LGBT rights in Scotland

LGBT rights in Scotland
Scotland (dark green) within the United Kingdom (light green)
Same-sex sexual intercourse legal status Legal since 1981, age of consent equalised in 2001
Gender identity/expression Right to change legal gender since 2004
Military service LGBT people allowed to serve openly since 2000
Discrimination protections Sexual orientation and gender identity protections
Family rights
Recognition of
relationships		 Same-sex marriage since 2014
Civil partnerships since 2005
Adoption Joint and stepchild adoption since 2009

Lesbian, gay, bisexual, transgender (LGBT) rights in Scotland are generally in line with the rest of the United Kingdom, which have evolved extensively over time and are now regarded as some of the most progressive in Europe. In both 2015 and 2016, Scotland was recognised as the "best country in Europe for LGBTI legal equality".[1][2]

Same-sex sexual activity has been legal since 1981 and the age of consent has been equal to that for opposite-sex activity since 2001, at 16. A same-sex marriage law was approved by the Scottish Parliament in February 2014 and received royal assent on 12 March 2014. It came into effect on 16 December 2014 with many civil partners converting their relationships into marriages, while the first same-sex marriage ceremonies occurred on 31 December 2014. Civil partnerships for same-sex couples have been legal since 2005. Same-sex couples have also been granted joint and step adoption since 2009 and discrimination on the basis of sexual orientation and gender identity has been banned since 2010.

Laws regarding same-sex sexual activity

The historical legal situation for male homosexuality was severe: "The common law crime of sodomy does not involve the establishment of the absence of consent on the part of the passive agent or catamite. It reflects a former general disapproval of homosexuality and both parties are guilty of the offence".[3] Recorded punishments are limited compared to purges such as the Utrecht sodomy trials, whether due to lack of offending, prosecution or surviving documentation. Baron Hume wrote that "the crime is only mentioned twice in the course of our records", citing a double prosecution in 1570 and a single prosecution in 1630, with bestiality more often noted, all cases being punished by death.[4] A legal text dated 1832 added a then recent case in which a man, on confession to two acts of sodomy out of nine initially charged, was transported for life.[5] However, another archive source documents an additional sample mention, the commission for the trial of Gavin Bell in 1645.[6]

In 1889, Scotland became the last jurisdiction in Europe to abolish the death penalty for same-sex sexual intercourse, which reduced the penalty to life imprisonment in a penitentiary.[7][8]

The United Kingdom Parliament voted to pass the Sexual Offences Act 1967 for the limited decriminalisation of homosexual acts in only England and Wales.[9] Homosexual activities were legalised in Scotland — on the same basis as that which was used for the 1967 Act — by Section 80 of the Criminal Justice (Scotland) Act 1980,[10] which came into force on 1 February 1981.[11] Section 2A, the legislation that prevented the promotion of homosexuality, was repealed in Scotland within the first two years of the existence of the Scottish Parliament by the Ethical Standards in Public Life etc. (Scotland) Act 2000.[12]

In June 2018, the Scottish Parliament passed the Historical Sexual Offences (Pardons and Disregards) Act 2018, a law which issued a formal pardon to men, living and dead, convicted of having consensual sex with other men before it was decriminalised.[13] Though the pardons are purely symbolic, the law also allows for anyone with a historical conviction for same-sex sexual activity, now legal, to apply for a formal "disregard". If an application for a disregard is accepted by the relevant Minister, this prevents the information from being included in disclosure checks and treats the offence as having not occurred.[14]

Recognition of same-sex relationships

Same-sex marriage

LGBT flag map of Scotland

Same-sex marriage is legal in Scotland and the first same-sex marriages occurred on 31 December 2014.[15][16] The law provides that religious organizations and individual celebrants are under no obligation to perform marriage ceremonies for same-sex couples, though religious organizations are permitted to authorize their clergy to do so.

