Friday, 31 May 2013

Independent: Marriage Equality, a Distorted View
Monday, 20 May 2013, 10:00 , by Gabi Calleja

In her opinion piece entitled Same-sex marriage causes fundamental harm to society (TMIS, 12 May), C. Gwendolyn Landolt makes a number of unsubstantiated predictions on the impact the introduction of marriage equality would have on Maltese society.

The only element of truth in the article is that the introduction of marriage equality would entail a redefinition of the institution of marriage to encompass a union of two people, irrespective of their gender.

While some may continue to link the procreative function with marriage, it is hard to imagine how anyone could still live under the illusion that all marriages result in procreation, that all children procreated in marriage are well cared for, that all marriages survive the test of time or that the ability to procreate is limited to married couples.

C. Gwendolyn Landolt conveniently omits to mention that professional bodies in the field of psychology, social work, psychiatry and paediatrics, among others, have issued position statements and presented research clearly demonstrating that sexual orientation has no bearing on the quality of parenting or the developmental outcome of children raised by same-sex couples.

She also claims that homosexuality is not an immutable characteristic but a choice or, as she puts it, “a behaviour” as evidenced by former gay men and lesbians who now live heterosexual lives. C. Gwendolyn Landolt again fails to acknowledge that current understandings of sexual orientation refute conversion therapies.

In January, the British Psychological Society issued a position statement which said: “Recent publicised efforts to repathologise homosexuality by claiming that it can be ‘cured’ are rarely guided by rigorous scientific or psychological research, but often by religious and political forces opposed to full civil rights for people of same-sex sexual orientations”.

While the state may have a compelling interest in recognising heterosexual unions, such relationships are in no way undermined by extending marriage to same-sex couples. Research has shown that married people tend to be happier and that marriage leads to more stable relationships and improved mental health and well-being. Not recognising same-sex couples and their families, on the other hand, stigmatises such couples and families and leads to poorer mental health. The American Psychological Association therefore justifiably argues that marriage equality is also in the state’s best interest.

C Gwendolyn Landolt blames the introduction of marriage equality for the increase in marital breakdown and the erosion of what she calls traditional family values. She conveniently forgets that, in Canada, divorce predates the introduction of marriage equality by 43 years and that, presumably, marriage equality is more likely to be a result then a cause of societal change. She then continues with her scaremongering by highlighting the steps that Canada has taken to combat homophobia and transphobia and ensure that the rights of all citizens, irrespective of their sexual orientation or gender identity, are respected.

She rants against the Canadian school curriculum which ensures that children are educated to respect diversity in sexual orientation and gender identity. For C. Gwendolyn Landolt, a gay affirmative approach that treats a lesbian, gay or bisexual identity as an equally positive human experience and expression to heterosexual identity is tantamount to indoctrination.

The most recent study, conducted by the Fundamental Rights Agency (FRA) with 93,000 citizens across the EU, found that over 80 per cent of respondents in every EU member state recall negative comments or bullying of LGBT youth at school. Two-thirds (67 per cent) of all respondents said they often or always hid or disguised the fact that they were LGBT during their schooling before the age of 18.

The FRA recommends that “EU member states should ensure that objective information on sexual orientation, gender identity and gender expression is part of school curricula to encourage respect and understanding among staff and students, as well as to raise awareness of the problems faced by LGBT persons.”

C. Gwendolyn Landolt also states, despite all the evidence to the contrary, that same-sex parenting arrangements are harmful to children. It is difficult to take her seriously when her argument against adoption and fostering by same-sex couples is that children flourish best when reared by their biological parents. I am pretty certain that in Canada, as in most other countries, children from stable and nurturing families are not up for adoption or fostering.

The author also fails to distinguish between relationships between consenting adults and abusive relationships involving children. She also seems to not differentiate between sexual orientation and gender identity.

While in democratic societies the expression of differing views should be encouraged, any discussion on marriage equality should recognise that:

1.The right to marry is a fundamental human right enshrined in the major international and regional instruments. Marriage equality discussions should therefore be approached with a rights-based argumentation that acknowledges the inherent nature of the right to marry. As a fundamental human right, it is to be seen as an end in itself for those who are not granted access to its enjoyment.

2. A rights-based approach to marriage equality implies that the equal dignity of all people is not up for discussion. Public discussions should not be directed towards deciding on the recognition or otherwise of fundamental human rights to groups of people but towards an explanation of why, and in what way, all human rights are, in fact, universal.

3. Since marriage equality and its eventual inclusion in national legislation does not have any long-term negative impact on the meaning and institution of marriage, it should not be perceived as a social or legal threat.

4. Civil marriage is an institution independent of Canon Law and of the ecclesiastical authorities and, as such, should not be construed on the basis of religious belief. Furthermore, defining marriage in terms of its procreation potential excludes and offends those marriages and family units that, for whatever reason, do not include children. It also ignores the Maltese reality of several children being currently raised by gay men and lesbian women.

5. Various legislative changes challenged the apparent immutability of the marriage definition, demonstrating the real possibility of Malta’s House of Representatives to effectively alter the definition of marriage. In its essence, marriage equality calls for yet another such legislative change.

6. Various forms of legal recognition of same-sex couples are based on an evaluation of the rights and obligations attached to each form. A long list of very important rights and obligations is triggered once the couple sign the marriage contract. These rights and obligations provide an automatic protection for the spouses individually, the children and the family unit itself. Except for limited situations of possible self-regulation, same-sex couples are denied all of this protection.

7. Marriage equality is the form of legal recognition that ensures the enjoyment on an equal footing of all rights and obligations enjoyed by married different-sex couples. It is also based on an indiscriminate view of the LGBTI community as equal members of Maltese society, having equal rights and sharing equal responsibilities. Registered partnerships/Civil Unions are the form of recognition most closely affiliated with marriage, since they generally grant a high level of rights enjoyment together with obligations similar to those emanating from a marriage contract. Cohabitation legislation does not recognise the existence of a stable relationship built on love, commitment and mutual support but merely acknowledges the physical presence of two or more people under the same roof.

8. Cohabiting same-sex couples are a family unit and should enjoy the protection of the law through a form of recognition as such, and not as any other form of relationship.

9. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child must be a primary consideration. It is in the best interests of children to enjoy a relationship with their parent(s) that is recognised and protected by the law, regardless of whether they share a biological link with their parent(s).

10. Adoption of a child by his/her co-parent should be made available without discrimination based on the child’s birth status or the parents’ marital status, sexual orientation or gender identity. Co-parent adoption should not be dependent upon the severance of other parental ties. Evaluations of a person’s, or of a couple’s, parenting skills should not distinguish between heterosexual and homosexual people but should take into account the potential for offering a child an environment conducive to his or her overall well-being.

11. Marriage equality in Malta will also avoid the emotional, financial and social difficulties faced by same-sex partners in any immigration context, thereby eliminating a discriminatory approach to Malta’s application and interpretation of its EU law obligations.

12. On the basis of experiences in other jurisdictions, it seems that rendering national marriage legislation gender-neutral, in both form and in interpretation, could be the most straightforward way of introducing marriage equality in Malta.

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