Marriage (Same Sex Couples)

Memorandum submitted by Equality Network / Scottish Transgender Alliance (MB 36)

Summary

We are an LGBT equality organisation in Scotland, and this submission is concerned only with the impact of the bill on Scots law and on people living in Scotland. We expect a bill for devolved aspects of marriage equality in Scotland to be introduced in the Scottish Parliament later this year.

We welcome the policy of introducing marriage equality, and the Marriage (Same Sex Couples) Bill. Generally, we strongly support the provisions of the bill. However, we have identified eight concerns or suggestions for improvements to the bill:

· The availability and cost of conversion of civil partnership to marriage, for residents of Scotland who registered their civil partnership in England and Wales (paragraph 6 below).

· The availability of gender recognition without divorce for people resident in Britain who married in Northern Ireland (para 7).

· The potential costs of the proposed two-step process for gender recognition for people in a civil partnership, which requires them to convert temporarily to a same-sex marriage first (paras 8 & 9).

· The availability of a route to gender recognition for people living in Britain in a civil partnership registered in a foreign country, without needing to dissolve that civil partnership first (paras 10 & 11).

· The situation of couples who previously dissolved their marriage solely so that one of them could obtain gender recognition, and the possibility of restoring the continuity of their dissolved marriage once same-sex marriage is available (paras 12 & 13).

· The availability of gender recognition for married people who transitioned gender a long time ago, and who may not have access to as much medical documentation as people who transitioned more recently (paras 14 to 17).

· Discrimination between same-sex and mixed-sex marriages in benefits provided by private sector occupational pension schemes (paras 19 to 21).

· The negative impact on the accumulated pension benefits of a married couple, when one of the couple is granted gender recognition (paras 22 to 24).

Background

1. The Equality Network is a national charity working for lesbian, gay, bisexual and transgender (LGBT) equality and human rights in Scotland. The Scottish Transgender Alliance is based within the Equality Network and focusses on trans equality. This submission is concerned with the effects of the Marriage (Same Sex Couples) Bill in Scotland.

2. Our policy work is based on wide consultation with LGBT people across Scotland. In 2009, 85% of LGBT people we surveyed told us that equal marriage was a priority for them, and we began a major campaign for equal marriage in Scotland that year. Since then we have worked with the Scottish Government to ensure that the development of legislation for equal marriage for Scotland (the Marriage and Civil Partnership (Scotland) Bill) is informed by the needs of LGBT people.

3. Marriage, civil partnership and gender recognition are devolved matters in Scotland. However, they each have implications for reserved matters such as pension regulation and equality law. We therefore welcome that the development of the Marriage (Same Sex Couples) Bill and the Marriage and Civil Partnership (Scotland) Bill have proceeded in parallel and with much cooperation between the UK and Scottish Governments.

4. Since they are devolved matters, it will be the Scottish bill that introduces same-sex marriage in Scotland and gender recognition without divorce for people who married in Scotland. The Scottish bill is currently out in draft for public consultation, and we expect it to be introduced in the Scottish Parliament around the summer. It is possible that the UK legislation may come into effect a little before the Scottish legislation, and the UK bill rightly takes account of that.

Treatment of England & Wales same-sex marriages in Scotland (schedule 2)

5. Paragraph 1 of schedule 2 to the bill provides that, if the UK legislation comes into effect before the Scottish legislation, same-sex marriages under the law of England and Wales may be treated as civil partnerships under the law of Scotland. This treatment will be provided for by the Secretary of State by order (sch 2 para 1(1)). Since civil partnership is devolved to Scotland, it is right that such an order requires the consent of Scottish Ministers (para 1(5)). After the Scottish legislation comes into effect, same-sex marriages under the law of England and Wales will be treated as marriages in Scots law (effectively from the date of the original marriage). This is appropriate in our view.

Conversion of civil partnership to marriage (clause 9)

6. The bill provides that civil partnerships registered in England and Wales may be converted into same-sex marriages. It is important that this conversion is available to people resident in Scotland who registered their civil partnership in England and Wales. The conversion arrangements will be set out in regulations (clause 9(1)). Given that there are many couples who would have preferred to marry in the first place, rather than enter a civil partnership, and that the existing segregated (marriage / civil partnership) system has discriminated against them, we hope that the conversion process will not involve a large fee. We hope also that it can be done by post (or email), so that couples resident in Scotland do not have to return in person to England or Wales to convert, which would be expensive and burdensome. We expect that conversion to marriage of civil partnerships registered in Scotland will be provided for by the Scottish bill, for people resident in any part of the UK.

