also perhaps because

queers are not seen to contribute to the sectarian cause.

127

In addition, paramilitary organizations often `police their local communities

for what it views as antisocial behaviour, which often includes sexual

dissidence.'

128

Viewed against the levels of `unchallenged homophobia'

129

in Northern Ireland and alongside the historic lack of visible gay space,

130

the general reasons outlined for supporting assimilationist strategies in gay

and lesbian politics become particularly acute. In addition, one can point to

culturally-specific justifications.

2. Breaking down the two-communities framework

Pervasive reliance on the `two community' descriptor of Northern Ireland de-

emphasizes other references of identity such as race, class, gender, and sexual

orientation. However, displacing the binarism of identity politics in Northern

Ireland is not an easy task as it pervades `official discourse'

131

and the terms

of political negotiation. Indeed, Conrad notes that `official policy has

accommodated to the sectarian divide' and draws attention to the fact that

`politics has remained polarized around community loyalties, placing severe

limitations on the development of class-based or gender-based loyalties'.

132

Attempting to conceive a new political dialogue, Nic Craith points to Fraser's

`status model of recognition' as a useful framework as it goes beyond the

narrow focus on `group specific identity'.

133

The objective becomes `parity of

participation' as opposed to `parity of esteem in social life' and:

265

127 K. Conrad, `Women Troubles, Queer Troubles: Gender, Sexuality, and the Politics

of Selfhood in the Construction of the Northern Irish State' in Reclaiming Gender:

Transgressive Identities in Modern Ireland, eds M. Cohen and N.J. Curtin (1999)

55. See, also, Kitchin and Lysaght, op. cit., n. 42, p. 493.

128 Kitchin and Lysaght, id.

129 Institute for Conflict Research, N. Jarman and A. Tennant, An Acceptable

Prejudice? Homophobic Violence and Harassment in Northern Ireland (2003) 12.

130

Kitchin and Lysaght, op. cit., n. 42, p. 503. The Northern Ireland Life and Times Survey

reported in 2003 that in response to a question of classification on sexual orientation, 1

per cent of respondents identified themselves as gay or lesbian; 97 per cent identified

themselves as heterosexual or straight; 0 per cent as bisexual, and approximately 2 per

cent did not answer the question. See .

131 Nic Craith, op. cit., n. 56, p. 17. Noting the Anglo-Irish Agreement talked about

accommodating the `rights and identities of the two traditions', Nic Craith observes

that the Good Friday Agreement also uses Britishness and Irishness as legitimate

references of identity for people in Northern Ireland (p. 19).

132 Conrad, op. cit., n. 127, pp. 54±5 quoting R. Sales, Women Divided: Gender,

Religion, and Politics in Northern Ireland (1997) 202.

133 Nic Craith, op. cit., n. 56, p. 199.

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[i]n contrast with the `identity model' as promoted in the GFA [Good Friday

Agreement], the `status model' interprets the concept of justice as having

dimensions of both recognition and distribution. It does not confine itself to

the effects of institutionalised norms on the status of individuals but also

reviews the allocation of resources to them.

134

While this may present an opportunity to open up a new political discourse in

Northern Ireland, Nic Craith concedes that the dominance of the national

identity dialogue makes it an impossible project to implement in the short

term.

135

This is an important observation which indicates that breaking down

the rigidity of group identities is complicated by the politics of Northern

Ireland and the entrenchment of the binary expression of cultural belonging.

As this limited expression of the social and cultural landscape continues to

carry political currency, there may be little opportunity to move beyond the

constraining forces of this paradigm. Indeed, the zero-sum mind-set of

political and social actors in Northern Ireland may mean that any reduction in

the significance of collective cultural identification could be viewed as a

victory for the `other side' at the expense of a loss for one's collective. Thus,

because of the historic and contemporary weight placed upon group specifi-

city, the assumptive location of individuals within polarized communities may

not be open to challenge by a direct attempt to deconstruct group boundaries.

If the hegemonic expression of identity politics cannot be removed, the

question then becomes how to displace its two-dimensional representation.

Against this background, it seems that one must find a way to explore the

intersection between communal and other identity markers, an exploration

which may reduce the relevance of the two-communities framework.

