Same-sex adoptions in private international law: Good news from Italy

Dr Guido Noto La Diega is a Lecturer in Law at Northumbria University. Please tweet comments to @guidonld or email the author: guido.notoladiega@northumbria.ac.uk.

While same-sex marriage is visibly gaining momentum (see Australia, Austria, Germany and Malta this year), many countries have not fully recognised the rights of same-sex couples. This usually takes the form of civil unions (e.g. Italy and Greece) or of no recognition (e.g. Poland and Lithuania). However, other solutions are also possible. For instance, some countries recognise only same-sex marriages celebrated abroad (e.g. Armenia and Estonia).

In Northern Ireland, adoption has been available to same-sex couples since 2013, even though the Northern Ireland Assembly voted against same-sex marriage (Northern Ireland Human Rights Commission, Re Judicial Review [2013] NICA 37). However, in many countries where there is no same-sex marriage, these couples cannot access adoption. This is the case in Italy, even though the case that is commented on here brings some good news.

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Don’t Call Me “Daddy” – Lesbian Parenthood and Nationality

Dr. Sylvia de Mars, Lecturer in Law at Newcastle Law School, Newcastle University

As of midnight on the 14^th of March 2014, same-sex couples living in the United Kingdom who were married in a foreign jurisdiction where said marriage was recognized are now also recognized as married in the United Kingdom.  This marks a general trend in Western Europe of the increasingly recognised right for same-sex couples to form legal relationships; but, unfortunately, embracing gay marriage is only a starting point for establishing full legal equality for same-sex couples.  Other, related rights frequently lag behind.  What lingers is institutionalised discrimination on the basis of both gender and sexual orientation, largely because the government in question “forgot” to think beyond the first rights granted.  The following contribution discusses a particular area of law where these problems remain in many countries, using the United Kingdom and the Netherlands as examples: namely, pervasively heteronormative and patrilineal structure of nationality laws.

The standard mechanism for the passing of nationality to a child in most countries is via the birth (or biological) mother: the child is born with the nationality of the mother.  Beyond this, additional transmission mechanisms differ per jurisdiction; some countries (such as the United States, and until recently, the Ireland and Belgium) grant nationality to all children born on national soil (as per jus soli), and others (such as the United Kingdom) grant nationality to children because their parents have lived in a given jurisdiction for a significant period of time and are thus ‘settled’ there.

Where both parents are nationals of the country they live in, the nationality of their children is straight-forward.  This will be the situation that an overwhelming majority of childbirths worldwide take place in; however, determination of nationality has always been more complicated, even for heterosexual couples, when the birth mother is not a national of the country that the baby is born in.  In the United Kingdom, for instance, if the (foreign) birth mother and the (British) father are not married, their child does not automatically have British nationality; the father’s paternity needs to be proven (by registering the father on the birth certificate, which the birth mother must agree to do) before nationality can be passed on.  The Netherlands’ current nationality law reflects a similar principle; however, prior to 1985, Dutch nationality was only passed through patrilineal descent—consequently a Dutch mother and a foreign father could not give birth to a Dutch child, even if married before the law.  Nationality law that involves binational couples has thus historically been complicated.  However, the concept of what a “couple” was for the purposes of these laws was a straight-forward issue—mothers and fathers were either married or not—until the legal recognition of gay partnerships became a reality in both the Netherlands and the United Kingdom.

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Inherently Brief: Volume 25 (Part 2)

Snapshots of law, gender and sexuality news from the past couple of weeks.

Gender Segregation in Universities

Kate Galilee (Durham University)

Universities UK (UUK), an organisation representing over 130 higher education institutions is seeking a legal ruling on the issue of voluntary gender segregation at university events.

In guidance issued by the organisation to its members last month, it was stated that it would be legally permissible for external speakers to request that audiences be voluntarily split by gender. Provided men and women are split side to side rather than back to front, the guidance states that no gender inequality would be involved and therefore segregation would be permitted.

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Inherently Brief: Volume 23

Snapshots of law, gender and sexuality news from the past couple of weeks.

Fear of imprisonment for homosexuality: a ground for asylum in EU member states

Gita Keshava (Durham University)

The European Court of Justice (ECJ) has ruled that people who fear imprisonment on the basis on their sexuality in their home country have grounds for seeking asylum in all EU member states. The Court ruled that homosexuals may constitute a “particular social group” and that criminalisation or imprisonment can be considered persecution provided that it is applied in reality. The existence of a ban on homosexuality cannot itself be a ground for approving an asylum request. However, individuals cannot be expected to hide their sexuality to avoid persecution as to do so would amount to rejecting a fundamental characteristic of one’s identity.

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A History of the Fight for Same Sex Marriage in New Jersey

Jesse Bachir is a second year law student at Durham Law School. He blogs at Queer Human Rights.

On October 21^st at 12:01am EST, dozens of couples across New Jersey prepared to exchange vows as equal marriage finally came to New Jersey. Later that same day, it was announced that New Jersey Governor Chris Christie would drop his appeal against equal marriage to the New Jersey Supreme Court after a motion for a stay of execution of the lower court’s decision was denied. Following this, the Christie administration announced it would institute equal marriage as being the law New Jersey.

Civil Unions in New Jersey

This victory in New Jersey comes after more than a seven years of fighting for equal marriage rights. Back in 2006, the Supreme Court of New Jersey decided in Lewis v. Harris that, under the New Jersey State Constitution, same-sex couples were entitled to all the same legal rights and benefits as opposite-sex married couples. However, the Supreme Court left it up to the legislature as to whether or not to grant marriage or a similar union granting to same legal rights and benefits to same-sex couples. The legislature chose the latter and created civil unions.

