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After 28 years of living together as a couple, Michael Hendricks and René LeBoeuf, two gay men, claimed the legal right to marry before Quebec’s Superior Court in November 2001. Their claim is similar to those presented a few weeks earlier by some 10 lesbian and gay couples in British Columbia and Ontario.
Hendricks and LeBoeuf must confront not only the Canadian government in court, but also the Quebec Government, as well as the Francophone Evangelical Protestant Alliance of Quebec, and the Catholic Civil Rights League, all of which oppose their request. However, the couple can count on the support of the Quebec Coalition for the Recognition of Same-Sex Spouses, a broad coalition of trade unions, feminist organizations, and advocates for gay and lesbian rights, which was granted intervener status in the case.
A few weeks after the November hearings ended, Quebec’s Minister of Justice announced his intention to present a draft bill on civil unions which would grant same-sex couples a status equivalent to that of married spouses. The « Avant-projet de loi instituant l’union civile des personnes de même sexe et modifiant le Code civil et d’autres dispositions législatives » was introduced in mid-December in Quebec’s Assemblée nationale and a Parliamentary Commission held in February 2002. But what does this draft bill include in terms of rights and obligations? What advances and limitations does it suggest for the equality of same-sex couples and their children? In early February, Madame Justice Louise Lemelin sent out an order to re-open the hearings so that the possible impact of civil unions on the remedies requested can be discussed.
A Laudable Initiative
Through the draft bill, the Minister of Justice is proposing a new form of relationship recognition, that of civil union, and is creating a third civil status, that of partners, open only to same-sex couples. The bill would amend the Code civil to set out the conditions of formation, celebration, publication, and dissolution of civil unions, as well as its civil consequences, including contribution to household expenses, family residence, family patrimony, compensatory allowance, liability for maintenance, matrimonial contracts and regimes, and the right of succession. Civil unions would allow same-sex couples to avail themselves of many of the rights and obligations to which they have not had access because they were excluded from marriage.
Another positive element of the draft bill is the possibility of celebrating civil unions before the same authorities (judges and religious officials) as married spouses. This is a significant innovation in light of other registered partnerships in the world, which, except for the State of Vermont, do not allow union to be affected through a religious ceremony. The Quebec Government initiative answers the wishes of many lesbian and gay couples who would like to sanctify their unions and obtain the pertinent rights and duties. Some Quebec churches already bless and celebrate same-sex unions and these celebrations could finally grant legal rights.
In the opinion of the Quebec Coalition for the Recognition of Same-Sex Spouses, all of these factors contribute to democratic progress in our society. Nevertheless, the draft bill also includes some major limitations by maintaining discrimination with respect to parental rights by creating a separate civil status for same-sex couples.
Filiation, Parental Authority, and Adoption
Section 21 of the draft bill grants parental authority to the partners of a civil union. Paradoxically, however, the draft bill does not allow them to be acknowledged conjointly as parents of a child. How will the biological parent’s spouse be able to assume parental authority? This question is especially pertinent as many gay and lesbian couples plan to have children. Those who already have children are pinning their hopes on an acknowledgement of the right to filiation and on access to adoption.
At present, Quebec’s public adoption services do not allow same-sex couples to adopt children. Nothing in the law forbids it, but nothing authorizes it either. However the discriminatory practices of the Centres jeunesses du Québec have excluded, in effect, same sex couples from accesss to adoption services. In such a context, couples must decide which of the two partners will be the child’s legal parent and must settle for starting a family knowing the child to come will only be allowed legal recognition by one of the spouses.
Lesbian couples who decide to have a child together and choose one woman to give birth to the child face a similar dilemma. The partner of the biological mother will not be able to claim legal recognition of parental status. These parents provide their child with emotional, psychological, and material support, but they are deprived of filiation rights, of parental authority, and of joint adoption.
More important still, this exclusion goes against the interests of children who find themselves deprived of any social or legal recognition of their family. In this respect, numerous studies have shown that the psycho-social development of children who have a homosexual parent isn’t any different from the development of children with heterosexual parents (see Monique Dubé and Danielle Julien, « Le développement des enfants de parents homosexuels : état des recherches et prospective » in Actes du colloque Parentalité gaie et lesbienne : famille en marge? (Montréal: Association canadienne pour la santé mentale – section Montréal, 2001)). These children do not show more sexual identity problems, and they are less often sexually abused than children with heterosexual parents. In other words, the homosexuality of one or both parents compromises neither the development nor the security of children. The results of these studies indicate that we should not write off same-sex couples as inadequate parents, since they provide their children with affection, support, and protection equal to that offered by one or both heterosexual parents. It is also interesting to note that these children are not more likely to develop a homosexual orientation.