On 25 July 2012, the Scottish Government announced that it would legalise same-sex marriage.[17] The move was announced despite opposition by the Church of Scotland and the Catholic Church in Scotland. Although Deputy First Minister Nicola Sturgeon announced the move as the "right thing to do", she reassured churches that they would not be forced to perform same-sex marriages.[18] During the consultation phase, ministers received over 19,000 messages from constituents about the issue.[19]

On 27 June 2013, the Scottish Government introduced the Marriage and Civil Partnerships Bill (Scotland) in the Scottish Parliament.[20][21]

On 4 February 2014, the Scottish Parliament held its final reading on the bill to permit same-sex marriages. The bill passed by a vote 108-15 and received royal assent on 12 March 2014.[22] The UK Parliament had already agreed to make necessary amendments to the UK Equality Act 2010 if the Scottish Parliament enacted same-sex marriage legislation, so as to allow certain religious and faith organisations to be exempted from having to conduct, or be involved in same-sex marriage if it contravenes their beliefs, as is also provided in the Scottish bill.[23] The first same-sex weddings occurred on 31 December 2014, though civil partnerships could be exchanged for marriage certificates from 16 December 2014 so the very first same-sex marriages under Scottish law were recognised from that day.[24]

In June 2017, the Scottish Episcopal Church approved of same-sex marriage within church canon law. This change only affects the Episcopal Churches within Scotland and not other religions or denominations of other churches.[25] In May 2018, the General Assembly of the Church of Scotland passed a vote by 345 to 170 for a motion which tasked a committee with drafting church law on the issue of same-sex marriage. Its legal question committee has been asked to report back to the decision-making body in 2020.[26]

Civil partnerships

Civil partnerships have been a right of same-sex couples in Scotland to access since 2005, when the UK Parliament passed the Civil Partnership Act 2004. The Act gives same-sex couples most (but not all) of the rights and responsibilities of civil marriage.[27] Civil partners are entitled to the same property rights as married opposite-sex couples, the same exemption as married couples on inheritance tax, social security and pension benefits, and also the ability to get parental responsibility for a partner's children,[28] as well as responsibility for reasonable maintenance of one's partner and their children, tenancy rights, full life insurance recognition, next of kin rights in hospitals, and others. There is a formal process for dissolving partnerships akin to divorce.

The legalisation of same-sex marriage in Scotland has had several notable impacts on legislation relating to Scottish civil partnerships. Though the Scottish Government has yet to decide whether or not to open civil partnerships to mixed-sex couples, the Government has elected to introduce:[22]

  • Possible tests for religious and belief bodies to meet when solemnising marriages or registering civil partnerships, in light of increasing concerns over sham and forced marriages.
  • Religious and belief ceremonies to register civil partnerships.

Since November 2015, civil partnerships originating elsewhere in the United Kingdom other than Scotland (including Northern Ireland) can be converted to a marriage without the couple being forced to dissolve the civil partnership.[29]

Adoption and parenting rights

On 28 September 2009, legislation allowing same-sex couples to adopt children in Scotland came into force.[30][31] At the same time, the Looked After Children (Scotland) Regulations 2009 came into effect, which allows same-sex couples to be considered as foster parents on the same basis as anyone else.[32][33]

The legal position regarding co-parenting arrangements where a gay man/couple donates sperm to a lesbian couple is complex. Following the changes implemented by the Human Fertilisation and Embryology Act 2008, lesbian couples who conceive with donated sperm are likely to be treated as both being the parents of their child. If the lesbian couple a man is donating to are civil partners/married, the father's status will be automatically excluded. If the lesbian couple he is donating to are not civil partners/married, the mothers may be able to choose whether they wish the child's second parent to be the father or the non-birth mother.[34]

Altruistic surrogacy is legal in the United Kingdom, including Scotland. The law supports gay fathers conceiving through surrogacy in the UK in the same way as it does heterosexual couples and allows for applications to the relevant court, for such parents who wish to be named on their child's birth certificate as the legal parents/guardians of the child.[35]

Discrimination protections

The passage of the Equality Act 2010 by the Parliament of the United Kingdom directly impacted on Scotland. Since implementation, the Act has covered gender reassignment, marriage and civil partnership, sex, and sexual orientation among a host of other attributes. The Act outlaws discrimination, harassment and victimisation of another person because they belong to a group that the Act protects, are thought to belong to one of those groups or are associated with someone who does.[36]

In 2009, Scotland enacted legislation providing for penalty enhancements if the commission of a crime is motivated by the victim's sexual orientation or gender identity.[37]