136

Thus, rather than challenging `community' boundaries by direct means, the

focus becomes minority, or otherwise unarticulated, expressions of identity

and while Fraser's politics of recognition may have little immediate effect at

a macro-level to complicate the allocation of `community-based loyalties' in

Northern Ireland, at a micro-level, one can use this model to politicize the

existence of minority identities, to quantify the cost of their `misrecognition',

and to devise remedies.

137

266

134 id.

135 id., p. 200.

136 id., p 20.

137 While the strategic use of identity markers may appear to contradict Fraser's politics

of recognition which attempts to go beyond the collective identity paradigm, the two

can be reconciled. Fraser's status model of recognition means that remedies for

misrecognition are not viewed as a question of identity per se, but of `establishing

the misrecognized party as a full member of society, capable of participating on a

par with the rest': Fraser, op. cit., n. 39, p. 113. Thus the remedy, while one of

recognition, is about `overcoming subordination' and not `valorizing group identity'

(p. 114) which allows one to use references of identity within recognition claims in

non-reifying terms. Under this model, both assimilationist and deconstructionist

agendas can remedy misrecognition without being seen to represent the universal

characterization of those within the maligned group.

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However, the assertion of new forms of identity, such as gender, ethnicity,

sexual orientation, to displace the hegemony of the `two-communities

framework' is not without criticism. Speaking of the politics of hybridiza-

tion, defined by Rowe and Schelling as `the ways in which forms become

separated from existing practices and recombine with new forms in new

practices',

138

Nic Craith notes that `[a]lthough such a process serves to

deconstruct the rigidity of the larger cultural groupings, new constructs can

become similarly fossilised.'

139

By seeking to attach other forms of identity

to subjects within traditional community-based localities, the premise for

many is still misplaced in that, notwithstanding their multi-layered

application, one remains reliant on fixed characterizations of identity.

140

However, in this context, recognition claims are being used strategically

141

in an attempt to displace the two-traditions framework which may not be

permeable by direct attack but by speaking the language understood in

Northern Ireland, that is, through the medium of identity/recognition claims.

Thus, working within the framework of the politics of recognition, one must

complicate the `two-traditions paradigm' by adding other layers of identity

components. This involves the use of indicators of identity, such as sexual

orientation, as opposed to an attempt to remove references of identity to a

point where the very nature of their specificity is nullified. Thus, although

sounding a note of caution about hybridization generally and not wishing to

overstate the potential of this strategy, Quinn concludes that:

... identities based on sexual oppression can counter-weigh religious or

cultural grievances and create agendas which compete with ethnic identifica-

tions. And as a result it may be possible to evolve new narratives for and about

life in Northern Ireland.

142

In Northern Ireland, therefore, making visible other references of identity

challenges the immutability of the two-traditions model and helps to create a

`mosaic of identities'

143

from which commonalities can flourish across

historically entrenched polarities and questions can be raised about the

rigidity of individual identity markers within the now more complex social

and legal subject. In practical terms, this can encourage the development of

`cross-cutting alliances'

144

which can be a powerful vehicle for change.

267

138 W. Rowe and V. Schelling, Memory and Modernity: popular culture in Latin

America (1991) 231, quoted in J. Pieterse, `Globalisation as Hybridization' in

Global Modernities, eds. M. Featherstone et al. (1995) 49.

139 Nic Craith, op. cit., n. 56, p. 197.

140 id., p. 199.

141 Fraser, op. cit., n. 38, pp. 80±1.

142 V. Quinn, `On the Borders of Allegiance: Identity Politics in Ulster' in De-Centring

Sexualities: Politics and representations beyond the metropolis, eds. R. Phillips et

al. (2000) 272.

143 Nic Craith, op. cit., n. 56, p. 196.

144 M. Beirne, `Social and Economic Rights as Agents for Change' in Human Rights in

the Community: Rights as Agents for Change, ed. C. Harvey (2005) 50.

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Indeed, it was the force of the `rainbow coalitions' of marginalized groups in

Northern Ireland that helped to centralize human rights and equality in the

political settlement.

145

However, if the purpose is to multi-layer identity in Northern Ireland,

`other' identity components must become visible. This carries particular

significance in the context of sexual orientation which can be a hidden form

of subjectivity. Indeed, there has been an increase in homophobic harassment

and violence in Northern Ireland with at least two murders in Belfast

146

and

120 homophobic incidents being recorded by the Police Service of Northern

Ireland between July 2000 and December 2002.

