Ghaidan v Godin-Mendoza: Thinking about LGBTQ+ relationships and the law
In celebration of the UK’s LGBT+ History Month, Cambridge Law students Dominic Bielby and Gabriel Sibthorp-Quarmby use their passions for family and constitutional law to delve into the interactions between the law and LGBT+ relationships
For minority groups, the law exists as an institution of conflicting meaning; potentially either a vehicle of progress and liberation or a tool of oppression and control. This dynamic is well-illustrated in the relationship between the LGBTQ+ community and English law, for which the balance today lies in favour of equality, the march towards emancipation marked with significant Parliamentary reforms, such as the Sexual Offences Act 1967 (the ‘SOA’) which ended the criminalisation of same-sex relations between consenting adult males. However, the battle for equality plays out just as often — and sometimes with greater consequences in the courts. Mundane facts can lead to meaningful changes; as illustrated in the case of Ghaidan v Godin-Mendoza which this post shall briefly describe and then consider from a constitutional and family law standpoint.
Since 1983 Hugh Wallwyn-James had been living as a statutory tenant at 17 Cresswell Gardens, London with his long-term partner, Juan Godin-Mendoza. In 2001 Wellwyn-James passed away and his landlord, Ahmad Ghaidan, sought to evict Godin-Mendoza. Under the Rent Act 1977 (the ‘RA’), the surviving spouse of a deceased partner is entitled to take over the tenancy, with ‘spouse’ defined any person who lives with another, as ‘his or her husband or wife’. According to the Judicial Committee of the House of Lords (the forerunner to the Supreme Court) in the earlier case of Fitzpatrick v Sterling Housing Association, this provision could not be interpreted to cover same-sex couples. However, since Fitzpatrick the Human Rights Act 1998 (the ‘HRA’) had come into force. The HRA made the European Convention on Human Rights (ECHR) accessible in proceedings before domestic courts. Two of those rights were of particular relevance in Ghaidan: Article 8 guarantees a right to private and family life and Article 14 requires that all Convention rights are exercised without discrimination. According to Section 3 HRA 1998, “So far as it is possible to do so, primary legislation… must be read and given effect in a way which is compatible with the Convention rights.” Accordingly, argued Godin-Mendoza, the RA 1977 discriminated against him due to his sexual orientation — a violation of Article 8 and Article 14 — as he received unequal treatment compared with a heterosexual widower. Therefore the court was obliged to interpret the RA’s provisions as covering same-sex partners.
The case, after hearings in lower courts, went to the House of Lords, which ruled 4–1 in favour of Godin-Mendoza. The leading judgment, given by Lord Nicholls, determined that although s.3 HRA did not allow a Convention-compliant interpretation of the law in all instances, it did enable unambiguous provisions to have words added or removed to achieve compliance. However, this power was not unlimited; such an interpretation would have to follow ‘the grain’ of the legislation, for otherwise the courts would be overstepping their constitutional role to interpret (not make) the law. On the facts, the RA 1977 could be read as covering Godin-Mendoza, on the basis that the intention of the legislation was to protect cohabiting couples, irrespective of sexual orientation.
Although Ghaidan had significant, beneficial consequences for other cohabiting homosexual partners, the case raised an acute issue of constitutional law. Two key principles govern the judicial-legislative relationship: Parliamentary sovereignty and separation of powers. The former describes the ability of Parliament to enact any and all laws that it so chooses. The latter describes the limitation of the branches of the state to their assigned roles: the courts interpret the law and Parliament makes law, not vice-versa; ensuring no single branch can dominate. The dissenting judge in Ghaidan, Lord Millett, whilst accepting Lord Nicholl’s general description of s.3, determined that its application on the facts led to an unacceptable breach of the two principles. The RA 1977 was inherently gendered on the basis that the reference to ‘his or her husband or wife’ could only refer to a heterosexual relationship because, at the time, a marriage could only be between heterosexuals. Even though the RA 1977 had previously been interpreted to cover unmarried heterosexual couples, Lord Millett determined that the Act could not be extended to homosexual couples as they could not be described as ‘husband or wife’ due to the heterosexual core of marriage. Accordingly the Court was actually breaching Parliamentary sovereignty and separation of powers; replacing Parliament’s intention with an impossible interpretation. It may be asked: did the court overstep its constitutional boundaries in Ghaidan and, if it did, did the outcome justify it?
