Pride in London, Fierté in Paris & joy in San Francisco: taking stock of law for LGBT

30 June 2013 by

gaykemptownPride is celebrated this weekend in London, New York and – most especially – San Francisco where, even as I write, same sex couples are being married after the ruling of the US Supreme Court on Proposition 8. Appropriately, Kris Perry, one of the litigants before the Court was the first to be wed. Matthew Flinn has already posted on this and the Court decision on the Defence of Marriage Act.

It is irresistible to take stock at moments such as these.

France is celebrating its first same sex marriages, Uruguay and New Zealand are close on its tail and the Bill to effect the same in England and Wales should confront its final hurdle on 15 July.

While the Paris, Marche des Fiertes will attract hundreds of thousands of people this weekend and Marseilles hosts Euro Pride a few weeks later, it is interesting to muse why it is that same sex marriage has stirred up such titanic passions on one side of La Manche rather than the other.

In the abstract it is not obvious why such a reform was so difficult in France, the home of universal human rights as opposed to Britain the originator of section 28.

Opinion polls show that support for same sex marriage in France is actually somewhat higher than in the UK. What is controversial in France is that the legislation also introduced adoption by same sex couples. This had already been the subject of an unsuccessful challenge in the ECHR in Gas and Dubois v France (2012) (application no 25951/07).

In England and Wales, by contrast and unusually by international standards, adoption by same sex couples had been legalized in the Adoption and Children Act 2002 (Belgium – one of the pioneers of same sex marriage – did not legalise adoption by same sex couples for some years after gay marriage). The debate at that time was fierce but unlike in France, it did not unite the right but divided it. It left a scar and within two years, the then leader of the Conservative Party, Michael Howard, in his “British Dream” speech, lent his support to the recognition of same sex partnerships. It is interesting to think how much his close political ally, one David Cameron, played a part in that.

The consequence was that the UK enacted Civil Partnerships based on the model of Vermont which gave equivalent legal rights to registered same sex couples as those who were married (this was a more far-reaching scheme than the French pacte civil de solidarité or PACS but excluded heterosexuals).

The election of the Socialist Francois Hollande in France and David Cameron at the head of a centre right coalition in the UK both saw commitments to enact same sex marriage. In England and Wales, the fact that the Civil Partnership Act was so far-reaching has meant that what was being proposed was largely symbolic. By contrast in France, the national assembly was actually reshaping family law.

High politics have also played their part. Whereas in France the opposition used the legislation as an opportunity to undermine the new President, in the UK the principal opposition parties (Labour and the Nationalists in Scotland and Wales) were supportive and constructive with the opposition being confined to a rump on the right. It is arguable that, as with The Netherlands, the presence of Liberals in government was significant (gay marriage was enacted in The Netherlands by a Purple Coalition of two Liberal parties and Labour). However, those close to all the relevant players would indicate that Theresa May played a decisive role in pressing ahead with the change – determined to demonstrate that the Conservatives have socially liberal credentials and banish the “nasty party” stain left by section 28.

The legal profession has not been left untouched by those changes. One could only guess what Lord Hailsham would have made of the appointment this year of Sir Terence Etherton as Chancellor of the High Court and the elevation last month of Sir Adrian Fulford to the Court of Appeal.

It is only approximately twenty years since the formation of the Lesbian and Gay Lawyers Association and the Bar Lesbian and Gay Group

There were very few lesbian and gay firms in those days. Finding a sympathetic solicitor for a client could be tricky. Now lesbian led firms like Goodman Ray bestride the City and dominate the law reports. At the Bar, the recent election of Philip Marshall QC as joint head of 1 King’s Bench Walk only emphasises how lesbians and gay men are now part of the leadership of the profession.

There are however some clouds on the horizon. Proposals to remove the right of recipients of criminal legal aid to choose their representatives threatens to undermine some of what has been achieved (see the post by Jim Duffy). If you are a lesbian or gay person in trouble, wouldn’t you want to know that the solicitor you were turning to for advice was sympathetic?

The other problem is proposed restrictions on bringing proceedings such as the recently suggested changes on judicial review and the introduction of disproportionate fees in Employment Tribunals (discussed by Lauren Godfrey here) that are likely to be a harbinger of such charges elsewhere in the Courts and Tribunal system. LGBT may find that whilst their rights are not enacted in law they may struggle increasingly to exercise them.