147

A recent report noted that:

[h]omophobia and discrimination against LGB people is still regarded as

`normal' and justifiable in Northern Ireland, for many it is still a `respectable

and acceptable prejudice'.

148

Further, in one local study, Kitchin and Lysaght found that individuals who

were `identifiable as gay through their dress, gait, and so on, reported the

highest levels of homophobic harassment' which led the authors to note the

practice of self-regulation where sexual dissidents selectively revealed their

sexual identity.

149

Being gay or lesbian must become an accepted form of

being and, as relational expression is the most visible form of sexual

orientation identification, civil partnerships becomes a strategy which

warrants serious consideration.

3. Exposing cracks in the moral conservatism of political dialogue

The debates around civil partnerships also show some movement in the

seemingly `universal' moral conservatism of Northern Ireland and, in

particular, how it maps onto the political divide. While no political party has

been prepared to take the initiative to address sexual citizenship, the

extension of civil partnerships to the region within a United Kingdom-wide

Westminster Bill forced a reaction from the mainstream political parties.

150

268

145 Bell et al., op. cit., n. 101, p. 322; Beirne, id., pp. 50±51.

146 Ian Flanagan was found murdered in September 2002 and Aaron McCauley in

December 2002.

147 Jarman and Tennant, op. cit., n. 129, pp. 21±30. The Criminal Justice (No. 2) (NI)

Order 2004 now imposes a statutory requirement on judges to treat racial and

religious aggravation and hatred of sexual orientation or disability as an aggravating

factor when sentencing.

148 id., p. 10. See, also, Kitchen and Lysaght, op. cit., n. 42.

149 Kitchin and Lysaght, id., p. 494.

150 One should not underestimate the opportunity presented by the Civil Partnership

Act to make legislative progress on same-sex partnerships in Northern Ireland at a

time when the local Assembly is suspended, thus making less complicated the

absorption of Northern Ireland provisions within a United Kingdom-wide strategy.

Of course, if the Assembly is restored, attempts may be made to revisit issues

arising from the Act which are within its legislative competence. However, the

withdrawal of the right to register a same-sex partnership is a different conversation

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The DUP, as expected, took a very strong line.

151

Citing the lack of support

for the scheme in Northern Ireland

152

and the distinctive cultural and moral

values of people within this jurisdiction, they made several unsuccessful

attempts to prevent the Act's extension to the region without the approval of

the local Assembly. The argument that the commencement of the provisions

relating to Northern Ireland be delayed to allow the devolved administration,

if and when restored, to decide upon the matter was dubbed `pick-and-mix

Unionism',

153

particularly as during the suspension of the Assembly other

legislation had been passed for Northern Ireland either by the Order in

Council procedure or by an Act of Parliament without similar arguments

being made.

154

As such, these moves were seen to be less about the

constitutional implications of adopting a United Kingdom-wide strategy and

more to do with fundamental opposition to the legislation. Despite the

DUP's assertion that `both sides' in Northern Ireland were united in

opposition to the Bill `because they have a high view of Christian ethics and,

in particular, marriage',

155

this did not prove to be the case across the

political spectrum. The DUP and UUP MPs voted against the Bill,

156

the

SDLP voted in favour of it,

157

and while Sinn FeÂindonot take their seats at

Westminster and therefore did not vote, party policy supports civil partner-

ships and even same-sex marriage.

158

This demonstrates an interesting

269

from the question of whether to introduce it in the first place and thus the inclusion

of Northern Ireland within the Westminster legislation is particularly significant, a

point which I do not think was lost on those vehemently opposed to this strategy.

151 The second reading of the Bill was due to take place on 16 September 2004 but was

rescheduled after Ian Paisley, leader of the DUP, asked the Prime Minister to delay

the vote because all DUP MPs would be involved in talks aimed at restoring the

power-sharing Assembly (H. McDonald, `Blair delays marriage bill to give Paisley

party chance to vote' Guardian,19September 2004).

152 Responses to the OLR Consultation Paper revealed that only 14 per cent of

respondents supported the proposal to extend the Bill to Northern Ireland. However,

there were only 462 responses to the consultation and the government revealed that

it subsequently received 400 letters of support for the Bill from Northern Ireland

(425 H.C. Debs. col. 176 (12 October 2004)). In addition, the majority of organiza-

tions in Northern Ireland that responded to the consultation, such as the Northern

Ireland Human Rights Commission, the Equality Commission for Northern Ireland,

and the Northern Ireland Committee of the Irish Congress of Trade Unions,

supported the Bill.

