Friday, April 13, 2012

Opinion: Civil Partnership and Equal Rights - time to take off the rose-tinted glasses

Remarks recently reported to have been made by Ben Bradshaw, described in the press as the first MP to enter into a civil partnership, prompt me to review the position regarding the equal treatment of gay men and women, nearly seven years after the the Civil Partnership Act came into force.

I watched David Cameron announce on television his intention to introduce gay "marriage." I was surprised and pleased. I was also amused by the sceptical and rather disapproving expressions of some in his audience of Conservative supporters on hearing the news. They did not seem to welcome it at all, let alone enthuse. This did not bode well.

Recently, Mr Bradshaw was reported to to have dismissed Mr Cameron's plans to introduce homosexual marriage as "pure politics" and was quoted as saying that homosexuals "had already won equal rights with the introduction of civil partners and had 'never need the word marriage.'"  He was also reported to have told the Washington Post that Tony Blair's decision to introduce civil partnership had given same sex couples all the legal protection they needed.

Subsequently, press reports indicate that the proposal to extend marriage has been criticised by the senior figures in the Church of England, Catholic Church, Muslim and Sikh faiths and Conservative party and more than 400,000 people have signed a petition opposing the change.  The future of the proposal seems at least uncertain.

By the time that the Civil Partnership Act came into force, I had lived with my partner for 26 years. We were secure together and hadn’t felt any urgent need for the validation of an officially-recognised status for our relationship. From that perspective, I have to admit that "marriage" was not something that I particularly wanted.

However, the new law offering civil partnership seemed to reflect a degree - albeit belated - of social acceptance of couples like us; it would almost have been rude not to take advantage of the opportunity it offered.

One thing that caused us to hold back from becoming really early civil partners was the tendency of commentators and the media to present civil partnership as gay marriage. We didn’t feel any need to dress our relationship up as if it were a marriage.  Like many gay people at the receiving end of conventionally dysfunctional family life, we were apprehensive and did not aspire to marriage – as a social institution, let alone a sacrament.

Far from being attracted, we were oppressed by the prospect of an ersatz straight wedding with its focus on clothes, catering, fertility and the family. Many gay people have experienced some of their unhappiest and most self-conscious times at what felt like tribal weddings and would not willingly inflict it on themselves.

From a practical point of view, fortunately, once the media interest on the earliest or celebrity civil partnerships had abated, it proved remarkably straightforward to arrange our ceremony in the form we wanted.   Our civil partnership day was touching, tastefully low-key and fun. We were keen to avoid the hoopla of a traditional wedding and found the experience entirely positive.   Members of staff at the Registry Office were flexible and helpful.   
  
On the positive side, dealing with officialdom, government departments and organisations like banks about being a civil partner has been consistently un-embarrassing (if there's such a word) and stress-free. Officials have been pleasant, professional and seem to have been well-trained.

However, even though the law now supposedly prohibits discrimination in the supply of goods and services on the basis of sexual orientation, it is surprising how inept some (and I stress only some) establishments in the so-called "hospitality industry," such as hotels and restaurants, remain at welcoming and processing same-sex couples.   Even some five star hotels can seem surprised and uncomfortable to be confronted by two men requesting to share a room. and, dare I say it, a bed. Their stuttering hesitancy creates embarrassment where none need exist and makes checking-in a repeated nightmare. 

I suspect that on occasion some hotels still continue to try to foist inferior accommodation on men sharing, perhaps on the basis that they will be so eager to get through the painful process of checking–in that they will not object to being allocated the dark, small and dingy room next to the lift and facing a brick wall. 

After our very happy partnership ceremony and memorable hotel reception and following too many decades of not sharing all one’s domestic arrangements, it was personally challenging to register a Civil Partnership and effectively out oneself.

Also, at this point, I mistakenly assumed that on becoming a civil partner, my partner would enjoy the same pension rights as a spouse in the event of my death. This was not a correct interpretation of the law as far as a survivor’s pension based upon rights accrued before the Civil Partnership Act is concerned.  
   
In this context it is wrong to state categorically that homosexuals have won equal rights.  An exemption in the Equality Act 2010 allows employers to treat married couples and civil partners differently as regards pension rights attributable to service prior to 5th December 2005 (when the Civil Partnership Act 2004 came into force).  This means that if you are in a civil partnership and your partner has an occupational pension, and they retired before 5th December 2005, you are not entitled to spousal benefits under the pension when they die. A married person in exactly the same position would be entitled to that benefit (which is normally half the value of the pension).

What this means in practice for me is that that if I were not a civil partner and tomorrow married a lady met over the Internet and then died, my new Internet bride would receive about fourteen times more pension than my exclusive male partner of  more than three decades.

For rights accrued after the new Act, the position is equal, but it doesn’t help many older civil partners. Nor does it help to be told that the problem will "eventually disappear" - in other words it will go away when surviving civil partners, who have been discriminated against and suffered financial hardship, die.  If the law remains as it is, it will be several decades before same sex couples achieve real equality in relation to pension provision.