Let’s just hope it doesn’t rain on the parade in London, San Francisco or Paris.

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  1. Rose, as a lawyer who has transitioned herself, I partly disagree.

    The issue is that a lot of the typical problems facing trans people, access to housing, employment and family issues particularly, are in areas of law increasingly ineligible for legal aid.

    However, it’s a damning indictment that even within LGBT politics, trans people are seen as “less equal” and far more likely than LGB people to be disadvantaged on the job market from the outset. It’s about gender identity, not sexuality which is far easier to hide.

    A gay or lesbian person may not be obviously gay, but transitioning means either outing yourself to your existing employer, or seeking alternative employment in an economic slump. It also means likely ending up as the respondent on a divorce petition.

    There is also NO visible representation of trans people on either the Law Society, or the myriad of LGB law associations, partly because lawyers who have either transitioned are terrified of losing their jobs if they come out, or have simply come up against prejudice whilst even trying to get on the legal career ladder. I had some horrendous experiences in the course of qualifying, mainly because it was a relatively small firm in a provincial town. Thankfully that’s not the case where I work now!

    The Trans Issues Law Group was recently set up by solicitors and barristers who are either trans or who have an interest in the law and trans issues. We are slowly gaining support within the legal community and we can provide links to the Bar Pro Bono Group and LawWorks who can assist with representation on matters.

    1. John Allman says:

      @ Rose

      You are not the first to complain that people who are transgendered face problems. I was wondering how those problems compared with the non-acceptance reported by people who happen to be, or who want to become, transoriented. On the face of it, the two comparable groups experience similar non-acceptance, for identical reasons.

      As you know, transgendered people are (for example) male, but want to be accepted in future as female from a certain date. In some cases, trangendered people have had their bodies altered, so that they resemble more their acquired gender, and less their birth gender. Transgendered people experience rejection on the part of people with strong, fixed beliefs that it is impossible for a man to really change into a woman.

      Transoriented people have experienced (for example) same sex attraction, but want to be accepted in future as people attracted to the opposite sex. They have changed their *minds* rather than their bodies, so that their lives resemble more their acquired sexual orientation than their former self-identified sexual orientation. Transoriented people often experience rejection on the part of people with strong, fixed beliefs too. Beliefs, in their case, that it isn’t possible for somebody with a homosexual orientation to really change into somebody who now has a heterosexual orientation either.

      Which do you think is worse? Being transgendered and finding oneself shunned or insulted by people who don’t believe that changing one’s body is worthwhile and possible, when one knows perfectly well from experience that it worked for oneself? Or being transoriented, and finding oneself shunned or insulted by the same or different people, who don’t believe that changing one’s *mind* is worthwhile and possible, if that is what one wants to do?

      Despite the obvious parallels between the plight of both, health professionals are willing to offer transgendered people and transoriented people completely different “help” (if one can call it that).

      During my lifetime, I think that I have discerned an increase in the tolerance shown to transgenedered people who have changed their bodies, but an increase in the intolerance shown to transoriented people, who were not even allowed to place an ad on a bus not so long ago, reminding us of their existence.

  2. Rose White says:

    This blog is interesting for pointing out the existence of lesbian and homosexual led law firms but none of these firms will take on a case involving a transsexual…transphobia is as rife in law as in the streets and the rainbow flag does not stand for transsexuals.

  3. You are right about Lord Hailsham. But the answer to his famed question (roughly, “is there anything in your background that would embarrass the Lord Chancellor if it became known after your appointment?”) would now be a resounding “no”. If he had been Lord Chancellor now, there would surely have been no problem with the appointment and promotion of these distinguished judges.

  4. John Allman says:

    The greatest concern, from my point of view, is that, even before same sex marriage is legalised in the UK, in at least one case, social workers are striving to deprive a toddler permanently of the right to be brought up by both of his or her natural parents, because one of them has argued publicly on his personal blog against same sex marriage, lest the child concerned be exposed to such politically incorrect beliefs as he grows up. For obvious legal reasons, I am unable to identify the individual victim of this official intolerance of diversity of opinion about same sex marriage.

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