Backing rights for same-sex couples

In our regular series, a group of experts from Liberty and the Public Law Project answer your questions

Q How can the Human Rights Act help my homosexual clients?

A Although sexuality is not listed in article 14 as one of the prohibited grounds of discrimination, it is now accepted by the European Court of Human Rights that discrimination on the basis of a person's sexuality comes within the scope of the article - Salgueiro da Silva Mouta v Portugal (application number 33290/96, judgment of 21 December 1999).

This has recently been confirmed by the Court of Appeal in Mendoza v Ghaidan [2002] EWCA Civ 1533.

This case shows how useful the Human Rights Act will be for challenging legislative provisions which discriminate against homosexuals.

Mr Mendoza lived with his same-sex partner, Mr Walwyn-Jones, for almost 30 years.

They shared a flat of which Mr Walwyn-Jones was the Rent Act-protected tenant.

Mr Walwyn-Jones died.

In proceedings brought by the landlord, the judge at first instance held that the two men had lived together in a close, loving and monogamous relationship.

Following the House of Lords' decision in Fitzpatrick v Sterling Housing Association [1999] 3 WLR 1113, he awarded Mr Mendoza an assured tenancy of the premises.

The facts in Fitzpatrick were very similar to those in Mendoza.

In what was considered a ground-breaking decision at the time, the House of Lords found that the same-sex partner of a deceased Rent Act-protected tenant was a member of his family and therefore entitled under paragraph 3 of schedule 1 to the Rent Act 1977 to succeed to the tenancy as an assured tenant.

The issue for the Court of Appeal in Mendoza was whether, in the light of the Human Rights Act, Mr Mendoza was entitled under paragraph 2 of the same schedule to succeed to a statutory tenancy under the Rent Act.

Paragraph 2 only applies to a surviving spouse or 'a person who was living with the tenant as his or her wife or husband'.

Discrimination on the basis of sexuality

Lord Justice Buxton gave the lead judgment.

He accepted that, even though Mr Mendoza would retain his home whether he succeeded under paragraph 2 or under paragraph 3, the difference in the level of security between the two types of tenancy was such that the case fell within the ambit of article 8.

He accepted that discrimination on the basis of a person's sexuality is now 'clearly recognised as an impermissible ground of discrimination on the same level as the examples [...] specifically set out in the text of article 14' (paragraph 32) and that Mr Mendoza was treated differently from the survivor of a heterosexual relationship.

Considering the objective and reasonable justification posited by the landlord, he rejected the argument that the court should defer to the decision of Parliament as to how the balance should be struck between the competing interests of landlords and tenants.

He stated that issues of discrimination have 'high constitutional importance' and that 'in such cases deference has only a minor role to play' (paragraph 19).

In any event, he failed to see how giving surviving homosexual partners a lesser degree of security of tenure could either promote flexibility in the housing market or protect the family.

Pursuant to the duty under section 3 of the Human Rights Act to read legislation compatibly where it is possible to do so, he read the words 'as his or her wife or husband' in schedule 2 to mean 'as if they were his or her wife or husband' and allowed Mr Mendoza's appeal.

The decision in Mendoza would seem to open the way for challenges to legislative provisions, which treat same-sex couples differently from unmarried heterosexual couples.

The only constraint may arise from difficulties in reading definitions which clearly denote heterosexual couples to include same-sex couples; it was clearly a lot easier to read the relevant definition in the Rent Act ('a person who was living with the tenant as his or her wife or husband') compatibly than, say, the type of definition widely used in social security legislation - see, for example, regulation 1(2) Child Support (Maintenance Assessments and Special Cases) Regulations 1992, which defines an unmarried couple as 'a man and a woman who are not married but are living together as husband and wife'.

Where such definitions cannot be read compatibly those disadvantaged by them will either seek to have them disapplied if they are in secondary legislation and primary legislation does not prevent their removal, or they will ask the courts to make declarations of incompatibility.

Disadvantaged same-sex couples

However, there are situations where same-sex couples are disadvantaged not in comparison to unmarried heterosexual couples but in comparison to married ones.

The difficulties are most evident when one partner dies.

A surviving same-sex partner cannot claim bereavement benefits, cannot claim the inheritance tax relief which a surviving spouse may claim, and - although there are some schemes that now allow for this or something similar in effect - is unlikely to get any spousal benefits under the deceased partner's pension scheme.

Neither Strasbourg nor the domestic courts have had to address this issue yet.

However, Strasbourg has had to deal with claims under article 14 brought by unmarried heterosexual partners.

In Saucedo Gomez v Spain (application number 37784/97, decision of 26 January 1999), the applicant claimed that her rights under article 14 taken with article 8 had been breached by the Spanish courts' refusal to transfer to her a flat where she had lived with her male partner for 18 years.

Throughout the time that she lived with her partner, she was married to another man and had not divorced him, even though divorce became legal in Spain during this time.

In a majority decision, the court found her application inadmissible.

It noted that differences in the treatment of married and unmarried partners could be permissible if they sought to protect the traditional family and were proportionate.

In finding the difference in treatment proportionate in the present instance, the court was clearly influenced by the fact that the applicant could have divorced her husband and married her partner, thereby acquiring all the economic advantages that go with marriage.

The situation of an unmarried same-sex couple must be distinguishable on the basis that they do not have the option of marrying or acquiring the benefits of marriage in some other way.

The government has recently announced its intention to bring forward proposals to allow same-sex couples to register their relationships and thereby acquire at least some of the benefits that go with marriage.

Although there is no doubting the government's commitment, it may waiver in the face of strong opposition, particularly in the House of Lords.

Therefore, it is important that practitioners do not overlook the potential of the Human Rights Act to advance the interests of their homosexual clients.

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