The Quebec Coalition for the Recognition of Same-Sex Spouses hoped that the draft bill might correct these inequities which have no justification. To the contrary, the draft bill does not address filiation — at most, it recognizes some degree of parental authority. What message does the Quebec Government want to send the children of these couples? That they don’t have the same rights as other children in Quebec? That they are illegitimate children? That their family is not a real family?
By not granting parental rights to same-sex couples, the Quebec Government maintains unequal treatment of same-sex couples in comparison to opposite-sex couples, thus fostering a new form of discrimination that the gay and lesbian communities will continue to fight in the courts.
Beyond Separate Equality
The creation of civil unions would have the effect of creating a third conjugal status, available only to same-sex couples. Quebec isn’t the first jurisdiction to set out on this path in response to the demands of gays and lesbians claiming the right to marry.
Since 1989, many jurisdictions, increasingly challenged by marriage-rights demands, have come to grant various forms of registered civil partnership that concede some form of legal recognition to same-sex couples. By the year 2000, ten jurisdictions had implemented some form of registered partnership, whether available only to same-sex couples (Denmark, Norway, Sweden, Iceland, and the State of Vermont), to same-sex and opposite-sex couples (the Netherlands, Hungary, and France), or to any co-habitants who mutually support each other (states of Hawaii and Vermont, Belgium, Spanish Catalonia, and Norway). With the exception of the Netherlands, which adopted a law in September 2000 granting civil marriage rights to lesbian and gay couples, no other country has granted same-sex couples entering a registered partnership rights identical to those conferred on married spouses. Current regimes may give same-sex spouses most of the rights enjoyed by married persons (Denmark, Norway, Sweden, Iceland, and the State of Vermont) or part of the rights granted to common-law partners (France and Hungary). For more information on registered partnerships around the world, please see Irene Demczuk, M. Caron, R. Rose, and L. Bouchard, Recognition of lesbian couples: an inalienable right, available in French and English from Status of Women Canada (Ottawa: 2002).
The principle underlying civil union, and more generally, reg-istered partnerships, is that of granting same-sex spouses some of the advantages and obligations offered to opposite-sex spouses, but in the framework of a separate regime. Thus, the notion of registered partnerships is inspired by the separate equality approach. However, this theory of separate equality has been rejected in Canada, as it was in the United States when racial segregation laws were finally abolished in 1954 (Brown v. Board of Education, 347 U. S. 483 (1954)). In the case of minorities whose oppression is so normalized and trivialized, such as gays and lesbians, the only justification for maintaining discrimination in regard to marriage, and for creating a separate marital status, would be society’s low level of consciousness around these issues. Nevertheless, constitutional guarantees in the Canadian Charter of Rights and Freedoms do not allow some people to enjoy more equality than others.
The separate equality approach as a basis for creating « homo-sexual civil unions » in Quebec, would help maintain a judicial, social, and symbolic hierarchy of status based on sexual orienta-tion. It risks sending a signal to the population that lesbian and gay couples are less deserving of recognition as spouses than are heterosexual couples. If we, as a society, truly stand for the values of respect, equality, and dignity established in the Charter, we must disagree with a proposition that would give same-sex couples and their families a different status than that of the majority, but rather, a second-class conjugal status.
On the contrary, we believe that all couples should have access, without regard to partners’ sexual orientation, to the same conjugal statuses, be they common-law, marriage, or an eventual civil union. It is important that the Quebec Government extend access to this third conjugal status to unmarried heterosexual couples in order not to create any difference in treatment.
Members and allies of the Quebec Coalition for the Recognition of Same-Sex Spouses have filed some thirty briefs with the Parliamentary Commission on Civil Union. All underline the importance of granting same-sex couples and their children equality in law and equality in status. The Commission will hear testimony from children of same-sex couples and from numerous lesbian mothers, along with arguments from churches, experts, and major non-govern-mental organizations. It is too soon to know whether the Quebec Government will bring substantial modifications to its draft bill in order to bring it more in line with the princi-ple of equality. However, one thing is clear — Quebec’s cur-rent pre-election climate favours some degree of progress.
Irène Demczuk is the Coordinator of the Quebec Coalition for the Recognition of Same-Sex Spouses.