153 H.C. Standing Committee D, col. 218 (19 October 2004).

154 id., col. 408.

155 H.C. Standing Committee D, col. 213 (19 October 2004).

156 Lady Herman, a pro-Agreement UUP MP, abstained, a fact highlighted in a

campaign document published by DUP candidate, Peter Weir, in the run-up to the

recent election: .

157 The Women's Coalition, the Alliance party, the Green party, and the Progressive

Unionist party also support civil partnerships.

158 See `A Sinn FeÂinResponse to ``Making a Bill of Rights for Northern Ireland'' ± the

Northern Ireland Human Rights Commission consultation document' (December

2001).

ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School

divergence of opinion where the two main unionist parties opposed the Act,

while the two main nationalist parties supported it, thus appearing to map the

emergence of more progressive attitudes onto the communal divide. It

suggests a move away from the position where all main political parties in

Northern Ireland unite in opposing progressive attitudes and runs counter to

the argument that `[s]tate regulation of sexual morality . . . would appear to

be one of the few areas where cross-community agreement can occur.'

159

Thus, one can see schisms in the perceived unanimity across the communal

divide on issues relating to sexual morality. While both main nationalist and

unionist parties oppose any liberalization of the law on abortion, the former

support full citizenship rights for gays and lesbians and the latter oppose it.

Interestingly, while the NIHRC has not taken any position on the question of

abortion, it supports civil partnerships.

160

There are, of course, differences

between these issues which help to explain these divergences.

The abortion discourse is couched in overtly moral terms.

161

As opposed

to being a question surrounding women's rights to reproductive choice,

162

is discussed in `pseudo-religious terms' of `preserving foetal life'.

163

Fegan

and Rebouche say:

the framing of the abortion debate in terms of balancing rights, those of

women seeking abortions and those of so-called `unborn children', contorts the

central issue.

164

By contrast, gay and lesbian rights can be placed squarely within the equality

agenda which, in the wake of the Good Friday Agreement (GFA), has

particular importance in Northern Ireland's political landscape. Due to the

historical circumstances of the conflict which, according to the prevailing

view was `substantially triggered by the pervasive discrimination and dis-

enfranchisement experienced by the minority Catholic community',

165

Northern Ireland has a long pedigree in using rights-based strategies to

tackle discrimination and inequality. Anti-discrimination legislation on the

grounds of religious belief and/or political opinion has been in place since

1976 and the concept of `mainstreaming' equality, that is, making equality

issues part of government thinking in policy-making, has been on the agenda

since the early 1990s.

166

High levels of social and economic deprivation

were recognized as contributory factors to the sectarian conflict and thus the

270

159 Smyth, op. cit., n. 108.

160 NIHRC, Making a Bill of Rights for Northern Ireland ± A Consultation by the

Northern Ireland Human Rights Commission (2001) 60.

161 Fegan and Rebouche, op. cit., n. 112, p. 222.

162 id., p. 223.

163 id., p. 245.

164 id., p. 231.

165 G. McKeever and F. Ni AolaÂin, `Thinking Globally, Acting Locally: Enforcing

Socio-Economic Rights in Northern Ireland' (2004) 2 European Human Rights Law

Rev. 158, at 166.

166 id., pp. 167±71.

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negotiated settlement involves rights-based strategies to tackle the `root

causes of socio-economic deprivations'.

167

In particular, section 75 of the

Northern Ireland Act 1998 places public authorities in Northern Ireland

under a statutory duty when carrying out their functions to `have due regard'

to the need to `promote equality of opportunity' between persons of different

religious belief, political opinion, racial group, age, marital status or sexual

orientation; between men and women generally; between persons with a

disability and persons without; and between persons with dependants and

persons without.

That sexual orientation has been included as a section 75 category means

that pro-Agreement parties who negotiated and bought into this framework

will find it more difficult not to support gay and lesbian rights. This may help

to explain political attitude across the communal divide as nationalist/

republican parties fully embraced the GFA, while the DUP remain anti-

Agreement and the UUP combines both pro- and anti-Agreement opinion.