Ghaidan forms a vital piece in the puzzle that is the development of English marital law. The accommodation of social institutions, in this case intimate relationships, by the law involves an intersection between the domestic and the legal. How does the law regulate the very personal lives of its subjects? As we shall see, the law sacrifices personal autonomy for the protection and encouragement of certain relationships.
Following the SOA 1967, and the gradual improvement of social attitudes towards same-sex couples, the law slowly modernised. The first landmark case was Fitzpatrick, in which Lord Nicholls stated that there was “no rational… basis” for the exclusion of same-sex couples from the defintition of family under the RA 1977 (a different class to spouse or spouse-like, attracting fewer protections). Ghaidan soon followed. The Civil Partnership Act 2004 then created a marriage-like institution, the civil partnership. Formalisation of relationships was, in practice, separate but equal, a description which contains an inherent message of difference. We must ask whether separate but equal truly entails equality at all. Subsequently, the Marriage (Same-Sex Couples) Act 2013 famously widened the scope of marriage to same sex couples. Recently in Steinfeld v Secretary of State for International Development, the inability of mixed sex couples to enter a civil partnership was declared incompatible with Art.14 ECHR, prompting Parliamentary reform.
Why is the legal recognition of certain relationships so important, besides obvious concerns of equality? The truth is that the law and social attitudes are intertwined. Like the terms “rapist” and “terrorist”, “marriage” as a legal concept carries weighty social baggage. Marriage not only confers benefits on those divorced or who have been widowed; it is often associated with stability, respectability, commitment and unconditional love. The celebrations and the large amount of same sex marriages following the 2013 Act indicated a desire for same-sex marriage. But, in addition to conservative opposition, queer activists also opposed the development. So why this unlikely agreement?
According to Allison Diduck, Queer relationships are “disruptive”, showing an unconventional diversity incompatible with the cultural heteronormativity of marriage. Decisions bringing same-sex relationships within the scope of marriage suppress this. Applying heteronormative institutions to queer relationships thus damages a valuable aspect of these relationships. Marriage was historically and culturally repressive, and we must ask ourselves whether there is still a cultural hangover today. In Ghaidan, the emphasis of the majority was on the fundamental similarity of same and mixed-sex couples. Should this be celebrated? The counter-point is that many queer couples wish to be treated as “ordinary” rather than at the head of a radical movement of diverse relationships. Is removing their chance for “normality” the price to pay for overturning oppressive institutions? The extension of marriage to same-sex couples may also unwind its heteronormativity, without dismantling it. These sociological questions show the law cannot deal in abstract principle alone.
If marriage is repressive, should the law encourage it? It currently does, providing financial remedies on separation for divorcing spouses and not ex-cohabitees. Some argue that marriage creates stability in relationships, as more marriages are stable than unmarried couples. But it is also possible that committed couples are more likely to seek out legal status. If so, then of course married couples will tend to be more stable. Coercing uncommitted couples into marriage may change little about their relationship, aside from embittering the inevitable split.
How could the state take a different approach to relationships? Some suggest a contract-like system, with couples able to choose the terms of their partnership. Others propose a system where remedies are given based on the facts of a relationship, not legal status. The former allows couples to have freer choice; the latter protects couples irrespective of legal status. The latter may be preferred, as the former risks reducing protection, as one party may encourage the other to waive financial protection on divorce, for example. However, the latter is more uncertain, certainty being one of law’s most important aspects.
It may also be too much — marriage is societally ingrained, and total upheaval may not be needed. Couples could be educated as to legal marriage requirements and the benefits conferred (alarmingly, 56% of British Social Attitudes Survey participants in 2000 believed prolonged cohabitation gave a couple the same rights as a married couple; spoiler alert, it doesn’t!). Ground up reform is impractical. It’s all well and good to think in the abstract, but any decisions made will have real world impacts, and will require real world action. And lawyers can be in a position to push through that change — just look at Ghaidan.
Editor’s note: any questions or comments relating to this article maybe directed to Messrs Bielby (djb250@cam.ac.uk) and Sibthorp-Quarmby (gjs56@cam.ac.uk).
Editor’s correction: an earlier version of this article incorrectly identified Mr Bielby as an exchange student to Cambridge rather than a Cambridge student who has participated in the Erasmus+ scheme with our continental partners. The introduction to the article has been amended to reflect Mr Bielby’s Cambridge affiliation.
