The Marriage (Same Sex Couples) Bill: a trade union view

TUC Briefing

Peter Purton

February 2013

Summary

The Government introduced the Marriage (same sex couples) bill at the end of January 2013; the second reading took place on 5 February. The Liberal Democrat and Labour Parties have offered full backing. The legislation represents a major step forward towards full legal equality for lesbian, gay, bisexual and transgender people and is also likely to further challenge the still strong prejudice and hostility towards LGBT people. Therefore the TUC supports the legislation. However, it does not establish full equality, and the TUC will support amendments to enable all willing religious organisations to carry out same sex marriage ceremonies, and to extend access to civil partnership to opposite-sex couples. Steps to remove continuing discrimination in occupational pensions would also be welcome.

This briefing has been published with the endorsement of the TUC LGBT Committee to help unions inform their members of the facts and the reasons why it is important that trade unionists continue to participate in what has been a highly controversial step in support of progress towards LGBT equality in law, and in society.

Contents of the legislation

These are the main proposals:

• The Bill introduced by the Minister for Women and Equalities Maria Miller MP would establish the same civil marriage rights for same sex couples as for opposite sex couples.
• It would maintain the existence of civil partnership (CP) (introduced in 2005) but for same sex couples only. People currently in a CP will be able at any time to convert their CP into marriage, if they wish to do so.
• It would remove the existing provision that trans people undergoing gender reassignment need to divorce an existing spouse before they can secure a full gender recognition certificate.
• Religious organisations wishing to carry out same sex marriage ceremonies will be permitted to opt in to doing so, but the Churches of England and Wales are prohibited from doing so, and a 'quadruple lock' is proposed to make it impossible to use equality laws to challenge a refusal by any religious organisation or cleric to carry out same sex marriages.

Context: a vocal, organised but minority resistance

Enormous progress has been made in the willingness of people in the UK to accept lesbian, gay and bisexual (and to a much lesser extent, trans) people as equal citizens over the last 15-20 years and it has been accompanied by a sea-change in the willingness of politicians to give their public backing. When the Labour government introduced civil partnerships for same sex couples (from 2005), immense care was taken by ministers to avoid saying that they had introduced same sex marriage, although there is no difference in any material sense between civil partnership and civil marriage. At the time, and even with the careful distinction made by the difference in terminology, opponents of equality denounced CPs as likely to bring about the collapse of society. Just five years later, David Cameron announced, at the Conservative Party conference, his intention to legislate for same sex marriage.

At the same time, in Scotland, Alex Salmond is promoting a marriage equality bill through the Scottish parliament, while François Hollande has introduced legislation in France, and a growing number of states in the USA are doing the same. At an international level, equal marriage rights have become the next step to take for LGBT equality.

However, ever since Cameron's announcement, there has been a furious backlash led by representatives of the Roman Catholic church and the Church of England, and a substantial number of Conservative back bench MPs. This has completely drowned out the debate that many people would have liked to explore about the institution of marriage itself, and also that the government proposals have never from the outset actually represented full equality, discussions that have achieved zero media coverage.

The voice of other, more liberal, religious figures has also tended to be lost but their support for equality demonstrates that not all faith groups regard equal marriage as incompatible with their creed. Similarly, repeated surveys have shown that the majority of people of faith in the UK are not opposed to LGBT equality, in contrast to the views of their leaders. This fact is important in deciding how to respond.

The public consultation carried out by the Government Equalities Office (GEO) from March to June 2012 occasioned an enormous campaign in which religious opponents mobilised their congregations to sign petitions and lobby MPs and numerous predictions of cataclysm were made from pulpits. There was the largest ever response to a government consultation (228,000) without counting the half million signatures on petitions. If the petitions were left aside, 53% of the responses supported the government proposal. On the strength of this, the bill has been produced and, depending on whether there is delay in the parliamentary process, is likely to become law before the next general election. It began its committee stage in the Commons on 12 February. Ministers have already indicated that they are prepared to deploy the Parliament Act to override the House of Lords if the peers vote to stop the bill.

Changes following consultation

There have been just three significant changes to the original proposal presented in the GEO consultation.

All relate to the position of religious organisations.

• On the positive side, the bill will now enable religious organisations that wish to carry out same sex marriage ceremonies to 'opt in'. The bill specifies Quakers and (liberal) Jews. This was in response to a majority view in the consultation responses that the original plan to prohibit religious organisations of any kind from carrying out same sex marriages was unreasonable.
• At the same time, the protection against litigation of any religious organisation that or cleric who refuses to administer same sex marriage has been strengthened.
• In particular, in the case of the Church of England and the Church of Wales, which are the established churches, it would require both a change of primary legislation (through Parliament) and a change in the Churches' own (canon) law, and this bill expressly prohibits them from carrying out such ceremonies, even though the government acknowledges that Parliament is the supreme legislative body and has the right to overrule Church canon law.

In addition, it states the Equality Act will be amended to make it impossible to allege unlawful discrimination against anyone refusing to solemnize a same sex marriage.

The TUC position on the debate

The basis on which the TUC supports the legislation is support for equality and human rights. The government proposal is rooted in the proposition that marriage is good for a stable society. The TUC stance is based on the proposition that lesbian, gay, bisexual and transgender people continue to face prejudice and discrimination, and that the denial of the right to get married that is available to opposite sex couples is discriminatory. It is not, therefore, a position either for or against people getting married, it is that access to this institution must not be denied to people because of their sexuality or gender identity.