Further, it is accepted that nationalists have always been more comfortable

with the language of human rights and equality

168

and, indeed, have been

engaging with this discourse since the civil rights campaign in the 1960s

sought to remove discrimination between Catholics and Protestants. Thus,

while no party has ever taken the initiative to promote gay and lesbian rights

or to address discrimination on the basis of sexual orientation, when it comes

to taking a reactive stance on a policy generated elsewhere, the domestic

landscape encourages a more `progressive' response from the political actors

who have helped to create this liberal framework of equality, human rights,

and non-discrimination. This may also help to explain the more ambiguous

approach of the UUP on sexual politics as its members become `increasingly

divided over attitudes to pluralism'.

169

Mitchell and Tilley note:

[t]he wing of the party that supported the Agreement, which could almost be

described as liberal and pluralist, stresses an attachment to UK citizenship that

is multicultural and interested in the promotion of civil liberties.

170

There is evidence to suggest that while the DUP remains hardline on con-

stitutional and social policy issues, the more moderate UUP has lost electoral

ground due to the `importance of moral conservatism' in influencing party

choice.

171

Mitchell and Tilley point to the moral connotations of political

issues, such as the early prisoner releases secured by the GFA, which the

DUP has steadfastly opposed while the UUP is seen to have lost `the strength

of its convictions'.

172

It is, however, the `consistently conservative moral

stance' on social issues which, according to Mitchell and Tilley, clearly

271

167 id., pp. 159±60.

168 Livingstone and Murray, op. cit., n. 121.

169 Mitchell and Tilley, op. cit., n. 114, p. 599.

170 id.

171 id., p. 597.

172 id., p. 598.

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distinguishes the DUP from other unionist parties. Thus, while the UUP

remains conservative and its MPs voted against civil partnerships,

173

there

are signs of liberalization

174

within the party that `stand in stark contrast to

the continuity of the DUP's message'.

175

Indeed, on civil partnerships, their

opposition is certainly less militant than that of the DUP whose language of

opposition has not changed from the days of the `Save Ulster from Sodomy'

campaign, being expressed in overtly puritan terms with many biblical

references cited in objection to homosexuality.

176

When speculation

mounted that Stephen King, adviser to former UUP leader David Trimble,

married his gay partner in Canada, a member of the DUP was reported to

have said that he should no longer work for the party on the basis that `most

people in Northern Ireland find homosexual relationships offensive and

indeed obnoxious'.

177

While some elements within the UUP espouse similar

rhetoric,

178

party policy seems to have taken a more tempered line. A UUP

representative was present at a recent meeting organized by the Coalition on

Sexual Orientation (CoSO) on gay and lesbian rights

179

although it was

reported that they were the only party in attendance not to accept that

`commitment to equality was a matter of party policy and not individual

conscience'.

180

Thus, in Northern Ireland, the liberal framework of equality, human

rights, and non-discrimination is gradually helping to deliver practical

change.

181

Kitchin and Lysaght argue that the new political climate of the

Peace Process has led to the redefinition of sexual citizenship in Northern

272

173 With one abstention.

174 Mitchell and Tilley, op. cit., n. 114, p. 599.

175 id.

176 Indeed, a DUP councillor recently stated that hurricane Katrina was sent by God to

punish the New Orleans gay community for holding a gay pride festival as a

warning to nations `where such wickedness is increasingly promoted and practised'

(A. Chrisafis `Katrina Sent by God to Punish New Orleans Gays' Guardian,19

November 2005 ).

177 A. Chrisafis, `DUP hits at Trimble adviser's gay marriage' Guardian,1February

2005. Indeed, the DUP recently suspended one of its members following allegations

that he engaged in homosexual activity.

178 Ulster peer Lord Maginnis, former Ulster Unionist Party MP, spoke against the Civil

Partnerships Bill in the House of Lords, stating that it had been introduced due to the

efforts of a `vocal minority in society' who `want to indulge in a relationship which

most likely involves unnatural sexual practices' (662 H.L. Debs., cols. 1370±1 (24

June 2004)).

179 The DUP was the only party not to send a representative.

180 B. McDaid and C. Weir, `Query over why DUP not present at gay rights meeting'

Belfast Telegraph,4May 2005.

181 For an assessment of the potential impact of the equality discourse on the position of

gays and lesbians, see M.A. Livingston, `Out of the ``Troubles'' and into Rights:

Protection for Gays, Lesbians, and Bisexuals in Northern Ireland through Equality

Legislation in the Belfast Agreement' (2004) 27 Fordham International Law J.

1207.

ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School

Ireland in four main ways.

