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Court of Appeal upholds ban on mixed-sex civil partnerships

Appeal to Supreme Court in preparation

The Court of Appeal has upheld the ban on heterosexual civil partnerships.

In Steinfeld and Keidan v Secretary of State for Education [2017] EWCA Civ 81 the Court by a split decision dismissed the appeal of Rebecca Steinfeld and Charles Keidan. All of the judges were critical of the status quo. All agreed that the couple are being treated differently because of their sexual orientation, and that this impacts their private and family life. All rejected the argument that they could 'just get married'. Most importantly, all emphasised that the government cannot just 'wait and see' indefinitely, but must make a decision quickly.

But Lord Justices Beatson and Briggs concluded that the government's current "wait and evaluate approach" is objectively justified. The ruling states that the government now has only a short window to 'wait and evaluate' before deciding whether to extend civil partnerships to all, or else their position will become unlawfully discriminatory.

Speaking outside the Royal Courts of Justice where the ruling was handed down, supporters of the Equal Civil Partnerships Campaign called on the government to announce a simple amendment to the Civil Partnership Act 2004 in the forthcoming Queen's Speech so as to extend civil partnerships to all. They said there is clear demand for that to happen, it is simple to do, and it would be good for families and children. However, Lord Justice Briggs had noted that "there is not yet any general public consensus, or even majority view, as to whether to do away with civil partnership (or close it to new members) or to extend it to same-sex couples". 

The case was brought by Rebecca Steinfeld and Charles Keidan, a mixed-sex couple from London who want to form a civil partnership.

Ms Steinfeld said:

"We are pleased that today's ruling has shown that the government must act very soon to end this unfair situation. All three judges agreed that we're being treated differently because of our sexual orientation, and that this impacts our private and family life. All three rejected the argument that we could 'just get married.' All three emphasized that the government cannot maintain the status quo for much longer – they are on borrowed time. Lady Justice Arden accepted our case on almost every point. She stated: "My overall conclusion: the appellants are right." We lost on a technicality – that the government should be allowed a little more time to make a decision. So there's everything to fight for, and much in the ruling that gives us reason to be positive and keep going."

Mr Keidan said:

"The Court of Appeal has made it clear the status quo cannot continue. The government should now recognize the benefits of opening civil partnerships to mixed-sex couples. The measure is fair, popular, good for families and children, and long overdue. They have everything to gain."

Mr Keidan and Ms Steinfeld originally applied for notice to form a civil partnership in 2014, but were turned away by the registrars. They took their case to the High Court in January 2015, but the judge then ruled that the ban on mixed-sex civil partnerships was not unlawful.

In their ruling, Lord Justice Beatson said: "I do not consider that the discrimination in the status quo can be maintained for long." Lord Justice Briggs said: "'I can well understand the frustration which must be felt by the Appellants and those couples who share their view about marriage, about what they regard as the Government's slow progress on this issue. Some couples in their position may suffer serious fiscal disadvantage if, for example, one of them dies before they can form a civil partnership."

The couple's solicitor, Louise Whitfield from Deighton Pierce Glynn, said:

"It is deeply disappointing that my clients lost their appeal by such a narrow margin on such an important issue, particularly when all three judges readily accepted that there had been a potential violation of their human rights. All three also agreed that the time available to the Government to address the obvious discrimination Charles and Rebecca face is limited. Lady Justice Arden accepted that time had already run out, whilst her fellow judges were unfortunately prepared to allow the Government a little more time, and thus the appeal was lost on this issue alone. It is therefore clear that the Government must act quickly in any event to deal with the discrimination which the court as a whole recognised could not continue indefinitely and which they agreed is ultimately unsustainable. We are therefore awaiting an urgent response from the Secretary of State as to her position in response to the judgment, whilst preparing an immediate application for permission to appeal to the Supreme Court."

Conservative MP Tim Loughton recently introduced a Private Members' Bill to give mixed-sex couples the right to a civil partnership, which has received cross-party backing. The Bill is due to have its second reading on 24 March 2017.

Mr Loughton said:

"The fact that my Bill for mixed-sex civil partnerships received cross-party backing means the government has no excuse for delaying the passage of this important and positive change. I look forward to the government bringing forward a Bill to the House, one that I know colleagues in my party and across the House will support."

Matt Hawkins, Campaign Manager of the Equal Civil Partnerships Campaign, said:

"Regardless of the decision made in court today this campaign has generated an incredible momentum of its own. Pursuing our legal case has always been one part of a much broader campaign and the number of people backing this cause continues to rise week on week. It's incredible to be part of a cause that has such a broad tent of support – from MPs uniting across the political divide to organisations like Liberty and TUC Women to campaigners such as Peter Tatchell and Owen Jones. We thank all of them for taking us to this point and urge the government to recognise the force behind our cause, the desire for change, and the simplicity involved in making it happen."

Graeme Fraser, partner at Hunters Solicitors, commented:

"Today's decision is surprising because the extension of civil partnerships to opposite-sex couples would have achieved equality and non-discrimination.

"I anticipate Ms Steinfield and Mr Keidan will consider taking their case to Europe on the question of whether the fact that civil partnership is not open to opposite-sex couples is discriminatory and a violation of the European Convention of Human Rights.

"Policy makers should be wary of the ramifications of this case being taken to Europe. They may wish to consider the abolition of civil partnerships completely, since the original intention was to serve same-sex couples who were unable to obtain equivalent rights to opposite-sex couples, as they were unable to marry. Since the enactment of same-sex marriage, the retention of civil partnerships is no longer a necessity. However, same sex couples who have chosen not to convert their partnership to civil marriage should be allowed to remain in civil partnerships if they so choose.

"The question of extending civil partnerships to opposite-sex couples would not however protect people left vulnerable under the current law where there are no specific cohabitation family law remedies, because those who are in a stronger position financially retain the option not to marry or enter into civil partnerships.

"We must continue to advocate for change to protect people left vulnerable under the current law, many of whom are often women with children who have no financial provision, because their long term partners will not or cannot marry them. Only legislative cohabitation reform can achieve this aim."

For the judgment, click here. For the Equal Civil Partnerships campaign, click here. For the Civil Partnership Act 2004 (Amendment) Bill, click here.