Moral satisfaction, not practical solutions
in a judgment of November 12, 2020, the Constitutional Court (ST) recognized that in Latvia the family is not just a marriage-based union and the state has a duty to protect all families, including those where children are raised by same-sex couples.
The submission to the court was made by Evita Goša, whose same-sex partner was unable to get the ten-day paternal leave required by the labor law.
“I think that at the time, and let us be honest, even now, it is the issue of children that is the most unresolved. In society as a whole, and especially as we can see, there is an impression among politicians that same-sex couples are somehow unable to get children, or that children are not raised in these families.
“At the same time, of course, the social reality is that these couples do, and children continue to be born in these families, and these families continue to raise children, and they are their children,” Goša said.
Back when the verdict was read out, Evita said she thought not so much of herself and her family but of all those families affected by this lack of legal protection. Following the Constitutional Court's decision, Evita's partner was granted retroactive leave, but it opened up wider possibilities for other same-sex couples' families.
Although the judgment of the Constitutional Court does not affect the institute of marriage, which is defined as the union of a woman and a man, currently same-sex couples may apply to the court in order to obtain a court judgment, in which the existence of a “public legal relationship” is established or it is recognized that a particular homosexual couple has a family relationship within the meaning of Section 110 of the Constitution.
“The very fact that this family relationship is recognized certainly doesn't really produce anything substantively. It may give a very tiny moral satisfaction that at least the courts consider these families to be families. But practically it doesn't cover anything at all.
“And those families, in order to exercise a particular range of rights, by addressing the relevant authorities wherever necessary, are forced to depend on other people, what their attitude is, their understanding, their knowledge, and their desire to provide support. And then depending on that, the outcome is either a favorable decision or a rejection or a lawsuit, if this couple is tough enough to want to do it at all,” Goša said.
Currently, 46 families of same-sex couples have been recognized by court in Latvia and there are more than 20 similar applications.
There are no official statistics on the number of same-sex couples with or without children in Latvia, but that such families exist and there are many of them is a fact, Kaspars Zālītis, head of the “Dzīvesbiedri” (Life Partners) movement, said.
He also stressed that the recognition of these families in court does not give them any rights: “Families want to be recognized because they want to be visible in society, to be visible to the state. Consequently, that recognition may give rise to different rights. At present, these families, who have been recognized in court, have no rights. It's just a good gesture from the court. And people have a historical document that states that “in the name of the Latvian people, we recognize you as a family.” But beyond that, the next right will come from the other proceedings.”
Sworn advocate Matīss Šķiņķis explained that the Constitutional Court judgment required the state to establish a system that ensures legal and socioeconomic protection for families of same-sex couples. That verdict still hasn't been enforced, so families of same-sex couples have had to pursue numerous lawsuits to get their families protected in another way.
"There are cases where a family may not yet want at a given moment, or they do not need to address any particular, practical situation, but that family is simply emotionally keen to be recognized by the state as a family. In my practice, I have encountered situations most often involving the safety of children or the interests of children. Then there's the material relationship. Through this judgment, there are families who want to ensure that, for example, they will also be viewed as families by the State Revenue Service and, if, for example, partners transfer funds to each other, it will not be considered to be a personal income tax activity," said Šķiņķis.
Sworn lawyer Edgars Pastars also pointed out that the situations that same-sex couples' families want to address are very different. Similarly, many such families don't fully understand how to further fight for their rights or don't want to do so.
But Pastars stressed that all the further trials that follow the recognition of same-sex couples families are generally very costly for the state.
"Each of these proceedings is paid for by the State, we do not even count the time of the judge, the circulation of documents, or lawyers' fees – nor are they the main criterion in this case. But it is the public expenditure that is high because it is the time - the judge has to write the verdict, and the authorities have to write explanations. The state could do this much easier and more comfortably by correcting the laws and regulations that the Ministry of Justice now offers, at least some of them," Pastars said.
New legal Institute - Partnership
In order to comply with the judgment of the Constitutional Court, which emphasizes the State's duty to protect the families of same-sex couples, the Ministry of Justice submitted a package of draft laws to the Saeima Legal Commission for examination. With this, it is planned to introduce a new law institute – partnership in Latvia.
Partnership would be a new way of legally strengthening the relationship between two adults and providing them with certain types of social and economic protection. Accordingly, partners would be entitled to obtain social guarantees, income tax relief for mutual gifts and loans, and other rights.
The partnership is not meant to replace marriage.
Pastars drew attention to the fact that the package of bills did not affect property relations or children's rights. So, with this regulation in place, work will have to go on to address the main problem of same-sex couples' families having to stand trial all the time.
"This was obviously a difficult legal compromise, and this was something to start with in order to bring two registered cohabitation partners into the Latvian legal system and normative acts altogether. It certainly removes some 60%, 70% of the whole problem. But all those specific situations have not been accurately laid down in the laws and regulations, and obviously, that is not possible right now. So there will still be room for litigation there, but there will be far fewer of them," the lawyer said.
Evita Goša said that she felt conflicted about the proposed partnership framework. Not only is it too little and too late, but it won't address the fact that litigation for same-sex couples' families will continue anyway.
“How many people, working people, child-raising people, have time off to stand trial on any issue? How many people are up for it? It's just humiliating in nature.
"The Constitutional Court has called on the legislature to do something, the legislature has not wanted to do it, and all of that is left on the shoulders of individuals and institutions so that they somehow try to resolve these issues among themselves. There has to be determination there, it's a certain type of people who want to do it at all, who are also so strong to do that. Clearly, LGBT+ people are exactly the same people as all other people - with their lives, their rhythms, their opportunities, and their desires,” said Goša.
The Saeima Legal Affairs Committee decided to move the partnership framework in an accelerated manner. The Saeima will see it at its final reading on Thursday, November 9.