Living conditions

Participants at the 2018 Glasgow Pride parade

Attitudes towards members of the LGBT community have changed drastically in Scotland in just a few decades. In the 1980s, the climate was one of extreme homophobia, hostility and public antipathy. In these times, LGBT individuals would either stay in the closet, move to England or commit suicide. Despite homophobic opinions and rhetoric being widespread and mainstream, small LGBT groups began to organise politically and socially, calling among others for the repeal of Section 2A, which banned the "promotion of homosexuality", and which was eventually repealed in 2000 despite an organised and a powerful opposition. By the early 2000s, attitudes became increasingly more accepting. In 2004, legislation allowing transgender people to change their legal gender was enacted. Civil partnerships were legalised in 2005, followed by adoption in 2009 and same-sex marriage in 2014. Nowadays, Scotland is regarded as "one of the most LGBT-friendly countries in the world".[38] Dubbed by the media as "a seismic shift", societal acceptance of same-sex relationships and LGBT people has increased tremendously. According to the Scottish Social Attitudes (SSA), about 29% of Scottish in 2000 held the view that "same-sex relationships are not wrong at all". In 2015, 59% held that view.[39] A 2014 opinion poll published by the SSA showed that 68% of Scottish supported same-sex marriage, while 17% opposed. Support was higher among young people (83%) than among people over 65 (44%), higher among women (72%) than men (63%), and higher among atheists or irreligious people (81%) than among Catholics (60%) or Church of Scotland adherents (59%).[40]

In 2016, the majority of Scotland's major political parties were led by openly LGBT people: the Scottish Conservatives by Ruth Davidson, the Scottish Labour Party by Kezia Dugdale and the Scottish Green Party by Patrick Harvie.

Glasgow and Edinburgh have visible LGBT scenes, with many gay bars, clubs, pubs and restaurants. Though smaller, Aberdeen, Stirling and Dundee also host a variety of LGBT venues and events. Pride Glasgow, an annual pride march held in the summer, is the largest LGBT event in Scotland, with an attendance of usually about 50,000 people. Edinburgh's Pride Scotia takes place annually in June, and includes a pride march, a BBQ and a community fair.[41]

Summary table

Same-sex sexual activity legal (Since 1981)
Equal age of consent (Since 2001)
Anti-discrimination laws in employment (Since 2010)
Anti-discrimination laws in the provision of goods and services (Since 2010)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) (Since 2010)
Anti-discrimination laws concerning gender identity (Since 2010)
Hate crime laws include sexual orientation and gender identity (Since 2009)
Recognition of same-sex couples (e.g. civil partnership) (Since 2005)
Same-sex marriage(s) (Since 2014)
Stepchild adoption by same-sex couples (Since 2009)
Joint adoption by same-sex couples (Since 2009)
LGBT people allowed to serve in the military (Since 2000)
Right to change legal gender (Since 2004)
Access to IVF for lesbians (Since 2009)
Conversion therapy on minors outlawed
Expungement scheme or pardon law implemented (Since 2018)
Commercial surrogacy for gay male couples
MSMs allowed to donate blood / (3 month deferral required)

