Same sex marriage: TUC submission to Commons Bill Committee

The TUC

The Trades Union Congress represents 53 unions with six million members. TUC equality structures include a committee elected at the annual TUC LGBT conference which advises the organisation on matters related to LGBT equality. The position of the TUC on the Marriage (Same Sex Couples) bill has been agreed by this committee.

Summary

The trade union movement is committed to the achievement of full equality for lesbians, gay men, bisexuals and transgender people both in terms of legal equality, and also to challenge prejudice against LGBT people that remains in British society. Therefore the TUC supports the Marriage (Same Sex couples) bill as a step towards both objectives, but does not believe that the Bill as it stands achieves equality, and is also concerned at retrograde steps included within the bill represented by the strengthening of exemptions from equality law with particular concerns about education. The TUC would welcome and support amendments that remedy the existing deficiencies.

Context: a vocal, organised but minority resistance

Enormous progress has been made in the willingness of people in the UK to accept their lesbian, gay and bisexual (and to a much lesser extent, trans) fellow citizens as equals over the last 15-20 years. The process has been accompanied by a sea-change in the willingness of politicians to give their public backing. Steps being taken towards establishing equal marriage in Europe and elsewhere confirm that this is now seen as the next critical measure of practical support for equality.

The furious backlash led by representatives of the Roman Catholic Church and the Church of England, supported by a minority of MPs, confirms that there remain people who have never supported any step towards LGBT equality and who probably never will. It is unfortunate that the attention they have gained has drowned out the voices of other, more liberal, religious figures who do support equality, and ignores the repeated surveys that show that the majority of people of faith in the UK are not opposed to LGBT equality, in contrast to the views of their leaders.

The TUC position on the Bill

Basis of TUC position. 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.

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'.

Making civil partnership available to all. Because of the TUC's approach (para. 2), the TUC believes that civil partnership should also be made available to opposite sex couples. It calls on MPs to back amendments to this effect. The Government has rejected this even though a majority of respondents to the consultation supported the idea. Although the TUC accepts that there is no substantial evidence either way of popular demand for this among opposite sex couples, it is a question of equality. The example of France is instructive, where more than 90% of those taking up the option of PACS are opposite sex couples. The TUC understands that PACS differs considerably from civil partnership in terms of the rights and responsibilities attached to it, but this does not lead to the conclusion that offering civil partnership as an alternative to marriage would not find resonance among opposite sex couples desirous of having a formal status for their relationship, but unwilling (for whatever reason) to marry. In the current proposal, to restrict CPs to same sex couples when all can marry both creates a reverse inequality, and also potentially devalues civil partnership. The TUC knows of many trade union members who have entered into civil partnership and who will not opt to convert this into marriage, and who are concerned at the possibility that their partnership will become seen as less than equal.

Position of faith groups. The TUC supports the position that faith organisations that wish to administer same sex marriages are enabled to do so, but also accepts the view that religious groups that are opposed should not be compelled to do so, on the basis of the principle of religious freedom. Because of this, the outright ban on the established Church of England from participating is not appropriate, as it would add an additional hurdle to that church changing its position on this question, and the same constraints would seem to apply even to the disestablished Church of Wales. The 'quadruple lock' represents an unhelpful additional barrier. Nor will it succeed in deflecting the opposition of the leadership of the Church to the bill. Instead, it leaves members of the Church, and clergy who support equality, in a very difficult position.

Exemptions to equality law. The TUC has always opposed the idea that it is permissible to discriminate against LGBT people on grounds of belief; this is to negate the principle of equality itself. The TUC position has been consistent - it coordinated the High Court challenge to the religious exemptions introduced into the employment anti-discrimination regulations in 2004 (the 'Amicus' case). Furthermore, it appears that the bill's 'quadruple lock' has no purpose other than to attempt - in vain - to buy off the opposition to equal marriage. In the process of doing so (and failing in this objective), it will strengthen the exemptions in existing legislation for religious organisations from equality law. To create more exemptions is a retrograde step that reinforces the reality and the perception that prejudice against LGBT people can be justified legally but also socially. Prejudice inevitably leads to inequality and discrimination. The only basis on which prejudice can be challenged effectively is for lesbians, gay men, bisexuals and transgender people to be presented positively as fully equal members of a society where difference and diversity is welcome accompanied by a clear message that the law supports this approach. The Equality Act 2010 for the first time placed sexual orientation and gender reassignment on an equal footing with the other protected characteristics; to strengthen exemptions from this sends a wholly wrong signal.

Gender reassignment. 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, introduced with the Gender Recognition Act with the explicit purpose of preventing same sex marriage, 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.

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 proposes to 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. The TUC would welcome and support amendments to remove, at last, this anomaly.

Education. In light of what was said in paragraphs 3 and 6, 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 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 in practice, 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 the current exemptions to the Equality Act do not extend so far as to allow this discrimination (following judicial clarification after the Amicus case that has been applied subsequently in discrimination cases). The fact of this being the DfE response is alarming and sends out unacceptable signals that justify the TUC's fears expressed in this submission that the proposed exemptions and the way they are being presented will lead to the worsening of the position for staff who wish to promote equality in schools, and for all the pupils (not just those growing up LGB or T) where prejudiced views are dominant.

In conclusion

• The Marriage (Same Sex Couples) Bill therefore represents an important step forward for LGBT equality, but in its present form retains inequalities that Parliament is urged to remove by amendment, and by strengthening exemptions from equality law threatens to impede progress rather than overcome the barriers to equality in important areas.

Contact:

Peter Purton

TUC policy officer for LGBT rights

ppurton@tuc.org.uk

0207 467 1271.