However, the bill does not include everything that the Equal Marriage campaign in Scotland is calling for, and we believe that further improvements could be made. We are seeking five small but important amendments to the bill, which are outlined below. More details may be found here.
The provisions of the bill around gender recognition need some changes to provide fairness and equality
As the bill stood originally, a married person would require the consent of their spouse to obtain gender recognition. In our view, gender recognition should be available with or without the spouse’s consent, because it is a matter personal to the trans person. It is the re-registration of the marriage after gender recognition that should require the consent of both spouses, since that is where both spouses have a direct interest.
The bill was also originally missing a provision that was added to the corresponding English legislation, allowing a person to obtain gender recognition with simpler evidence requirements if they have been transitioned for at least six years. We would also like to see the minimum age for applying for gender recognition brought into line with the minimum age for marrying in Scotland, that is 16.
We pressed for amendments to the bill to make these changes. We are very pleased that the Scottish Government brought forward an amendment at stage 2 of the bill to allow simpler evidence requirements for long term transitioned people, which was agreed unanimously. We are also very pleased that the Parliament’s Equal Opportunities Committee, at stage 2 of the bill, agreed unanimously to an amendment by Linda Fabiani MSP removing the requirement for spousal consent.
On the reduction of the minimum age for gender recognition to 16, the Parliamentary authorities ruled that that was not within the remit of this bill, which only relates to marriage and civil partnership. However, at the Parliament’s Education and Culture Committee on 21st January 2014, the Scottish Government Minister for Children and Young People, Aileen Campbell, pledged that the government would seriously consider this issues and would consult and seek expert advice on it.
Marriage as provided by the bill is not entirely gender-neutral
Some of this is unavoidable. We agree that the law should allow religious bodies that conduct mixed-sex marriages to choose freely whether or not to conduct same-sex marriages. This means that the legislation that specifies how religious bodies have their celebrants approved to conduct marriages cannot be completely gender-neutral.
However, as it was originally, the bill introduced an unnecessary rule that all mixed-sex marriage ceremonies must use gender-specific language (“I declare that you are now husband and wife”). In contrast, same-sex marriages will use gender-neutral language (“I declare that you are now married”), and gendered terms like wife and wife can optionally be included by agreement with the marriage celebrant. We agree that religious organisations should be free, if they wish, to conduct all their mixed-sex marriages using the gender-specific terms husband and wife. And those terms should also continue to be available for all couples who want to use them. But it is wrong to impose those terms where the couple would prefer to use the gender-neutral language and the organisation conducting the marriage agrees to do that.
We therefore pressed for an amendment to the bill to allow for this. We were very pleased that the Parliament’s Equal Opportunities Committee recommended that this change be made, in their stage 1 report on the bill. The Scottish Government then proposed an amendment to the bill to allow gender-neutral marriage ceremony wording, and the amendment was agreed by the Equal Opportunities Committee unanimously on the first day of stage 2.
Civil partners from outwith Scotland are barred from marrying
The bill allows same-sex couples to come to Scotland from abroad and marry here, whether or not their home country recognises same-sex marriage. And couples who are already in a civil partnership will be able to marry here, which changes their civil partnership to a marriage. But as in the original version of the bill that is only allowed if the couple registered their civil partnership in Scotland. We believe that couples who registered a civil partnership abroad and then moved to Scotland should be able to marry here also. Without that, they may in effect be barred from marrying altogether, because returning to their country of origin to dissolve their civil partnership may be completely impractical.
We have been pressing for an amendment to the bill to allow this, and we were very happy that the Parliament’s Equal Opportunities Committee recommended that this change be made, in their stage 1 report on the bill. The Scottish Government then proposed an amendment to the bill to allow couples who registered a civil partnership outwith Scotland to marry here, and the amendment was agreed by the Equal Opportunities Committee unanimously on the first day of stage 2. The details of how this will work will be in regulations that the Scottish Government will consult on and put in place before the bill comes into effect.
The bill does not allow mixed-sex civil partnership
Civil partnership will continue to be available only to same-sex couples.
Opening civil partnership to all couples regardless of gender has always been part of Scotland’s Equal Marriage campaign. We very much welcome the commitment made by the Scottish Government on 27th June 2013, to conduct a review of civil partnership law, “driven by the need to consider the position on opposite sex civil partnership”. We will be pressing for that review to start without delay, and, once it is complete, for prompt legislation to open up civil partnership in Scotland to couples regardless of their gender. This will also make it possible for a person in a civil partnership to get gender recognition without the need to change their civil partnership to a marriage.
Same-sex married couples will not receive the same benefits from private sector pension schemes as mixed-sex married couples do
This is not a problem with the Scottish bill itself, because this area of law is reserved to Westminster (that is, not devolved to the Scottish Parliament). There were unsuccessful attempts to amend the UK Government’s Marriage (Same Sex Couples) Act 2013 to ensure equal pension benefits for same-sex and mixed-sex married couples. The UK Government opposed that, but did agree to a review of the remaining pension inequality, to report by 1st July 2014.
We will contribute to that review, and we will press for the inequality to be removed as soon as possible after the review finishes, by GB wide statutory instrument.