On behalf of Human Rights Watch, I urge you to reject the proposed amendment to the definition of the family in Romania’s family code, a legislative initiative that would write discriminatory treatment of families into law.
Article 1 (3) of Romania’s existing Family Code states simply, in gender-neutral terms, that family is “based on marriage between spouses.” This reflects Romania’s constitutional position which in Article 48, also in gender-neutral terms, recognizes the family as founded on “marriage of the spouses.”
On February 4 the Judiciary Committee of the Senate debated a package of amendments designed to restrict the Code so as expressly to ban marriage between same-sex partners. The package was sponsored by 27 Senators, the majority from the Greater Romania Party.
At the committee session, Senator Serban Nicolae, proposed a single, all-inclusive amendment changing Article 1 para.(3) to state that: "The marriage between a man and a woman is at the basis of the family." The committee adopted this unanimously. The amendment will now go to the full Senate for consideration.
Such a deliberate narrowing of existing law—with the intent arbitrarily to restrict the rights of lesbian and gay people’s families by denying them their very acknowledgement as families under the law—is inconsistent with Romania’s human rights obligations. Encoding deliberate discrimination in the law also contradicts Article 16 of Romania’s Constitution, declaring citizens “equal before the law and public authorities, without any privilege or discrimination.” It would moreover infringe on Romania’s acceptance of international legal standards. As you are aware, Article 20 of the Constitution provides that “Constitutional provisions concerning the citizens' rights and liberties shall be interpreted and enforced in conformity with the Universal Declaration of Human Rights, with the covenants and other treaties to which Romania is a party.” It also provides that if any inconsistencies exist between national law on the one hand, and the covenants and treaties on fundamental human rights to which Romania is a party on the other, the international regulations shall take precedence. Moreover according to Article 11, treaties ratified by Parliament are part of national law.
The European Convention of Human Rights, one of those treaties to which Romania is a party, provides specific protection to families under Article 8, and the European Court of Human Rights is very clear that the legal definition of family should neither be discriminatory nor unduly restrictive. In the case of X, Y and Z v. the United Kingdom, for instance, the Court held that “the notion of ‘family life’ in Article 8 (art. 8) is not confined solely to families based on marriage and may encompass other de facto relationships.” In Karner v. Austria, the Court also ruled that discrimination in the family home against same-sex couples was a violation of the Convention. In that case Austria’s domestic legislation, which protected families renting property, did not extend to same sex couples, a fact the Court ruled was discriminatory. Most recently, in 2008 the Court found in Frette v France that discrimination on the basis of sexual orientation in adoption proceedings was unlawful.
This is also consistent with the findings of other international bodies that different forms of family deserve state recognition and protection. Article 23 of the International Covenant on Civil and Political Rights (ICCPR), to which Romania is a party, says that the family is entitled to protection by society and the State. The UN Human Rights Committee, which oversees states compliance with the ICCPR, has noted in its General Comment 19 on “Protection of the family, the right to marriage and equality of the spouses,” that “the concept of the family may differ in some respects from State to State, and even from region to region within a State, and … it is therefore not possible to give the concept a standard definition.” The UN Committee on the Rights of the Child, which interprets the Convention on the Rights of the Child (ratified by Romania in 1993), has stated that with regard to the “family environment,” the Convention reflects “different family structures arising from various cultural patterns and emerging family relationships” and “refers to various forms of families, such as the extended family, and is applicable in a variety of families such as the nuclear family, re-constructed family, joint family, single-parent family, common-law family and adoptive family.” The UN High Commissioner for Refugees has gone further and specifically recommended that the right to family unification include same-sex partners. In its view, States should adopt “a pragmatic interpretation of the family. … Families should be understood to include spouses; those in customary marriage; long-term cohabitants, including same-sex couples; and minor children until at least age eighteen.”
The “Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity,” released in 2007, draw together these international protections for family and for non-discrimination. The Principles hold that “[e]veryone has the right to found a family, regardless of sexual orientation or gender identity. Families exist in diverse forms. No family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members.”
The Principles urge states to “[e]nsure that laws and policies recognise the diversity of family forms, including those not defined by descent or marriage, and take all necessary legislative, administrative and other measures to ensure that no family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members, including with regard to family-related social welfare and other public benefits, employment, and immigration.”
The definition of family in the existing Family Code—restricting it to units based on married spousal relationships—is itself at odds with European and international standards for the protection of diverse family forms. The proposed amendment would place it still further in conflict with human rights standards.
The proposal also offends against equality in that it seeks to impose further barriers to the recognition of same sex couples and their enjoyment of the right to marry. The right to marry is a basic human right. Article 16.1 of the Universal Declaration of Human Rights affirms that “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family”—without specifying that the right be restricted to marriages between men and women. This right is also found in the European Convention (Article 12). Article 9 of the Charter of Fundamental Rights of the European Union, which is the most recent instrument setting out Romania’s human rights obligations, clearly and deliberately defines the right to marry in a gender-neutral manner: “The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.”
Articles 6 and 7 of the Treaty on the European Union and Article 13 of the EC Treaty commit the EU and all its member States to uphold human rights and fundamental freedoms and provide Europe-wide mechanisms to combat discrimination and human rights violations. Article 21 of the Charter of Fundamental Rights of the European Union prohibits discrimination on the basis of sexual orientation.
The ICCPR affirms the equality of all people in its articles 2 and 26. In the case of Nicholas Toonen v Australia, the United Nations Human Rights Committee found that both these provisions should be understood to include sexual orientation as a status protected against discrimination. The UN Human Rights Committee has held that same-sex relationships must be recognized for the purposes of pensions and other benefits in the cases of Young v Australia 9 and, most recently, in X v Colombia.10
We urge you not to enact this provision motivated by prejudice and predicated on exclusion. Civil marriage is not an exception to the protections against unequal treatment, and Romanian legislators should not write their country into a trap of preemptive and discriminatory prohibition.
Romania should be looking at ways to re-enforce safeguards against discrimination. It should not arbitrarily foreclose a path taken by states such as Belgium, Canada, the Netherlands, South Africa and Spain--all of which have ended discrimination in access to civil marriage. We also urge you to enact a family code that ensures protection to all forms of the family, without discrimination.
Lesbian, Gay, Bisexual and Transgender Rights Program