182

First, it has resulted in the growth of

organizations in the voluntary sector dealing with gay issues; secondly, new

equality legislation has addressed the need for protection for individuals who

are GLBT; thirdly, there have been significant changes in the nature of

policing homophobic incidents and finally, the growth of gay (and mixed)

social opportunities and venues.

183

In terms of the equality legislation, the

inclusion of sexual orientation within section 75 was the first statutory

recognition in Northern Ireland of the need to target discrimination based

upon sexual orientation.

184

That the impact of policies on designated groups

must now be considered under section 75, coupled with an expansion in the

consultation process involved in law reform and legal policy debates during

which group representatives are specifically invited to participate,

185

allows,

previously unarticulated, issues to infuse policy development.

186

Prior to

this, Beirne observes that sexual orientation was a largely hidden issue in the

region.

187

That it was placed within the emerging equality discourse is due,

in part, to the work of the umbrella group the Coalition on Sexual

Orientation and thus it seems that:

apreviously`invisible' and almost entirely disr egarded community is

developing its own voice and creating the mechanism by which its voice (or

indeed its many voices) will be increasingly influential.

188

Further, against the language of equality inherent in the political settlement,

the rhetoric of the DUP on homosexuality is becoming marginalized in

public discourse. Indeed, when Ian Paisley's Free Presbyterian Church,

alongside a coalition of Christian groups, sought to ban the 2005 Gay Pride

273

182 Kitchin and Lysaght, op. cit., n. 104, p. 94.

183 id.

184 B. Dickson, `New Human Rights Protections in Northern Ireland' (1999) 3

European Law Rev. 3. Section 75 involves mainstreaming equality, in other words,

to infuse the process of decision-making with principles of equality as opposed to

relying on reactive anti-discrimination legislation. Although it is non-justiciable in

that individuals cannot take legal action for non-compliance, Dickson notes its

importance in `[concentrating] the mind': B. Dickson, `Protection of Human Rights

± Lessons from Northern Ireland' (2000) 3 European Human Rights Law Rev. 213,

at 223.

185 See Schedule 9, paras. 4(2)(a)-(b); 5; and 9(2), Northern Ireland Act 1998.

186 E. Breitenbach, Researching Lesbian, Gay, Bisexual and Transgender Issues in

Northern Ireland (2004) 2. However, while s. 75 may carry the potential for the

development of policies which are sensitive to the needs of gays and lesbians, the

lack of information on sexual orientation may nullify its immediate effect. See

Equality Commission for Northern Ireland, Report on the Implementation of the

Section 75 Statutory Duties: 1 April 2002 ±31 March 2003 (2004) para. 5.1.33. On a

positive note, however, formalizing the need for public authorities to give `due

regard' to sexual orientation when developing policy has, by itself, had a positive

impact in raising the profile of these issues, allowing them to become more visible

and initiating a discussion as to why they are not.

187 Beirne, op. cit., n. 144, p. 52.

188 id.

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Parade in Belfast citing the need to protect children from `this perverted

form of sexuality, in your face with attitude',

189

both media and political

response generally condemned this opposition. According to the SDLP:

Belfast's future has to be as an open, prosperous and cosmopolitan city

[where] everyone feels welcome and certainly the gay pride parade

complements this image. Unfortunately there is still a hardcore of bigots

and begrudgers in parts of Northern Ireland who still find this event

offensive.

190

The matter was passed to the Parades Commission, an independent quasi-

judicial body set up in 1997 to adjudicate on contentious parades in Northern

Ireland (normally of the sectarian kind) who ruled to let the parade go ahead

without restriction.

However, while the equality framework has created the opportunity to

`destabilise hegemonic moral conservatism',

191

movement on gay and

lesbian rights should be seen as a by-product of the equality agenda rather

than as `a particular commitment to sexual citizenship'.

192

Indeed, Bell et al.

make the point that the institutional reform brought about by the GFA was

`easier to present in ``good practice'' terms rather than ``concessions to

nationalists'' the more it operated to benefit a broader range of com-

munities'.

193

In the absence of the equality agenda, therefore, it is by no

means clear that sexual citizenship would feature in political dialogue and

thus one should make the most of these opportunities to politicize gay and

lesbian marginalization. The same can be said for civil partnerships. The

policy was generated elsewhere and thus politicians in Northern Ireland

simply had to react rather than take the initiative. Further, the backdrop of the

equality framework meant that the issue was placed within a liberal view of

sexual citizenship.

