Permanent same-sex life partners and employee benefits
By Gary Watkins
1. The Judgement
Satchwell v President of Republic of South Africa and another
Constitutional Court - CCT45/01
25 July 2002
Right to equality -- unfair discrimination -- sexual orientation -- ss 8 and 9 of Judges' Remuneration and Conditions of Employment Act 88 of 1989 unconstitutional.
This judgment deals with the confirmation of a high court order declaring sections 8 and 9 of the Judges Remuneration and Conditions of Services Act and corresponding regulations unconstitutional to the extent that they afford benefits to the spouses of judges but not to their same-sex life partners.
The applicant, a judge, and her same-sex partner, have been involved in an intimate, committed, exclusive and permanent relationship since about 1986. Although they live in every respect as a married couple and are acknowledged as such by their families and friends, they are not legally "spouses" and don't enjoy the benefits accorded to heterosexual married judges.
The high court order of unconstitutionality was based on section 9(3) of the Constitution, which prohibits unfair discrimination on the grounds of sexual orientation and marital status. In the Constitutional Court, government accepted that same-sex partners are entitled to found their relationships compatibly with their sexual orientation and added that the restrictive legal meaning of the word "spouse" not only offends against same-sex partners but also against heterosexual partners in permanent life-lasting relationships.
Madala J, on behalf of a unanimous Court, finds it inappropriate to consider the latter argument, which raises questions of fact and law not raised by the applicant and not considered by the high court. The discrimination in issue here is between spouses and same-sex partners in a permanent life-relationship similar in other respects to marriage. Because marriage entails reciprocal duties of support between spouses, the Court adds a corresponding qualification to the order made by the high court: benefits should be afforded to same-sex partners of judges only where it can be shown that they have undertaken such reciprocal duties towards one another. Subject to this qualification, the Constitutional Court finds that the provisions in question unfairly and unjustifiably discriminate on the basis of sexual orientation.
Because its conclusion differs slightly from that of the high court, the Court substituted its own order: sections 8 and 9 of the Judges' Remuneration Act and the relevant regulations are to be read as according benefits not only to spouses of judges but also to permanent same-sex life partners of judges where reciprocal duties of support have been undertaken.
This represents the summary of the recent Constitutional Court decision provided by the Constitutional Court . The full text of the judgement can be found at http://www.concourt.gov.za/cases/2002/satchwellsum.shtml
2. The issues
What would appear to be the simple granting of equal rights to same-sex couples could create a paperwork nightmare for employers.
The important element of the award for employers is the finding that benefits are accorded not only to spouses of judges, but also to permanent same-sex life partners of judges where reciprocal duties of support have been undertaken.
In the Satchwell case as evidence of their emotional and financial inter-dependence, the applicant stated that:
1. She and Ms Carnelley had completed last wills and testaments in each other’s favour.
2. In May 1990 they jointly purchased the property on which they currently reside and which is registered in their names;
3. They live together on this property and consider it to be a family residence;
4. Ms Carnelley is listed as the beneficiary in all the applicants’ insurance and other investment policies; and
5. Ms Carnelley is also listed as the applicants’ dependant on Parmed, the Parliamentary Medical Aid Scheme, to which judges subscribe.
3. Applying principle to the workplace
If employers were to extend employee benefits to same-sex life partners on the same basis as the Constitutional Court Order, employees in same-sex relationships would need to satisfy three criteria:
> The partners are of the same-sex (we will not enter into the debate surrounding the legal status of persons who have undergone partial or complete sex changes)
> They are in a permanent relationship (presumably this is what is meant as "permanent … life partners")
> Owing reciprocal duties of support.
The second and third elements are usually presumed to be present in (heterosexual) marriages.
As it is, the Basic Conditions of Employment Act already recognises the right of family responsibility benefits to employees with life partners. Section 27 of the BCEA allows an employee three day's paid leave in the event of the death of the employee's spouse or life partner.
Unlike the limitation of the Satchwell order to same-sex relationships, the BCEA clearly envisages employees in heterosexual "out-of-wedlock" relationships, but does not require the additional element of a "reciprocal duty of support" (or "permanency" of the relationship for that matter). The term 'life partner" would merely seem to be a euphemism for "persons living together" or "sexual partner".
In Canada for example, same-sex relationships have been recognised for the purposes of extending employee benefits to the other partner. In the USA, following the September 11 tragedy, President Bush has signed a bill allowing death benefits to be paid to the domestic partners of fire fighters and police officers who die in the line of duty, permanently extending a federal death benefit to same-sex couples for the first time.
