On 21 February 2017, the Court of Appeal dismissed the legal challenge for extending Civil Partnerships to heterosexual couples. The appellants, Rebecca Steinfeld and Charles Keidan, had argued that the current legislation is discriminatory against opposite sex couples under the Human Rights Act 1998.

Under the Civil Partnership Act 2004, only same sex couples can be eligible to enter into a Civil Partnership. This means that same sex couples have the option to either enter into a Civil Partnership or marriage, in contrast to opposite sex couples, who can only rely on marriage for legal protection. This means that benefits such as inheritance and pension based on your partner’s national insurance contribution are only available to opposite sex couples through a marriage. Furthermore, opposite sex couples, who are not married, are excluded from multiple tax advantages in regards to gift and inheritance tax, which are available to same sex couples through Civil Partnership.

Therefore, on the face of it, the current English legislation is in violation on Article 8 (the Right to Respect for Private and Family Life) in conjunction with Article 14 (the Prohibition of Discrimination) of the European Convention on Human Rights, as there is a difference in treatment between same and opposite sex couples. As it stands it was argued before the court that the current legislation does not reflect the reality of modern family life. Many couples feel that marriage is not for them due to its arguably archaic tradition and currently an estimated of 3 million couples cohabit in England with 1.8 million having dependent children, all of which currently lack the legal protection of marriage and choice of Civil Partnership.

The High Court had stated that the restriction on Civil Partnerships does not constitute an obvious disadvantage, since the state is still providing an alternative means of recognition in the form of marriage. As to the jurisprudence of The European Court of Human Rights on the other hand, it has historically given States a broad margin of appreciation regarding social matters. Therefore the current law would not necessarily constitute a violation.

Nevertheless, in upholding the judgment of the High Court, the Court of Appeal found that there was a potential violation of the couple’s human rights under the Human Rights Act 1998. The Court found that the High Court had been wrong in its ruling that the couple’s rights were not violated since the appellants could achieve the same legal protection by entering a marriage.

The question remaining for the Lord and Lady Justices was whether the Secretary of State was justified under article 14 to maintain the bar for heterosexual couples. The Government had argued that it needed more time to collect data on the formation and dissolution of Civil Partnerships in order to make a decision of the future of the concept. The Court of Appeal found two to one that it was proportionate for the Secretary of State to gather more data in order to make a more informed decision on the future of Civil Partnerships. Lady Justice Arden dissented and found that the Government’s ‘wait and see’ policy did not strike a fair balance since the current policy is open ended in time and does not address the question of whether opposite-sex couples should have the right to enter Civil Partnerships.

So where does this take us? The finding of the Court would suggest that the Government’s position is not sustainable for an extended period of time. All three judges rejected the argument that marriage was a viable alternative to a Civil Partnership and that the current legislation is discriminatory.

The couple in question have confirmed they intend to appeal to the Supreme Court. It will be interesting to see if the policy remains proportionate in the view of the Supreme Court and what type of policy response the Government will issue, in light of this judgment.