Gender recognition (schedule 5)

7. The bill provides for gender recognition without dissolution of marriage, if the non-applicant spouse consents, for marriages solemnised in England and Wales, and for overseas marriages. This will be available to residents of Scotland. Gender recognition without dissolution for marriages solemnised in Scotland will be provided for by the Scottish bill, and we expect it to apply to people living anywhere in the UK. Gender recognition without dissolution of marriage will then be available to UK residents who married in any part of the world except Northern Ireland. It is a matter of serious concern that, uniquely, people who married in Northern Ireland will be unable to obtain gender recognition without dissolving their marriage. We hope that the Northern Ireland Executive and Assembly will address this as soon as possible.

8. We have three other concerns about the gender recognition provisions. Firstly, for people in civil partnerships, if only one partner is trans, gender recognition without dissolving the civil partnership is not possible unless the civil partnership is first converted to a same-sex marriage under the provisions of clause 9. This results in a two-step process: first convert the civil partnership to a same-sex marriage, and then obtain gender recognition, which renders the marriage a mixed-sex marriage.

9. We are concerned about the burdens that this two-step process would impose on people, including on those living in Scotland who registered their civil partnership in England and Wales. Currently, the fee for applying for gender recognition is zero, £30 or £140, depending on income. If there is a fee involved in converting a civil partnership to a marriage, and if it is a requirement of that conversion process for the partners to attend in person (as suggested by clause 9(4)(d)), then the costs of gender recognition will be very much increased. Given that it has been established that the full gender recognition fee of £140 would be inappropriate for those earning under the upper threshold (£28,415), and that gender recognition should be free for those earning under £18,948, it would be very unfair if a significant extra cost was added on top. It may also be distressing for trans people to have (albeit temporarily) to enter a same sex marriage in the "wrong" gender, on the way to the mixed-sex marriage in the gender they identify as. A preferable alternative would be for the conversion of the civil partnership to a mixed-sex marriage to proceed in a single step, at the same time as the award of full gender recognition.

10. The other difficulty presented by these provisions is that clause 9 does not allow conversion to marriage for civil partnerships registered under the law of other countries. Some foreign jurisdictions provide for such conversion under their own law, but others do not. For people in civil partnerships from countries that do not provide conversion, gender recognition will still not be possible without dissolving the civil partnership first, and then marrying as a mixed-sex couple after gender recognition. This creates a period during which the couple’s relationship has no legal recognition, and is no improvement on the current situation.

11. We would hope therefore that a solution could be found that would allow an overseas civil partnership to be converted to a mixed-sex marriage under English law on the issue of a full gender recognition certificate, without the need to dissolve the civil partnership first. This could either be done by allowing overseas civil partnerships generally to be converted to same-sex marriages under English law, before gender recognition is granted, or (preferably, for the reasons outlined above) by providing for simultaneous grant of gender recognition and conversion of the overseas civil partnership directly to a mixed-sex marriage.

12. Secondly, we are concerned about the people who have already dissolved their marriage in order to obtain gender recognition, when they would have preferred to continue their marriage. It is likely that people in that situation will have registered a civil partnership to replace their lost marriage, after they received gender recognition. They will in future be able to convert that civil partnership to a marriage under clause 9 of the bill, and that marriage will in effect be backdated to the date they registered the civil partnership. However, that will still leave them in a position where they have been married twice, with an unmarried gap between those marriages. The first marriage was as a mixed-sex couple, before gender recognition, with that marriage dissolved contrary to their true wishes, in order to obtain gender recognition. The second marriage was as a same-sex couple after gender recognition, with a gap between the two marriages, during which they lost legal protection.

13. Clause 9 already operates retrospectively, to allow the same-sex marriage resulting from a converted civil partnership to be treated as having started on the date of registration of the civil partnership (which of course may predate the commencement of the bill). We would hope therefore that clause 9 could be amended to provide, where a couple dissolved their marriage to obtain gender recognition and subsequently registered a civil partnership, that on converting that civil partnership to a marriage, that marriage could be treated as having started at the start of their original marriage, in effect restoring the continuity of their marriage.

14. Thirdly, we are concerned about the position for trans people who transitioned a long time ago, and who would therefore find it difficult to assemble the same level of medical evidence for the Gender Recognition Panel as a recently transitioned person could. The Gender Recognition Act provided (in section 27) a two-year transitional arrangement for long-term transitioned people, defined as people who had lived in the acquired gender for at least six years. They were able to obtain gender recognition with only one medical report, rather than two, and  from a medical practitioner who did not have to be an expert gender specialist. The transitional arrangement also enabled applicants to apply based on evidence of having undergone treatment to modify sexual characteristics, as an alternative to providing evidence of a diagnosis of gender dysphoria. This was valuable because obtaining confirmation of a diagnosis of gender dysphoria can be extremely difficult after a long period of time. The transitional arrangement expired in 2007.

