Equality and Human Rights Commission

17 March 2011

The Equality and Human Rights Commission Scotland today launched a new report calling for access to equal marriage for same sex couples in Scotland.  The report is a result of a symposium recently held by the Commission to investigate perceived barriers to equal marriage and suggest ways forward for legislators. 

Scotland currently has a segregated family law system in which marriage is available only to mixed-sex couples, and civil partnership only to same-sex couples.

In England and Wales, the UK Government has announced public consultations on proposals to hold civil partnerships on religious premises and to open up civil marriage to same-sex couples and civil partnership to mixed-sex couples.  However, because marriage and civil partnership are devolved issues, these proposals apply to England and Wales only.

The report calls upon the Scottish Government to consider these disparities and to take steps to bring about equal access to marriage in Scotland.  The evidence and research contained within the report aims to inform their deliberations.

Current legislation in Scotland discriminates against same-sex couples and transgender people and this, as the report outlines, has significant detrimental impacts :

• Same-sex couples cannot involve their faith in the process for formalising their relationships.
• Transgender people are required to divorce if they wish to gain full gender recognition, as the law does not allow same-sex marriage or a mixed-sex civil partnership.
• Evidence suggests that civil partnerships are seen as having less value and status than marriage.
• Same sex couples do not have the same choices as mixed sex couples

However, it is not just discrimination that provides a powerful case for change -   growing public and political support also gives a useful context for delivering it.  The report highlights that : 

• Polls in Scotland show that 53% of people supported same-sex marriage in 2006, and that this figure had grown to 62% in 2009.  Progress towards equal access to marriage in Scotland and the UK has been steady since 2003
• Support is more marked within younger age groups and therefore likely to continue to grow as the population regenerates
• In all of the major religious denominations in Scotland, a majority are supportive of same-sex relationships and marriage
• Evidence also shows a clear majority of voters across all the main political parties in Scotland support same-sex marriage
• Put to a vote, almost 70% of participants at the symposium favoured the option of both marriage and civil partnerships being available for all

The report presents a series of recommendations for making equal access to marriage a reality while also taking into consideration possible religious implications.  Recommendations include :

•  In order to uphold religious freedom for all, an opt-out ‘conscience clause’ is proposed for religious bodies and celebrants not wishing to perform same-sex marriages
• In order to ensure the widest choice, civil partnership should be retained and legislation should be introduced to allow same-sex couples to marry
• Following the election in May 2011 an Equal Access to Marriage (Scotland) Bill should be brought before the Scottish Parliament that would allow same-sex marriage in Scotland
• If the Scottish Government fails to introduce legislation to allow same sex couples to marry, the possibility of (a) a Committee Bill or (b) a Member’s Bill should be explored.
• The Scottish Government should work with the Westminster Government to ensure a mechanism is in place that means a transgender person living in Scotland does not have to divorce, or end their civil partnership, to gain full gender recognition.

Kaliani Lyle, Equality & Human Rights Commission Scotland Commissioner said : 

‘Despite shifts in public opinion and indeed legislation in the UK, same-sex couples in Scotland continue to be denied access to marriage itself.  It’s clear from statistics that there is not only a growing demand for same-sex marriage, but that public opinion is also increasingly positive, with a majority of people now supporting the option of same-sex marriage.  Scotland now has the opportunity to lead the way in terms of legislative foresight and equality, and the new Scottish Government will have the opportunity to deliver fair and equal marriage choices to all.  

Tim Hopkins, Director of the Equality Network said :

‘There have been big improvements in the treatment of lesbian, gay, bisexual and transgender people in the past 20 years, but we remain the only group of people banned from marrying. We only have the choice of civil partnership, which was introduced to mark us out as not worthy of marriage itself. The same choices should be available to all couples, mixed-sex and same-sex’.

Download a copy of the report (Pdf)

More about the Equal Marriage Symposium

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For press enquiries contact the Equality and Human Rights Commission : Deborah Cowan on 0141 228 5938, Colin Macfarlane on 07970 541 369.  If you would like to speak directly to Tim Hopkins, please call his mobile : 07747 108 967.

Notes to editors:

• As the law stands, section 5(4)(e) of the Marriage (Scotland) Act 1977 explicitly prohibits marriage from taking place between a same-sex couple, restricting it to mixed-sex partnerships only. In the same way, section 86(1)(a) of the Civil Partnership Act 2004 specifically excludes mixed-sex couples by restricting civil partnerships to same-sex partners only.
• Poll figures and statistics taken from The Scottish and British Social Attitudes Surveys
• The Equal Marriage Symposium was hosted by the Equality and Human Rights Commission in partnership with The Equality Network and LGBT Youth Scotland. The report was written by Cambium Advocacy. 

The Equality and Human Rights Commission is a statutory body established under the Equality Act 2006, which took over the responsibilities of Commission for Racial Equality, Disability Rights Commission and Equal Opportunities Commission.  It is the independent advocate for equality and human rights in Britain.  It aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights.  The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation, and encourages compliance with the Human Rights Act.  It also gives advice and guidance to businesses, the voluntary and public sectors, and to individuals. 

The Equality Network is a national organisation in Scotland working for lesbian, gay, bisexual and transgender (LGBT) equality. The Equality Network’s work includes campaigning, community development, information provision, policy advice, training, research, Scottish Transgender Alliance policy and community support projects, and intersectional equality issues including for minority ethnic LGBT people.

LGBT Youth Scotland was established in Edinburgh in 1989 and is now a national youth organisation committed to championing the inclusion of lesbian, gay, bisexual and transgender young people in the life of Scotland.  LGBT Youth Scotland work to improve the health and wellbeing of LGBT youth and LGBT communities in Scotland.

Download a copy of the report (Pdf)