'Civil union' rather than marriage is the likely means of rectifying the discriminatory lack of legal recognition for same-sex partnership rights, writes Tadhg O'Brien
Many in the mainstream British and Irish media look to the United States to gauge where our own social trends are headed, but as recent events have shown, this approach can be misguided.
This month the US Supreme Court ruled that states can no longer ban sexual acts between two consenting adults of the same gender, in a challenge to laws prohibiting so-called "sodomy" in 13 states. This occurred against the backdrop of Canada's move just one week earlier to legalise marriage for same-sex couples.
So as the northern neighbour rapidly assumed the role of a pink Nevada for American couples hopping across the border to get hitched, gay rights campaigners in the land of the free advocate "gay marriage" rights as the next step in the fight to recognise lesbian, gay and bisexual (LGB) people as equal citizens. This will be a difficult challenge in a political climate that does not yet protect gay and lesbian individuals against discrimination in the workplace or guarantee the provision of services.
LGB issues are more advanced in Europe. Ireland was one of the last to decriminalise homosexuality, in 1993, under pressure from the European Court of Human Rights. Since then efforts have been made to achieve equality of opportunity with the Employment Equality and Equal Status Acts.
The approach in Ireland has been to look at practical issues affecting LGB people.
The Equality Authority's report last year, entitled "Implementing Equality for Lesbians, Gays & Bisexuals", showed that the lack of legal recognition for same-sex couples is discriminatory and causing significant hardship. But what do same-sex partnership rights mean and why do gay and lesbian couples want it?
Aside from the obvious denial of tax benefits to same-sex couples, which are available to heterosexual couples who choose to marry, and the denial of pension benefits, there are more serious situations arising from the denial of rights to LGB couples. For example, hospital visitation rights can be denied to a partner in the case of illness. If a partner dies and his or her family do not approve of their lost one's lifestyle, often a grieving partner can be denied access to the funeral.
A same-sex partner cannot be acknowledged on the death certificate as the "partner" or "spouse"; in many cases a partner is listed as a "person present at death" or "person who is causing disposal of the body". This can compound an already upsetting situation.
Subsequently an individual may lose their family home, leaving the proceeds to an estranged family. Even in the case of an explicit will being made, the burden of inheritance tax can mean losing one's home regardless.
Where children are added to the equation, partnership rights become more contentious. The policies of the Adoption Board are an issue for another day, however many LGB couples are already parents through previous relationships, or through adoption outside the State and surrogacy. The LGB Pride parade in Dublin earlier this month was as much a family day out as it was a political statement.
As the meticulously constructed costumes and floats meandered so colourfully into the park at the Civic Offices, entertainment was provided not just for the big kids, with children running through the grass playing with each other and their family dogs.
Families with same-sex parents already exist, and their numbers are growing. But these families are not recognised under Irish law, putting children and parents at risk. Children travelling with a parent who is not recognised as a legal guardian could be denied insurance or medical care in an emergency, and the death of a biological parent would result in legal limbo for the remaining parent and child, whose remaining family unit would then be threatened.
Partnership recognition for same-sex couples is already common in Europe. Ireland and the UK are alone in northern EU by not recognising such relationships in law.
This may soon change: the National Economic and Social Forum, set up under the Programme for Prosperity and Fairness, released its findings with the LGB advisory group in the Department of An Taoiseach recently, advocating same-sex partnership rights in line with the Equality Authority's own recommendations.
A Senate advisory committee has been preparing draft legislation for a number of months, with members including the prominent campaigners for equality, Sen David Norris, Chris Robson of the Gay and Lesbian Equality Network, and the Union of Students in Ireland, as well as former LGB Rights Officer Iain Gill.
This committee is expected to propose civil union as an answer to such discrimination in Irish law. Civil union is not marriage, but instead would address the practical issues faced by same-sex couples and families. This leaves those who oppose equality for LGB couples with their concept of the institution of marriage intact.
Key components of civil union would be an income and inheritance tax regime equal to that of other families, the right to nominate a next-of-kin and beneficiary for pension benefits, the right of a foreign partner to live and work in Ireland, and the facility to nominate a co-parent or guardian for one's children.
It is important to be clear that partnership rights, or civil unions, are not restricted to same-sex couples.
An earlier proposal in the UK to recognise gay partnerships would, bizarrely, have discriminated against unmarried heterosexual couples who face similar issues. We need to be careful to avoid a situation where gay couples are treated differently, and would in some cases be perceived to have special status over their straight counterparts.
Most mainstream political parties have committed themselves to partnership rights across the board, including the junior partner in government's commitment to "co-habitation" rights.
However, Fianna Fáil still has no policy on the issue, despite attempts to increase their pink street credibility by taking out advertisements in Gay Ccommunity News, the main LGB publication, on the same page as an article advocating civil union.
It is time for our Government to come out of its own closet and let us know where it stands on the issue.