4. Identifying permanent same-sex life partner relationships
If an employer wishes or is required to extend eligibility for employee benefits to "permanent same-sex life partners of employees who have undertaken reciprocal duties of support", the employer could require the employee to prove that such a relationship exists. A typical solution to this would be to require the employee to complete an affidavit or questionnaire setting out the following:
> That the employee is involved in a permanent relationship with a person, and
> That the relationship is one where the partners have undertaken reciprocal duties of support, and
> Proof that the other life partner is a person of the same sex
In the Satchwell case the applicant argued that:
> Both life partners had completed last wills and testaments in each other’s favour.
> They jointly purchased the property on which they currently reside and which is registered in their names;
> They lived together on this property and consider it to be a family residence;
> The life partner is listed as the beneficiary in all the applicants’ insurance and other investment policies; and
> The life partner is also listed as the applicants’ dependant on the Medical Aid Scheme, to which the applicant subscribes.
A questionnaire designed along these lines would clearly suffice in establishing whether the partners have undertaken reciprocal duties of support.
In Canada some employers require the employee to complete an affidavit when the relationship terminates before ceasing to extend the employee benefit(s) to the life partner (while further requiring the employee to serve a copy of the affidavit on the life partner). One such example is from a well-known Canadian University.
"INFORMATION SHEET: SAME-SEX SPOUSAL EQUIVALENTS
Instructions: Please print, fill out completely, and return to your Benefits Administration Representative.
I understand the following provisions apply in regard to the enrolment of a same-sex equivalent in the benefit plan at …. University.
Signing an affidavit and producing documentation demonstrating same-sex spousal equivalent relationship is required. The Affidavit of Same-Sex Spousal Equivalent Relationship is part of your personnel file and can be subpoenaed under North Carolina law. Benefits Administration must be notified within 30 days of the end of the spousal equivalent relationship and an Affidavit of Termination must be filed.
Enrolment of another same-sex spousal equivalent within one year from the date of the Affidavit of Termination is prohibited. Income taxable to the employee includes the University contribution and the difference in cost between the current premium and the new premium including the spousal equivalent and his/her children. A spousal equivalent must be enrolled in the Health Plans prior to, or coincident with, the enrolment of his/her dependent children. A spousal equivalent can be removed from the Health Plans only during the annual open enrolment period, when the spousal equivalent enrols in another health plan, because of death of the spousal equivalent, not when the Affidavit of Termination is filed. "
The identity document of the life partner or other (medical) proof that the person is of the same sex would also presumably be sufficient evidence to satisfy the third criteria.
5. Permanent heterosexual life partners
The question, which remains is that while this approach can easily be extended to permanent heterosexual life partners which have undertaken reciprocal duties of support (by removing the third element mentioned above relating to the sex of the life partner), does it not impose a more onerous burden on these type of relationships. Where a marriage certificate is normally sufficient for an employee to include his or her spouse as a beneficiary of employee benefits, unmarried permanent relationships are required to complete questionnaires and affidavits detailing what may be regarded as very personal information. There are many married couples who would fail most if not all of the criteria used to establish that their exists a reciprocal duty of support.
Before we are faced with a further barrage of Constitutional Court awards, and to level the playing fields, we could adopt the American approach: requiring even married employees to complete the same application forms extending employee benefits to their spouses! Any human resource manager knows only to well the administrative headache this would create. Even so, at least that would avoid claims of unfair discrimination or allegations that employment policies have an "adverse impact" on non-traditional relationships. (The American approach of "adverse impact" is broader than that contained in our Employment Equity Act, and extends beyond determining the adverse impact of employment policies on designated groups only)
The Constitutional Court is fast becoming the forum in which new societal norms are being established, or as more traditional minded persons would have it, "imposed" on society. It is unlikely that the Applicant in the recent Satchwell case was driven out of any personal financial need to secure the financial interests of her life partner, but rather to establish the "in principle" rights of same sex partners. As a judge, the applicant represents one of the more privileged members of our society.
It will probably be some time before African women in polygamous marriages, or women in so-called "out of wedlock" relationships will accumulate the economic resources and "ballot box power" to fight their cause all the way through to the Constitutional Court. It was therefore not surprising that one of the first Constitutional Court cases addressing AIDS/HIV discrimination represented the interests of the so-called "gay community" whilst thousands of children and women, the economically disenfranchised community, died of AIDS with little or no public voice and no financial resources to argue their "right to life" before the Constitutional Court.
The economic power of the "pink Rand" will no doubt soon be addressing the right of same-sex marriages. Perhaps the money will be better spent on supporting the unemployed in their enforcement of the equally important principles enshrined in our Constitution, the right to work, to equality and to human dignity.