See also

References

  1. ↑ "Scotland named best country in Europe for LGBTI legal equality". STV News. 10 May 2015. Retrieved 5 September 2015.
  2. ↑ "Scotland tops in Europe for gay equality and human rights". The Scotsman. 10 May 2016. Retrieved 11 May 2016.
  3. ↑ "Opinion of the Court". Scotcourts.gov.uk. 9 March 2010. Archived from the original on 6 April 2010. Retrieved 31 October 2015.
  4. ↑ "The Scottish Law against Sodomy". Ric Norton. 13 May 2008. Retrieved 31 October 2015.
  5. ↑ Alison, Archibald. Principles of the Criminal Law of Scotland, (1832). p. 566.
  6. ↑ "Click here for details". rps.ac.uk/. rps.co.uk/. Retrieved 4 February 2014.
  7. ↑ Hirschfeld, Magnus. "The Homosexuality of Men and Women". Prometheus Books – via Google Books.
  8. ↑ "Homosexuality in Great Britain Section Two: Legislation". www.banap.net.
  9. ↑ "Sexual Offences Act 1967". legislation.gov.uk. Crown. 2013. Retrieved 16 July 2013.
  10. ↑ "Criminal Justice (Scotland) Act 1980". legislation.gov.uk. Crown. 1980. Retrieved 18 July 2013.
  11. ↑ "THE CRIMINAL JUSTICE (SCOTLAND)ACT 1980 (Hansard, 17 December 1980)". hansard.millbanksystems.com. Retrieved 2017-09-04.
  12. ↑ "Ethical Standards in Public Life etc. (Scotland) Act 2000". legislation.gov.uk. Crown. 2000. Retrieved 18 July 2013.
  13. ↑ "Decades After 'Massive Injustice' Repealed, Scotland Will Offer Pardons To Gay Men". National Public Radio. 6 June 2018.
  14. ↑ "Thousands of gay Scots to be pardoned". BBC News. 6 June 2018.
  15. ↑ "First same-sex weddings take place in Scotland". BBC News. 31 December 2014.
  16. ↑ "Scotland legalizes same-sex marriage". LGBTQ Nation. 4 February 2014. Retrieved 4 February 2014.
  17. ↑ "Gay marriage to be introduced in Scotland". BBC News. 25 July 2012. Retrieved 25 July 2012.
  18. ↑ Bussey, Katrine; Duncanson, Hilary (25 July 2012). "Scotland's gay marriage law to progress". The Independent. Retrieved 18 July 2013.
  19. ↑ "Ministers contacted over gay marriage more than Scottish independence referendum". The Scotsman. 11 May 2012. Retrieved 4 February 2014.
  20. ↑ "Marriage and Civil Partnership (Scotland) Bill". Scottish Parliament. Retrieved 5 September 2015.
  21. ↑ "Bill published to make same-sex marriage legal in Scotland". PinkNews. 27 June 2013.
  22. 1 2 "Scotland's same-sex marriage bill is passed". BBC News. 4 February 2014.
  23. ↑ "Marriage and Civil Partnership (Scotland) Bill - statement on the Equality Act 2010". Scottish Government. 26 June 2013. Retrieved 5 September 2015.
  24. ↑ Senzee, Thom (16 December 2014). "Scotland's Marriage Equality Starts Today". The Advocate. Retrieved 5 September 2015.
  25. ↑ "Scottish Episcopal Church approves gay marriage". 8 June 2017 – via www.bbc.com.
  26. ↑ Kirk moves closer to gay marriage services. BBC NEWS. Published 19 May 2018. Retrieved 23 May 2018.
  27. ↑ "Lesbians lose legal marriage bid". BBC News online. BBC. 31 July 2006. Retrieved 23 May 2010.
  28. ↑ "Gay couples to get joint rights". BBC News. 31 March 2004. Retrieved 14 May 2006.
  29. ↑ "Scotland throws a lifeline to Northern Irish same-sex couples". Pink News. 3 November 2015.
  30. ↑ "Adoption and Children (Scotland) Act 2007". legislation.gov.uk. Crown. 2007. Retrieved 18 July 2013.
  31. ↑ "New legislation sees gay Scottish couples win right to adopt children". Sunday Herald. 20 September 2009. Retrieved 5 September 2015.
  32. ↑ "The Looked After Children (Scotland) Regulations 2009". www.legislation.gov.uk. Retrieved 5 September 2015.
  33. ↑ "Adoption and Fostering in Scotland". Stonewall Scotland. 28 September 2009. Retrieved 4 February 2014.
  34. ↑ "Co-parenting". Stonewall Scotland. Retrieved 4 February 2014.
  35. ↑ "Surrogacy for gay dads". Natalie Gamble Associates. Retrieved 4 February 2014.
  36. ↑ "Discrimination protections for LGBT's in Scotland overview". GayLaw.net. Retrieved 4 February 2014.
  37. ↑ Rainbow Europe: Scotland
  38. ↑ How Scotland Became the Most LGBT Friendly Country in the World
  39. ↑ "Scotland survey shows greater acceptance of same-sex relationships". The Guardian. 30 September 2016.
  40. ↑ Record Support for Same-Sex Marriage in Scotland
  41. ↑ LGBT Scotland

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