Sunday, 17 July 2011

MaltaToday: Under the gay radar

The litmus test on gay rights is whether gay couples are granted the same rights as married heterosexual couples. Granting gays couples the same rights as cohabitating brothers and sisters will simply institutionalize inequality.

The fact that hundreds of LGBT people and straight people supporting their cause took to the streets of Valletta last Saturday was the first significant indication that the divorce referendum has unleashed forces which conservatives cannot control.

It is also positive that LGBT people are celebrating their diversity in public and discussion seems to have moved away from pseudo scientific and religious arguments on what constitutes normality. Equally positive was the participation of PL leader Joseph Muscat, AD leader Michael Briguglio and Nationalist MP Karl Gouder. This shows that gay issues are becoming mainstream.

But the celebration of diversity which characterised last Saturday's march should not come at a cost of a clear focus on legislative reforms which can only be enacted through political struggle. One such reform is equality between same sex and opposite sex couples.

For the government the chickens will come back to roost as soon parliament starts discussing a law on how to regulate cohabitation. This will provide it with the first real test on how far it is willing to go in legislating for equality.

Thanks to the divorce referendum we are no longer faced with a situation where many heterosexuals whose first marriage failed are forced to cohabit simply because they cannot divorce and re-marry. For heterosexuals, cohabitation will become a choice. It is extremely doubtful that the government will grant cohabiting couples the same rights as married couples as this would blur any distinction between marriage and other forms of commitment.

With the advent of divorce all heterosexuals will have the right to marry or re-marry and thus one fundamental discrimination against a category of heterosexuals will been removed. Marriage will become an option for all heterosexual couples.

But in the absence of institutionalizing same sex marriage, gays and lesbians will have no choice but to cohabit. Therefore granting them minimal rights associated with cohabitation will simply institutionalize a fundamental inequality between heterosexuals who can marry and same sex couples who cannot marry. This would simply mean that gay couples will be forced to cohabit by the state.

There are only two ways to redress this inequality; either to grant same sex couples the right to marry as happens in Spain or to create an alternative regime which gives same sex unions the same status as married couples as happens in the United Kingdom. According to the civil partnership act of 2005, couples who enter into a civil partnership in the UK obtain the new legal status of "Civil Partners", instead of the traditional husband and wife status.

Neither should we underestimate the value to the symbolism of a marriage ceremony in which partners promise their commitment to each other in front of an official of the state. This is a profound anthropological need which pervades human societies. In fact in the UK same sex couples are allowed to speak vows prior to signing the registration. Couples are also required to bring a minimum of two people, who will serve as witnesses and are able to sign the registration documents.

So far Alternattiva Demokratika has come up with the most concrete legislative proposal for the recognistion of civil unions through which same sex couples will be entitled to receive similar treatment and benefits as that of any married couple. The Greens' proposal falls short of proposing gay marriage. In a world dominated by the soundbite, opting for civil unions instead of the semiotically more powerful "marriage", represents a lost opportunity for a party which thrives on being different. But the proposal ensures full legal equality and makes a clear distinction between cohabitation rights for all and sundry, and gay partnerships entailing the same rights as marriage.

The Labour Party has also hinted that it favours civil partnerships but it is still unclear whether this would entail full equality between same-sex and straight couples. Labour leader Joseph Muscat has already declared that he disagrees with gay marriage because he believes that marriage should be between a man and a woman and that he is also against adoptions by gays. Muscat is once again engaging in a balancing act between presenting a liberal and gay friendly face by participating in the pride march and keeping cultural conservatives on board. That said, by participating in the gay pride event he showed clearly on which side his heart beats.

As shown by the British experience one can circumvent the "marriage" issue by legislating for an alternative regime which gives sam-sex couples the same rights as married couples. So both Labour and AD could be simply trying to avoid a culture war while embarking on the path to full equality.

But the exclusion of adoptions by Muscat signifies accepting a fundamental inequality between same-sex couples and heterosexual couples. In my opinion adoption is no automatic right for both gay and straight couples as both should prove themselves to be responsible parents. But why should gay couples be excluded if they can prove themselves to be good parents?

In the UK each party of the same sex union automatically becomes responsible for any children either person may have. Couples can also apply to adopt a child jointly. There is no right to adopt a child but individuals and couples can expect to be assessed for their suitability fairly and equally.

On its part the Nationalist Party remains crippled by a latent conservatism which makes it averse to any idea of full equality between gay and straight couples. Fielding a few token liberal candidates won't redress this imbalance. What is needed is a qualitative leap similar to that made by UK Conservative leader David Cameron who praised Labour for introducing civil partnerships.

The danger for the PN is that the divorce campaign has brought the conservative establishment out of the woodworks. It will be difficult to silence them now. They will remain a thorn on its side frustrating any attempt to modernise the party. Unfortunately this comes at a time when many Nationalists are realizing that conservatism is becoming an electoral liability. But in politics you simply reap what you sow.

Relegating gay couples to the same status as brothers and sisters living together would be an insult for same sex couples who want an acknowledgement of their love and commitment from the state. Perhaps it is time to break the impasse through another private members bill, this time based on the UK model of civil partnerships. It would be interesting to see which MPs are willing to support such a bill.

What is sure is that from now onwards the three political parties are under the gay radar and it will take more than token candidates or symbolic gestures to win their vote.

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