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It Gets Worse: The Queer Feminist Case Against Inclusion

Dr Sarah Keenan teaches and writes on property, feminist and critical race theory at SOAS School of Law.

This piece was originally posted on halfinplace and is reproduced here with permission and thanks.

This is the text of a speech I gave at the SOAS teach-out as part of the UCU strike on October 31, 2013:

It’s great to see you all here at the teach-out today.  As you know, a strike is one strategy in trying to fight the neoliberalisation of higher education, but any political campaign that aims to fight or destroy something needs to also actively think about and start creating what it wants to build instead.  By working together to make this teach-out happen the SOAS SU and UCU haven’t just helped to protest against unfair pay for university staff, but have actually created an open, free and diverse space where students and lecturers can discuss ideas, which is exactly the kind of space that we want our universities to be.

By doing that and being here at the teach-out today creating our own space, we are resisting the politics of inclusion.  Those of us who are trying to achieve real social change need to be careful that we aren’t just asking or fighting to be included in systems and institutions that are already broken.  That means for those of us who occupy marginal identity categories, that we need to avoid political campaigns that aim for our inclusion in systems and institutions that are elitist, and/or that are sexist, racist, homophobic, ableist or otherwise violent.  Those systems and institutions weren’t built by or for marginalised and oppressed people, and inclusion in those systems won’t end structures of power that produce gross social and economic inequality.

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Why the Marriage (Same Sex) Act 2013 does not bring Marriage Equality: The Case of Trans* People

Kat Gupta is a researcher at the University of Nottingham and recently completed a PhD in corpus linguistics, focusing on the representation of the women’s suffrage movement in The Times newspaper between 1908 and 1914. Kat also campaigns on trans* and queer issues.

The Marriage (Same Sex Couples) Act 2013 received its Royal Assent this month to the joy of many cis-gender lesbian, gay and bisexual people in same sex relationships and the dismay of many transgender people. While same sex marriage is an important step for many people, allowing them to celebrate their relationship, in its current form it fails transgender people. Trans* activists have already written about what the Act means for trans* people: Zoe O’Connell has summarised where the Marriage (Same-Sex Couples) Act 2013 leaves trans* people, while Sarah Brown has further discussed its implications for trans* people.

In this post, I will discuss three of its main failings: stolen marriages, the spousal veto, and the Act’s language of binary gender. As the Act is written in terms of binary gender – something that I find deeply problematic and will discuss further in the third section of this post  – I will use its language of “opposite sex” and “same sex” relationships. An opposite sex relationship is defined as one between a man and a woman; a same sex relationship as between two men or two women. These definitions can be found in Schedule 3, Part 2 of the Act.

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Same Sex Marriage in the Supreme Court and the Obama Administration’s Direct Involvement On Prop 8?

Durham Law Student, Jesse Bachir, explores a recent development in the current US Supreme Court case on same sex marriage. An earlier version of this post was published on Queer Human Rights and is posted here with permission and thanks.

This week, the US Supreme Court will be hearing two cases on the issue of same sex marriage. Today, it will be hearing Hollingsworth v Perry, a case deciding whether California’s Proposition 8, a State amendment to the Californian Constitution which states that only marriage between a man and a woman is valid or recognised in California, violates the Equal Protection Clause of the Fourteenth Amendment.

In advance of this hearing, Obama submitted an amicus brief with the Supreme Court asking them to the ban on equal marriage in the Prop 8 case. This move was a lot more monumental than most people realise – the President of the United States had intervened in judicial matters.

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Same-Sex Marriage in the United States – Why do States’ Rights trump Gay Rights?

Durham Law Student, Jesse Bachir, explores the legal position of same-sex marriage in the US.

Same-sex marriage has seen some very good progress lately, especially with the recent election. In fact, the election brought same-sex marriage to Maine, Maryland and Washington by referendum – the first time in US history that same-sex marriage has been legalised via popular vote. Minnesota voters also defeated a proposed constitutional amendment to ban same-sex marriage at the ballots during the election. All of this, along with openly gay, lesbian and transgender representatives being elected to national and state legislators, as well as President Obama being elected for a second term, made this past election a very exciting time for the LGBTQ community. However, there are still some major hurdles to overcome for same-sex marriage in the United States

Marriage in the US 101

Very briefly, it is important to note the distinction between state and federal powers in the United States before continuing with any discussions of same-sex marriage within the US. Marriage is a right reserved by the states – meaning that they have the power to legislate as to the definitions and requirements of marriage. If you want to get married, you must go to the state and follow their particular rules governing marriage.

Once you are married, you are conferred apposite rights and privileges by the state as well as the Federal Government. However, it is up to each individual state to determine who is married within their jurisdiction – meaning that in order to gain access to federal marriage rights, you must first have access to state marriage rights.

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Proposals for Same-sex Marriage in England and Wales: A Good Effort, But Must Try Harder

Neil Cobb

The coalition government has begun its consultation on equal marriage for gay people in England and Wales, after announcing it is already persuaded by the arguments in favour of same-sex civil marriage. This follows the Scottish Government’s own proposals last year in which it also gave its provisional support for equal rights to civil marriage in Scotland.

“I don’t support gay marriage despite being a Conservative,” David Cameron said in a recent speech. “I support gay marriage because I am a Conservative.”

Of course, Cameron’s soundbite will feed fears that the right to marry is a retrograde step for gay people that ignores the institution’s oppressive history and assimilationist power.

For many others, though, equal marriage will be welcomed for finally challenging the symbolic inequality in relationship recognition that has persisted in the UK since the Civil Partnership Act in 2004.

That the coalition and Scottish government are both broadly in favour of equal marriage marks a significant shift in UK gay politics. In particular, the consultation positions the coalition in direct opposition to extreme religious forces, especially a virulently homophobic Catholic church.

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