Ashwin Raj: Same-Sex Marriage Not A ‘Right’
International human rights law does not necessarily recognise same sex marriage as a right.
The jurisprudence emerging out of the European Court of Human Rights instructs us that same sex marriages are not necessary to deliver equality on the grounds of sex and gender as long as the marital status does not carry with it legal rights which are not available to unmarried couples.
The Court has found that the European Convention of Human Rights does not include the right to marriage for same sex couples either under the right to respect for private and family life or the right to marry and found a family and that the question of same sex marriage is subject to the national laws of Contracting States and that the traditional concept of marriage as a union between a man and a woman does not impose an obligation on governments of the Contracting States to grant same sex couples access to marriage and that States enjoy a certain margin of appreciation in conferring an alternative means of recognition for same sex relationships.
The European Court has included gender identity and sexual orientation in the definitions of sex and gender.
Thus, as long as de facto couples, irrespective of whether they are same sex or not, have the same legal rights as married couples in Fiji, there is no breach of the right against discrimination for same sex couples.
In the UK, for instance, the law created Civil Partnership Act which specifically gave equal rights to same sex couples thus avoiding legalising same sex marriage subsequent to the case.
What needs to be recognised is whether discrimination emanating from the denial of same sex marriages will have the effect of curtailing fundamental rights and freedoms leading to further discrimination.
The inclusion of sex, gender, sexual orientation, and gender identity under section 26(3) of the Fiji Constitution is an important legal safeguard even if Fiji decides not to legalize same sex marriage.
Furthermore, there is no clarity on whether the term “expression” under 26(3) includes marriage and therefore there is a need to develop jurisprudence in this area.
Our priority must be towards addressing everyday structural violence and discrimination faced by the LGBTI community whether it be an interdiction of their rights as arrested and detained persons, hate speeches and cyberbullying, ability to secure gainful employment, discrimination in the health sector, workplace or in schools, intolerance and unacceptance by family and communities often leading to depression, sufferance and ultimately suicides.
Fiji needs to have calm and rational debate on this sensitive subject and we must not mislead and politicize what international human rights law says on the issue and indeed the Bill of Rights provisions of our Constitution and ancillary legislations.
Feedback: jyotip@fijisun.com.fj