On a similar basis, the TUC believes that civil partnership should be made available also to opposite sex couples. It calls on MPs to back amendments to this effect. The Government rejected this even though a majority of respondents to the consultation supported the idea. There is no substantial evidence either way of popular demand for this among opposite sex couples, but it is a question of equality and a number of parliamentarians have already raised the issue, and in France, where a civil partnership scheme exists in the forms of PACS (which, it is true, secures far less substantial rights or obligations than the UK's civil partnership), more than 90% of those taking up the option are opposite sex couples. Restricting CPs to same sex couples when all can marry both creates a reverse inequality, and also potentially devalues civil partnership.

The TUC supports the position that faith organisations that wish to administer same sex marriages are enabled to do so, but also supports the view that religious groups that are opposed should not be compelled to do so - providing, however, that they do not seek to obstruct the right of others to their choice. This is also the position adopted by the Cutting Edge Consortium, a coalition of faith and secular organisations (including many trade unions) that promotes LGBT equality among people of faith (www.cuttingedgeconsortium.co.uk). In the case of the established churches, the TUC supports the view that local churches should be able to decide whether or not to offer same sex marriage ceremonies and MPs are encouraged to back amendments to this effect.

The TUC is also concerned that the bill's 'quadruple lock' has no purpose other than to attempt - it seems in vain - to buy off the opposition to equal marriage. In the process, it will strengthen the exemptions in existing legislation for religious organisations from equality law. The TUC has always opposed these exemptions; to create more is a retrograde step.

The TUC is pleased that provisions within the bill remove the requirement on people undergoing gender reassignment to divorce an existing spouse before they can receive a full gender recognition certificate. This requirement was introduced alongside the Gender Recognition Act with the explicit purpose of preventing same sex marriage. It has caused immense hardship for many trans people in situations where both parties wished to remain in a committed relationship, but had first to undergo a divorce before being able to re-establish their commitment through a civil partnership. Reasonably enough, the active consent of the spouse will be required.

The TUC believes that the opposition of church and faith group leaders, and of some Conservative Party MPs and peers, is rooted not just in concern for the creed of their particular faith, but chiefly in an underlying opposition to LGBT equality in itself. The evidence for this is that the majority of these same representatives have consistently resisted every move towards legal equality. This is another reason why it is so important to challenge the arguments presented by this lobby.

There remains widespread (though now minority) hostility and prejudice towards LGBT people, confirmed by the most recent British Social Attitudes Survey in which nearly one third of people identified that this was their view. The consequences for young people coming to terms with their sexuality or gender identity in hostile homes or schools, and for LGBT workers in homophobic workplaces, are serious. In the most extreme cases, this prejudice converts into hate crime, of which trans people in particular have been disproportionately victims. Creating equal marriage rights for LGBT people will help challenge these attitudes about what is 'normal'.

Occupational pension rights. The TUC is disappointed that the Government chose not to use this bill to create equal occupational pension rights for people in same sex relationships. The government will treat same sex marriages in the same way as civil partners, that is, civil partners and same sex married partners will only be entitled to equal treatment in terms of access to benefits dependant on marital status from 5 December 2005. In the case of occupational schemes contracted out of the State Second Pension, service can be backdated to 1988 (following TUC lobbying in 2005). For pensions not contracted out, there is no legal obligation to backdate service beyond 2005 for the purpose of calculating survivor benefits for partners. In justification, the Government claims that to establish equality would impose an unplanned-for cost on pension schemes - a flawed argument given (a) that the actual cost would certainly be minimal, because of the small number of people who would benefit, and (b) the government's own recognition of the fact that two thirds of schemes already pay equal survivor benefits voluntarily.

Education. The TUC is deeply concerned at the message being given out by the Government on what can be taught in the growing number of faith schools. Ministers have now explained that it is not a problem for teachers to promote the view of their faith on what constitutes 'proper' marriage. The TUC has engaged in extensive correspondence challenging education ministers on the difficulty in a classroom context of teaching both that only heterosexual relationships are acceptable, and teaching acceptance of all people as equals. Government responses have stressed that such teaching is lawful provided it does not promote (unlawful) harassment. In cultures where homo-, bi- and transphobic bullying continue to be a serious problem (as confirmed year by year by many reports, most recently the 2012 Stonewall School Report), it is clear that this distinction does not work, and the evidence of even higher rates of bullying in faith schools serves to confirm this conclusion. In addition, the position of staff in Catholic faith schools who wish to enter into same sex marriages appears to be under threat following news (Sunday Times, 28 January 2013) that the Department for Education has declared that 'faith schools can consider whether a person's conduct is in line with their religious views when dismissing teachers'. The stated position of that Church has always been clear on this (covering divorcees and registry office weddings), but there is case law suggesting that exemptions to the Equality Act do not extend so far as to allow this discrimination, but the fact of this being the DfE response is alarming and sends out unacceptable signals.

In conclusion

The protests of those who oppose equality will be noisy and will be backed by many friends in the media. It is important that these voices are not permitted to prevent this extension of equality to LGBT people.

Unions may have an important role in explaining to members and to fellow workers the reasons why this Government bill needs to be supported, and to point out the discriminatory and prejudiced thinking that underlies the opposition to the bill. At the same time as supporting the bill against its opponents, however, unions should lobby in support of amendments to remove remaining inequalities created or sustained by this legislation. In addition, education unions will need in particular to address the specifics of what will happen in faith schools.