In the meantime, the pension scheme and employer do not recognise the fact that same sex couples function  in the same way as husbands and wives.  Unlike a conventional spouse, the years of loyal support given to an employee, and therefore indirectly to the employer, by his or her same sex partner which helped him to carry out his job throughout his working life are disregarded in terms of pension provision for the survivor; effectively, because the employee is gay, his partner's support is neither acknowledged nor rewarded.

Liberty has argued that this differential treatment of  like claimants may place the UK in breach of both the Human Rights Act 1998 and EU law and has been working to secure equalisation.  Liberty has already succeeded in persuading Foster Wheeler, a major multi-national company, to give civil partners of its employees the same pension benefits awarded to spouses. In that case, the couple had lived together for 40 years and had entered into a civil partnership in 2006. Under Foster Wheeler’s  pension scheme surviving spouses were entitled to 50% of a member’s pension upon their death, but, relying on the exemption in the Equality Act, civil partners were originally excluded. After filing an action on behalf of Liberty's clients in the Employment Tribunal, the company changed its policy.  
  
Since this change would affect only a small percentage of workers, and since pension funds’ liability towards surviving spouses is incredibly speculative, it seems unlikely that a change in the law to bring about equalisation for surviving civil partners would have any significantly detrimental effect on admittedly hard-pressed pension funds.  The exemption in the Equality Act 2010 seems to be out of step with the many areas which have been reformed to ensure that all couples are treated equally under the law and its repeal would be a significant step forward.

Clearly the Civil Partnership Act then has not brought about equality in this area and, despite favourable decisions in test litigation like the Maruko Case in Germany, there is no sign of the introduction of equal treatment. It will take a change in the law to achieve that. Other than the good work being carried out by Liberty, I'm aware of no campaigning with any visibility being currently undertaken by other lobbyists. Sadly, I’m certainly not holding my breath until equalisation arrives

It doesn’t appear that the Civil Partnership Act reflected any major change in attitudes of most employers regarding the case for treating those in long-term same sex relationships equally with married couples.Those lucky enough to be employed by enlightened employers, such as the RAC, have found that all pension rights of civil partners and spouses are equalised.  Those not so unfortunate will have to await a change in the law which forces schemes to treat surviving civil partners equally with spouses.

Even when an employer has published an equal opportunities policy providing that it would not treat any employee less favourably on grounds of marital status or sexual orientation, one should not assume that it will be legally obliged to use its considerable powers and discretion as principal employer and ultimate funder of the pension scheme to treat civil partners the same as spouses as far as rights accrued before the Civil Partnership Act. Some employers have responded that it is unclear as to how such obligations are supposed to interact with benefit provisions of pension schemes or simply denied any linkage altogether.

Whilst the law in this country may theoretically prohibit discrimination on grounds of sexual orientation, in the board room, office and shop floor actual attitudes and habits don't appear to have changed that much. Gay employees are obviously a minority and its is apparent that perceptions and treatment are only gradually becoming more tolerant and accepting. There does not appear to be much evidence that such acceptance as there now may be fast becoming either universal or ungrudging.

The norm in the competitive world of business, commerce and the professions still remains heterosexual and all that this implies in terms of the vital part played by preferred perceived lifestyle and mindset in gaining and retaining employment and promotion. In Britain, it appears that the ideal company employee continues to be a family man with a conventional stable spousal relationship and children. This normality is still deemed to provide the stability preferred in a reliable employee or colleague. To check this view, consider how few outwardly gay men or lesbians are known serve on the boards of public companies or are partners in major professional firms. This seems to apply even more so in smaller concerns and those more distant from London. Put simply, few business meetings, dinners and golf-days of, say, Midland engineers or northern firms of lawyers or accountants seem normally to feature many openly gay men or women. Those present are the same as they have always been; the laddish banter and the bourgeois assumptions are unchanging and it is just presumed that you must be married with children.

This heterosexual conformity applies in spades at the local golf, tennis and rugby club, in the gym and squash court and at the lodge and networking brunch. This is a fact, no matter how many statements to the contrary are made by metropolitan-based politicians that equality has arrived.

The Civil Partnership Act was a worthwhile and constructive step towards equal treatment of gay men and women, but its effect and implications should not be overestimated. It is inaccurate to assert categorically that the underlying views of society as a whole have mellowed across the board and will continue to do so. The attitudes of many employers and pensions schemes remain unchanged. Challenging economic conditions and worsening pension funding have also provided a useful smokescreen for the refusal of some firms to countenance equalisation.      
       
Sadly in 2012, many families still consider the prospect of a gay child as problematic. Bullying still occurs and homophobic attacks still take place on our streets. Progress has been made over the last decade, but these problems continue to exist and cannot be whitewashed by complacent assertions that equality has been achieved.
     
So, whatever the spin doctors may have inferred, although the Civil Partnership Act represents a tremendous advance, it does not equalise the rights of many surviving civil partners to match those of spouses.
 
Realistically, there seems no immediate prospect of this changing. Despite its benefits, we should not view the Civil Partnership Act through rose-tinted glasses.

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