Every now again I see a senior citizen at cafe counter responding to a bewildering array of options with a pleading “Just an ordinary coffee, please.” Such encounters are fractals of a pattern that recurs in every corner of the modern world. There is a proliferation of choices in almost every aspect of our lives, including ones as intimate as gender and sexuality. Believing that people are either gay or straight is now as naive as thinking that coffee is either black or white.
When it comes to the legal arrangement for cohabitation, however, we’re closer to the world of instant or ground than the one in which people recognise their cisgender privilege and understand why even LGBTQ+ leaves some people out.
Same-sex marriage only became possible in 2014, following the introduction of civil partnerships for same-sex, and same-sex only, couples in 2004. Now, following a Supreme Court ruling last week, anyone wanting to make a legal commitment will soon be able to opt for marriage or civil partnership.
This greater inclusivity is to be welcomed. But the current two-option menu is in one sense remarkably restrictive: it is designed only for couples in what is presumed to be a sexual relationship. Start to ask why this should be so, and it’s hard to find a good reason.
Marriage and civil partnership laws have evolved haphazardly out of historically and culturally ubiquitous social conventions for human pair-bonding. Religious morality has often been the official justification for these conventions but the more fundamental reason for their existence across cultures with different religions (or none) is surely children. Any functioning society has to make parents responsible for their offspring. Marriage is a way of binding parents or parents-to-be together in a way that is publicly visible, thereby making them accountable.
Relatively recently, the connection between pair-bonding and reproduction has weakened. There have always been couples who did not reproduce—rarely out of choice; mainly because of the lack of one. But as soon as humans found reliable forms of contraception, many decided to use them indefinitely. Once the link between sex and reproduction was broken, homosexuality came to be seen less as an aberration and more as simple another way of expressing our sexuality.
This new approach to sex also changed the function of legal marriage. It no longer existed primarily to ensure that parents were responsible for their children but to regulate the combining of resources a long-term relationship entails, not least to protect both parties in the event of a relationship breaking down.
Symbolically, it also became a sign of society’s approval and acceptance of a long-term commitment, whether that involved starting a family or not. Civil partnership was created largely to appease those who wanted marriage to retain its older, narrower function but who could see there was no justification of denying its newer functions to people of all sexualities.
But pulled up from its child-rearing roots in marriage, it has become arbitrary who is granted the legal protections of civil partnership and who is not. The dividing line is—crudely—those presumed to be in a sexual relationship and those who are not. Marriage and civil partnerships are both for lovers only.
Debates over civil partnerships have until now understandably been seen primarily as debates over equality. Because of that, we have missed the surprising truth that people on all sides of the debate share an assumption that our most important non-blood relationships must be with people we have, or at least have had, sex with.
But why restrict the benefits of such a partnership only to people whose bond typically has a sexual dimension? Why not, for instance, allow siblings or just very close friends to have the same rights as those in civil partnerships?
For example, I know someone who has lived with her sister since leaving university. They have thrown in their lot with each other more deeply than many lovers. But there is no legal way of formalising the special bond they have. If one were to die or become incapable of making life or death decisions, the other would not have any special legal status to help them manage it. If you ask why not, no good answer is forthcoming.
We might instinctively feel as though there is something absurd in treating friends or family members as though they were spouses, but that is not an argument against giving them the same rights as spouses.
We could take this further and ask why the maximum number of people in such an arrangement must be two. If three people, related or not, decide to commit to platonic cohabitation indefinitely, should we not grant them certain rights in the event that one of them dies, or decides later to pull out of the agreement?
A sex-centric concept of a civil partnership makes no sense if one of its legitimate functions is only to provide partners in a relationship with certain legal and financial benefits and protections. Even some happy marriages are sexless. Free from a religious or moral obligation to reproduce, whether or not a couple has sex is rightly nobody’s business.
If there doesn’t seem to be any demand for non-sex based civil partnerships right now that could be because the assumption that the only partnership worth formalizing is a sexual one stops us seeing the possibility of an option that many of us would gladly take if available.
The assumption of the paramount importance of sex highlights the unfinished work of the sexual revolution. A society is only truly sexually liberated when the sexual preferences respected include the preference not to have sex at all.
Taboos around different kinds of sex have lifted but now those treated with suspicion are the ones whose lives are not built around the people they sleep with.
People of all sexualities are welcome to form civil partnerships, but only if their sexuality is key to that partnership. Polyamory is more socially acceptable than celibacy or a sexless marriage; bisexuality more celebrated than asexuality.
Civil partnerships were supposed to reflect a retreat from the law from what goes on in people’s bedrooms, but that retreat is not complete all the time the law is still based on the assumption that something goes on there. It’s time to add to the old mantra “your rights should not depend on who you sleep with” the clause “or if you sleep with anyone at all.”