15. However, there will be some trans people who transitioned a long time ago who were unable to take advantage of that transitional arrangement, because they did not want to dissolve their marriage. In our view, once same-sex marriage is possible and they can potentially obtain gender recognition without dissolving their marriage, they should have the opportunity of using the arrangements for gender recognition for long-term transitioned people that were originally available when the Gender Recognition Act was introduced.

16. Furthermore, it has become clear that long-term transitioned people are still coming forward for gender recognition who had not previously heard about it. The longer a person has been transitioned, the less likely they are to have heard about the availability of gender recognition, because the less likely they are to be in contact with trans organisations. We understand that this has caused an increase in workload for the Gender Recognition Panel and long delays in handling such applications, because it is harder for such people to obtain two medical reports. It also causes a great deal more difficulty for the applicant and may prevent them from obtaining gender recognition at all.

17. We therefore consider that it would be in the interests of trans people and of the Gender Recognition Panel, if the original rules for allowing applications by people who have been transitioned for at least six years, with one medical report only and on the basis of having had treatment to modify sexual characteristics, could be reinstated on a permanent basis.

Equality Act amendments (schedules 4 and 7)

18. The bill makes a number of amendments to the Equality Act 2010, which is a reserved matter for Scotland. By virtue of clause 17(5), these amendments apply to Scotland. The amendments made by paragraphs 38 to 40 of schedule 7 provide that, in general, less favourable treatment of same-sex married people, compared to mixed-sex married people, is unlawful discrimination on grounds of sexual orientation. There are exceptions in paragraph 41 (and for England and Wales in clause 2(5)) for religious freedom. We agree with these provisions.

19. Paragraph 15 of schedule 4 also amends the Equality Act. It provides that occupational pension schemes are not required to treat same-sex marriages equally to mixed-sex marriages. A survivor’s pension for a bereaved spouse in a same-sex marriage may at the discretion of the pension scheme be based on the deceased spouse’s pension contributions only back to 5th December 2005. In contrast, survivor’s pensions in a mixed-sex marriage are based on the deceased spouse’s contributions since 1978 for a widow’s pension, and since 1988 for a widower’s pension.

20. This means that "equal marriage" is not equal as respects survivor’s pensions. The pension provided by the same scheme to a bereaved married person, married on the same day and with the same spousal contribution history, may be many thousands of pounds less per year if the marriage was same-sex than if it was mixed-sex. We appreciate that survivor’s pensions also differ between widows and widowers, but that is no reason for allowing a much bigger difference in the case of same-sex marriages. We believe strongly that pension schemes should be required to base survivor’s pensions for same-sex marriages on contributions since 1988. This would be in line with the policy already proposed by the UK Government for public sector pension schemes.

21. We recognise that perhaps two thirds of private sector pension schemes already choose to base civil partnership survivor’s pensions on contributions since 1988, and will probably do so for same-sex marriage also. However, equality law has never been targeted at the majority who choose to provide equality voluntarily, but exists to deal with the minority who do not. We note also that the Employment Tribunal has recently found, in the case of Walker v Innospec (case number 2411316/2011, judgment issued 13 th November 2012 ), that basing a civil partner’s survivor’s pension only on contributions since 2005, rather than 1988 as is the case for widowers’ pensions, is a breach of EU employment equality law. That ruling is currently being appealed.

Gender recognition and pensions

22. The problem of pension discrimination is particularly acute for trans people. Where, under the provisions of the bill, a trans person obtains gender recognition without dissolving their marriage, the marriage will switch from being, legally, a mixed-sex marriage to a same-sex marriage. The dates from which pension contributions will count towards survivor’s pensions will instantly switch from 1978 for the original husband’s contributions and 1988 for the original wife’s, to 1988 for both (in public sector and some private sector schemes), and to 2005 for both in private sector schemes that only provide the minimum benefits allowed under the Equality Act 2010.

23. The result will be an instant drop in accumulated pension rights for one or both spouses, significantly reducing the available pension, in some cases to a small fraction of what would originally have been paid. This will price gender recognition out of the reach of some trans people who are married. The bill sets out to protect the marriages of trans people and their spouses, so that couples can safely choose to obtain gender recognition. However, the drop in pension rights will make "protected marriage" a myth for some couples.

24. We recognise that the UK Government has taken steps in the bill to protect state pension rights for married couples when one obtains gender recognition. However for the reasons stated in the preceding two paragraphs, we think it is vital that the bill includes a general rule protecting occupational pension rights of married couples when one of them obtains gender recognition. There will be no significant cost to this, since the protected pension rights will simply be those that would have been payable had the person not applied for gender recognition, and therefore represent no additional or unplanned cost to pension schemes.

February 2013

Prepared 27th February 2013