07/20/2009
Same-sex marriage / mixed-sex civil partnership
Scotland currently has a segregated family law system in which marriage is available only to mixed-sex couples, and civil partnership is available only to same-sex couples. The Equality Network believes that this segregation is discriminatory, and that marriage should be opened up to same-sex couples and civil partnership to mixed-sex couples.



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There are currently two Scottish Parliament petitions calling for same-sex marriage. The Parliament's Public Petitions Committee is considering these two petitions together. At their meeting on 8th September, the Committee decided to write to the Scottish Government again about the petitions, seeking responses to specific points raised in the petitions and in the Committee's discussion of them.

The first petition is organised by the LGBT Network, and was signed by 1007 people. It was considered by the Parliament's Public Petitions Committee on 17th March, 16th June and 8th September 2009. The Equality Network has made three submissions to the Committee in support of the petition. Our first submission said why same-sex marriage and mixed-sex civil partnership are needed. Our second submission said why we think the legislation for same-sex marriage would be relatively simple for the Scottish Parliament to do. Our third submission responded to criticism of the proposals from the Scottish Government. A number of other organisations have also made written submissions to the Committee.

The second petition is organised by the Equal Marriage Campaign, which was established by NUS Scotland's LGBT Campaign. This petition calls for same-sex marriage and mixed-sex civil partnership. It was signed by 1309 people, and was first considered by the Public Petitions Committee on 8th September.

The Equality Network strongly supports these petitions. We hope that the petitions will result in a formal study of the issue during the next year, taking evidence and consulting. That could lead to a clear plan for legislation in Scotland.

The key issues

The Civil Partnership Act 2004 came into effect in December 2005. In autumn 2006, the Equality Network consulted our network, asking "tell us about your priorities for LGBT equality over the next few years". The priority mentioned most was equality in the education system. The second most mentioned priority was same-sex marriage. Based on this, and further consultation that winter, a call for same-sex marriage / mixed-sex civil partnership was included in the Equality Network's manifesto for 2007 to 2011.

At the first National LGBT Forum meeting, in December 2008, there was a debate about whether same-sex marriage should be a priority for LGBT campaigners in Scotland. At the end of the debate over 80% of people present thought that it should be a priority. Further discussion took place at the National LGBT Forum in March 2009, where 22 of 24 participants said that same-sex marriage / mixed-sex civil partnership is an issue we should be campaigning on.

The Equality Network's position is that marriage and civil partnership should both be available for couples to choose, regardless of their genders. There are three key reasons for this:

  • Religious freedom. People who marry can choose between a civil marriage conducted by a registrar, or a religious or humanist marriage conducted by a religious or humanist celebrant. Civil partnership can only be conducted by a registrar, and the ceremony cannot have any religious content. A number of religious and belief communities who conduct marriages in Scotland would like to be able conduct legally effective same-sex marriages. These include the Metropolitan Community Church, the Pagan Federation, and humanist celebrants. Same-sex couples with a religious or humanist belief are denied the opportunity to have their relationship solemnised in the way that is appropriate for their religion or belief. Religious and belief bodies authorised to conduct marriages should be able to conduct same-sex marriages if they choose to do so. Those religious bodies that oppose same-sex marriage should be free to continue to conduct only mixed-sex marriages.
  • Discrimination in the law. Although the legal effects of marriage and civil partnership in the UK are virtually identical, there are two important legal difficulties:
    • A transsexual person who is married or in a civil partnership cannot get a gender recognition certificate (legally recognising that they have transitioned gender) unless they divorce or dissolve their civil partnership first. That is because the granting of gender recognition would create a same-sex marriage or a mixed-sex civil partnership, which the law does not allow. This rule is the only situation where the state intervenes in a person's marriage and forces them to divorce when they don't want to, or miss out on their fundamental right to recognition of their true gender
    • UK civil partnerships are not recognised in many foreign countries, and there is no international framework in place for recognition of registered partnerships between countries. Same-sex marriages are also not recognised in many countries, but there is at least an existing framework of law on international marriage recognition
  • Ending enforced segregation. In 1954 the US Supreme Court declared (Brown v. Board of Education of Topeka) that racially segregated schools were unconstitutional, ruling that separate provision by race denied real equality. Since 2000, the Supreme Courts of Canada, South Africa, Massachussets, California, Connecticut and Iowa have all made similar rulings that a segregated civil partnership / marriage system denies real equality. In part this reflects the practical fact that civil partners do not always get treated with the same respect for their relationship as married couples do, and in part it reflects the fact that a segregated system, by its very nature, stigmatises people and reinforces a second class status.