Marriage (Same Sex Couples)

Memorandum submitted by UNISON (MB 101)

1 About UNISON

1.1 UNISON is the UK's largest public service union with more than 1.3 million members. Our members are people working in the public services, for private contractors providing public services and in the essential utilities. They include frontline staff and managers, working full or part time in local authorities, the NHS, the police service, colleges and schools, the electricity, gas and water industries, transport and the voluntary sector. Over 70% of our members are women; many are low paid or work part time.

1.2 The issue of marriage equality is important to UNISON, impacting on our members at work and on society as a whole.

1.3 UNISON has a long and proud history of work for sexual orientation and transgender equality . A significant proportion of our members are themselves lesbian, gay, bisexual and transgender and there is a very active group of LGBT members organised within the union. All our members deliver public services to LGBT people.

1.4 UNISON is the trade union for registrars: our members currently conduct civil partnerships and mixed sex marriages.

2 Summary of submission

2.1 UNISON is strongly in favour of full equality in marriage and civil partnership and welcomes the Marriage (Same Sex Couples) Bill as an important step forwards. It matters for the individuals concerned but it has far wider ramifications in the message it sends about LGBT equality.

2.2 However, UNISON has two particular concerns about the Bill as currently framed. First, UNISON strongly regrets the proposal to treat same sex marriages like civil partnerships – rather than like mixed sex marriages - for the purposes of survivor’s pensions. Pensions inequality is a long-standing injustice which must not be allowed to continue.

2.3 Secondly, UNISON believes that civil partnership, like marriage, should be open to all couples. Only this represents equality.

2.4 UNISON agrees that there should be no opt-out in the bill for civil registrars.

3 Context

3.1 UNISON is a trade union committed to equality for all: we aim to combat all forms of prejudice and discrimination. Although we have made progress, lesbian, gay, bisexual and transgender people continue to experience widespread prejudice and discrimination, personal and institutional.

3.2 The current bar on marriage for same sex couples is a cornerstone of institutional discrimination. It perpetuates homophobia, reinforcing the notion that same sex couples are not a real family and are inferior. Separate is definitely not equal. It impacts on the individual partners, on other dependent family members and sends ripples out through society.

3.3 Further, there is an urgent need to right the wrong of transgender people having to end their marriage or civil partnership in order to gain gender recognition.

4. Survivor pensions

4.1 For many years, UNISON has called for the right for workers to leave survivor pension benefits to a same sex partner.

4.2 We expressed our concerns about this issue in the strongest terms at the time of the Employment Equality (Sexual Orientation) Regulations 2003, which included an exemption for benefits related to marital status. Indeed, UNISON was one of the parties in the Judicial Review of the Regulations, Amicus v Secretary of State for Trade and Industry [2004].

4.3 Although this was resolved for future couples by the introduction of civil partnership, a significant number of people in civil partnerships get much smaller survivor’s pensions than they would if they were in a mixed sex marriage. This is because as a statutory minimum, civil partner survivor’s pension benefits only accrue on service since 5 December 2005, the day civil partnership came into force.

4.4 We therefore welcome the recent ET judgment in Walker v Innospec Ltd [2012]. On his death, Mr Walker’s civil partner would receive an annual survivor’s pension of around £500. If Mr Walker was married to a woman, his widow would receive around £41,000. The judge found the exception in the Equality Act 2010 which limits the retrospectivity of the requirement to provide the same benefits to civil partners and married couple to be incompatible with the EU Framework Employment Equality Directive 200/78, as interpreted by the CJEU in Maruko [2008] and Roemer [2011].

4.5 Rather than this wrong finally being righted, we are extremely concerned that the Marriage (Same Sex Couples) Bill would amend the Equality Act 2010 to extend the exception to married same-sex couples.

4.6 This will have a particularly devastating impact on married couples where one spouse obtains gender recognition, turning their mixed sex marriage into a same sex marriage. The effect of the current Bill would be that one spouse would lose a large part of their survivor’s pension overnight.

4.7 We strongly urge that the opportunity to end this injustice is not missed.

4.8 We therefore call for an amendment to the Bill to repeal paragraph 18(1) of Schedule 9 to the Equality Act 2010, rather than to amend this paragraph to exclude same sex spouses.

4.9 The actual cost to pension schemes would not be burdensome as this affects a small and diminishing number of people and because two thirds of schemes already pay equal survivor benefits voluntarily. Further, the cost would be too small to move an actuarial assumption. There is not any distinction made between spouses and civil partners in the way valuations are usually constructed. Currently a civil partner’s dependant’s pension on pre 2005 service is costed even if a scheme does not provide that benefit.

4.10 So there is little or no impact on schemes, but the impact on the individuals concerned is substantial.

5 Civil partnership

5.1 UNISON believes that civil partnership should be opened up to opposite sex couples. This would end the stigma of an institution for same sex couples only; remove the fact that declaring a civil partnership is effectively a declaration of sexual orientation; resolve the problem that a transgender person in a civil partnership would still have to end their civil partnership in order to seek full gender recognition if they do not wish to convert their civil partnership into a marriage; and meet the needs of opposite sex couples who want to register their relationship but do not want a marriage.

5.2 UNISON believes this is a simple matter of equality and there is no good reason to fail to take this step in the current Bill.

6 Civil registrars

6.1 UNISON members deliver public services – including the public service of registering civil marriages and civil partnerships.

6.2 We are aware that there have been some calls for an opt-out in the Bill for registrars who do not wish to conduct same sex marriages because of their personal beliefs.

6.3 UNISON strongly believes that there should be no such opt-out in the Bill. Registration of lawful marriages is a public function that must be delivered without discrimination against people with a protected characteristic.

6.5 A personal belief about same sex marriage cannot justify refusing to provide a public service.

6.4 The experience of our civil registrar members is that such a refusal not only impacts on those wishing to register a civil partnership. It impacts on the dignity at work of other civil registrars – including those who are themselves LGBT. It is incompatible with the public service aims of equality and non-discrimination.

6.6 UNISON welcomed the European Court of Human Rights ruling in Eweida and Others v. United Kingdom that settled this matter – that preventing sexual orientation discrimination is an important and legitimate purpose that justifies restrictions on expression of religious belief.

7 Conclusion

7.1 The introduction of same sex marriage is an important step forwards in equality for LGBT people and in combating the homophobic, biphobic and transphobic prejudice and discrimination which continue to blight the lives of individuals and damage our society.

7.2 UNISON welcomes the Marriage (Same Sex Couples) Bill and looks forward to its passage into law.

7.3 However UNISON wishes to see two main amendments. The first is to provide full equality in survivor’s pension benefits so bereaved same sex spouses received exactly the same as they would if married to a different sex partner. This issue is of extreme importance to UNISON and to our members. Secondly, UNISON believes civil partnership should be available to all couples as a simple matter of equality.

7.4 UNISON is concerned by attempts to amend the bill to provide opt-outs in public service provision for those who are opposed to same sex marriage. In particular, UNISON believes it is essential that there is no discrimination in the provision of civil registrar services, but this principle extends to all public service.

March 2013

Prepared 8th March 2013