194

This has helped to shape the political response and has

allowed cracks in the alleged universal moral conservatism to emerge. By

contrast, taking Northern Ireland out of the civil partnerships scheme would

have had serious repercussions. Indeed, the danger of an assimilationist

strategy of this kind being hijacked by conservative forces to entrench current

norms is complicated in the context of Northern Ireland where the reverse

may actually be the case. Rejecting the extension of civil partnerships to the

region would give force to the myth, used in the abortion debates, that

Northern Ireland is different. Rather than initiating a more deconstructive

agenda, it would play into the hands of the moral conservatives and reinforce

the mantra of the `distinctive cultural values'

195

of the region.

274

189 S. McKay, `More right than most to walk Queen's highway' Irish News,19July

2005.

190 Dr. A. McDonnell, SDLP Press Release, 28 June 2005.

191 Kitchin and Lysaght, op. cit., n. 104, p. 99.

192 id., p. 95.

193 Bell et al., op. cit., n. 101, p. 322.

194 See Kitchin and Lysaght, op. cit., n. 104, p. 84.

195 Smyth, op. cit., n. 108.

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In addition, the rights-based agenda in Northern Ireland may also provide

the tools to access more deconstructive questions and tackle the root causes

of structural inequality. Indeed, s. 75 in promoting equality of opportunity

for all is an `important tool for change'.

196

Even further, it has been argued

that this statutory equality duty could be used to `codify access to socio-

economic rights'

197

by including the duty to promote equality on the grounds

of socio-economic status. While it is outside the scope of this paper to

discuss this in any detail, focusing on socio-economic deprivations may have

more potential to destabilize the norm than seeking to use gay and lesbian

politics as the vehicle for change. Indeed, Beirne argues that the promotion

and protection of socio-economic rights can force change because, amongst

other reasons, it will alter people's thinking about `power arrangements in

society'

198

and thus carry potential for the redistribution of economic

power.

199

CONCLUSION

Using Fraser's status model of recognition to politicize the existence of

minority identities, a number of general arguments have been made in

support of the assimilationist strategy of the Civil Partnership Act. A

deconstructionist agenda is more difficult to achieve, and it is by no means

clear that gay and lesbian politics can be employed to achieve such

wholescale change. To think otherwise is to underestimate the power of the

existing devaluation of gay and lesbian politics. Against the potential

paralysis of holding out for something more, continuing to withhold legally

recognized partnership status from same-sex relationships reinforces

heteronormative dominance. In terms of family law policy, it has also been

argued that the Act may help to create the conditions for the development of

more disruptive theories of family obligations.

In the context of Northern Ireland, the specificity of the cultural landscape

provides additional reasons for supporting this strategy. There remains

political currency in the `two-traditions paradigm', which means that public

discourse may remain locked in the specificity of identity frameworks. As

such, it is not helpful at this point to seek to deconstruct characterizations of

identity in favour of a fluid concept of being disconnected from `selected or

inherited traits that define people or communities as certain kinds of

individuals or groups'.

200

Thus, in terms of gay and lesbian politics, the

assimilation/anti-assimilation question is shaped by the sectarian binarism of

275

196 Beirne, op. cit., n. 144, p. 51.

197 McKeever and Ni AolaÂin, op. cit., n. 165, p. 170.

198 Beirne, op. cit., n. 144, p. 46.

199 id.

200 Nic Craith, op. cit., n. 91, p. 5.

ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School

Northern politics

201

and, in this respect, it is submitted that anti-assimila-

tionist concerns must be relegated in favour of an assimilationist approach in

order to redress the historical reductionism in the politics of identity in

Northern Ireland.

Further, one can see the advantages of using the equality framework to

politicize gay and lesbian rights in Northern Ireland. This has helped to

create a more `progressive' political dialogue where anti-gay rhetoric is

becoming marginalized. It is within this agenda that the Civil Partnership

Act must be viewed and its extension to the region to be supported, not least

for allowing cracks in the seemingly universal moral conservatism of

political dialogue to emerge. By contrast, rejecting the inclusion of Northern

Ireland within this scheme would reinforce the suppression of `progressive'

issues and the claims surrounding the `distinctive cultural values'

202

of the

region.

276

201 Conrad, op. cit., n. 127, p. 55.

202 Smyth, op. cit., n. 108.

ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School

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