Fridae

Lesbian and gay equality rights continue to make progress in various national and international systems.

The first big issue was decriminalisation. When the Universal Declaration of Human Rights was enacted 60 years ago, half of the world had laws making gay sex a crime. Those laws survive in all former British colonies in Asia except Hong Kong although they are almost completely gone in the West.

The second big issue was ending discrimination against individuals. People shouldn't get fired just because they are gay.

The third big issue was the recognition of relationships. If there were rights and obligations attached to heterosexual marriage, those should be applied as well to stable homosexual relationships.

The fourth big issue was the recognition of rights in relation to children - access, custody, adoption, reproductive services.

Three ways to recognise relationships developed.

First "ascription." If it looks like a marriage, treat it like a marriage. Some countries already had rules for unmarried heterosexual couples who were described as living in 'common law' or 'de facto' relationships. Those rules could be applied by judges or legislators to same-sex couples in the name of equality. Sometimes it was the rules that applied to married couples that got applied to same-sex couples. The logic was that heterosexuals could marry and get the benefits. If homosexuals could not marry, they should still have some way to get the benefits, in the name of equality.

Second "registered partnerships" or "civil unions." Create by legislation a system under which same-sex couples can "register" their relationship and get some - or most - or all of the rights and obligations of marriage. This started in Denmark in 1989.

Third extend "marriage." The Netherlands did it in 2001, followed by Belgium, Spain, Canada, South Africa and Massachusetts.

Lots is happening.

Courts in Israel and New York have started recognising Canadian same-sex marriages, though such marriages are not possible locally.

The President of Ecuador announced in March that the government would recognise homosexual unions - "without ever arriving at the point of marriage" he added.

Ireland is just completing a 'civil partnership' bill for same-sex couples. It also defines the rights and obligations of 'common law' couples (straight or gay) who live together without marriage or registration. A recent poll said that 58 percent of the Irish think gay couples should have access to "marriage."

In advance of the Olympics, activists in Beijing have set up an exhibit displaying 10,000 signatures from Chinese citizens supporting same-sex marriage. A bill has been introduced at least twice in the National Peoples' Congress supporting same-sex marriage (with no hope, so far, of passage).

In the UN human rights system we have two decisions under the International Covenant on Civil and Political Rights that hold that same-sex couples should have equal pension rights - Young v Australia in 2003 - and X v Colombia in 2007. We have one decisions saying they cannot claim "marriage" - Joslin v New Zealand.

In the European human rights system we have a decision of the European Court of Human Rights upholding equal tenancy rights for same-sex couples - Karner v Austria in 2003.

On April Fools Day, 2008, the European Court of Justice handed down a decision in the Tadao Maruko case. The ECJ enforces the treaty establishing the European Union. It has nothing to do with the European Convention on Human Rights. The issue was whether a survivors' pension that would be granted to a married partner could be denied to a registered partner.

This was an obvious case of discrimination. In Germany only heterosexuals get married and only homosexuals get registered. The government pension scheme recognised both survivor spouse and survivor partner pension rights. But the pension in question was separate. It was set up under a collective agreement to provide a supplementary benefit solely for employees of German theatres.

The European Union non-discrimination law on sexual orientation (a) only applies to employment and (b) was not to affect "national laws on marital status and the benefits dependent thereon."

Discrimination in pay is discrimination in employment. The Court held that the survivor pension was part of the "pay" granted to the deceased partner. So the matter came within the non-discrimination law. The first problem was solved.

On the second issue, the Court never said what the 'marital status' exemption was about, but held that it does not override the basic non-discrimination rule in the directive. The judges were on our side.

So the rule in the pension scheme restricting survivors' benefits to married partners was struck down.

The German registered partnership law is one of the best in Europe. It treats registered partners as the same as married spouses. But the reasoning of the European Court of Justice does not focus on the fact that the German law delivers the same rights and responsibilities as marriage. As a result, the decision logically applies to all systems of recognition of relationships.

Does it apply where a government - as in Poland - has no registered partnership law? The decision does not tell us the answer. But the logic of the decision is that equal benefits should apply.

And what of Asia? Any recognition of same-sex relationships?

The first cases to be fought over in the West related to health insurance, survivor tenancy rights and pension rights. Generally speaking, governments in Asia do not provide such rights for anybody, straight or gay. Half of Asia is still burdened by criminal law prohibitions. No country has a national anti-discrimination law that includes sexual orientation.

Taiwan is the exception.

There are two non-discrimination laws. The Gender Equity Education Act, 2004, protects both the sexual orientation and gender identity of students in schools. This was the first legislation in Taiwan referring to sexual orientation and different gender temperament or quality. The Employment Services Act, 2007, forbids discrimination against homosexuals.

The Domestic Violence Prevention Act includes same-sex couples. This is made clear in an 'explanation' under the key section of the legislation. Same-sex marriage was hinted at in Taiwan a number of years ago, but disappeared from the governments' agenda. More recently a Same-Sex Marriage Act was proposed by DPP legislator Bi-Khim Hsiao.

The legislation in South Korea establishing a National Human Rights Commission specifically instructed the body to address discrimination on the basis of sexual orientation. The Commission held public hearings on the possibility of a national anti-discrimination law and proposed such a law to the government last year. "Sexual orientation" was included in draft legislation, then dropped after public controversy with the explanation that it was included by implication. The legislation was not reintroduced, and now there is a new government.

So some things are happening close to home. Expect fights and lobbying ahead.

Douglas Sanders is a retired Canadian law professor now living in Bangkok. He can be contacted at sanders_gwb @ yahoo.ca.