Registration of Civil Partnerships, Same Sex Marriage: Consultation Analysis

8 Further comments

8.1 The final question (Question 20) gave respondents the opportunity to register any further comments they wished to make about the issues covered in the consultation generally, but also asked specifically for any views on:

• The potential implications of the proposals for transgender people;
• Possible transitional arrangements;
• Recognition of Scottish same sex marriages elsewhere;
• Forced marriage;
• Sham marriage;
• Potential financial implications; and
• Potential equality implications.

8.2 This section focuses on issues that were raised at Question 20 but which have not been covered elsewhere in the analysis set out within this report. Many of the comments made at Question 20 were a general summation of issues covered elsewhere within the consultation and hence have not been repeated here.

8.3 Some respondents felt that several of the issues on which further comments were being invited were complex and required a reasonable level of knowledge and understanding in order to make an informed contribution. It was also suggested that the issues of forced and sham marriages were too important to be added to a consultation with a clearly distinct focus of its own. Those that did comment tended to acknowledge the seriousness of these issues and often also suggested that those involved in arranging such 'marriages' should be subject to the severest penalties.

Potential implications of the proposals for transgender people

8.4 Most of those that commented on the implications of the proposals for transgender people made a simple point that transgender people should have the same basic rights to marry (or stay married to) the person they love as anyone else. Whilst some respondents did suggest that no specific provisions should be made that support or encourage people to make changes to the body that they were born with, many others welcomed the benefits that the introduction of same sex marriage could bring to transgender people.

8.5 In particular, a number of respondents commented that it seemed wrong and even cruel that a married transgender person has to divorce in order to have their acquired gender legally recognised through a gender recognition certificate. A small number of respondents commented that the same would apply to someone in a civil partnership - in other words, they too would have to have their civil partnership dissolved in order to obtain a full gender recognition certificate. The financial and emotional implications of divorce or dissolution, both on the couples involved, but also their children and wider families, were raised by some respondents. It was suggested that as a consequence, some people may choose to remain married and forgo gender recognition and that this can be very damaging for those involved. A small number of respondents went on to make specific technical points in relation to the Gender Recognition Act and how any changes could be implemented in Scotland.

Possible transitional arrangements

8.6 The majority of comments made on possible transitional arrangements focussed on making any transition as simple and straightforward as possible. Many respondents that commented questioned whether civil partnerships would need to be dissolved before couples could enter into a marriage, or whether they would simply be recognised as a marriage if both parties were in agreement. Those that expressed their view generally favoured the latter option.

8.7 A straightforward change of status was preferred by a number of respondents and was seen as having the advantage of avoiding solicitor or other fees being incurred in dissolving the civil partnership. It was also suggested that no significant registration costs should be incurred by those currently in civil partnerships and who wish to become a married couple.

8.8 Technical difficulties that would need to be addressed should a conversion mechanism be put in place were recognised by some respondents, including the effective start date of the marriage and the arrangements for the partnership property of the civil partnership being included in the matrimonial property of the marriage.

8.9 Finally, whilst some respondents suggested that any transitional arrangements put in place should be time limited - for example, that those in a civil partnership should have up to a year to re-register their relationship - others suggested that conversion arrangements which would work in either direction (civil partnership to marriage or marriage to civil partnership) should become a permanent part of the law.

Recognition of Scottish same sex marriages elsewhere

8.10 As with transitional arrangements, a number of respondents made a brief point on the recognition of Scottish same sex marriages elsewhere, but only a few went on to make more detailed comment. Some of these respondents suggested that Scotland should do all it can to ensure, and indeed should start from the assumption that, Scottish same sex marriages should receive full recognition in other jurisdictions. However, a number of other respondents suggested that same sex marriage would be considered entirely unacceptable to many other countries and nothing Scotland does or says will or should change that.

8.11 Some respondents noted that (at the time of responding) a consultation on same sex marriage was due to be issued in England and Wales in March 2012 and that, should same sex marriage be introduced on both sides of the border, there would be no greater issues than those that currently exist because of the differences in Scottish marriage law and the corresponding legislation covering other parts of the UK. Some respondents felt that there could be challenges to be overcome if Scotland was alone in the UK in allowing same sex marriage, although these same respondents generally thought any issues should be no more difficult to resolve than in other areas where separate legal arrangements apply or in which the balance of devolved and reserved powers has an impact. Those that commented further generally suggested a robust approach, based on well-established international law on the inter-country recognition of marriages, should be adopted in discussions with countries beyond the UK.

Potential financial implications

8.12 Whilst a limited number of respondents made substantive comments on transitional arrangements or the implications of the proposals for transgender people, the financial implications of the proposed changes attracted wider comment. As at many of the other questions, respondents' views were almost always very clearly linked to their stance on the proposed introduction of religious civil partnership or same sex marriage, but tended to focus on the latter.

8.13 Some respondents commented on the costs associated with making any immediate changes and the administrative costs associated with any new system. A small number of respondents suggested these costs would be considerable, although many expected them to be relatively insignificant and essentially very much in line with the costs currently associated with the administration of civil partnerships and marriages. Some respondents were of the view that these relatively modest costs would in fact be a small and entirely rational cost to pay for creating a more equal society, while others could see no reason why, as likely tax payers, people wanting to enter into a same sex union should not receive the same services from the State as those entering into an opposite sex union.

8.14 Others commented on the potential total cost of the proposed changes to the UK, including if opposite sex civil partnerships were to be introduced. An estimated cost of £5 billion to the UK over a 10 year period was cited by very many respondents, whilst the basis on which any Scottish Government or wider UK figures for the cost of any changes had been calculated was questioned by some respondents and further clarity was sought. These questions were often connected to a wider point that the Scottish Government simply has no idea as to how many same sex couples might opt for marriage or a religious civil partnership and hence has no solid information base from which to develop any indicative costs.

8.15 Finally, some respondents commented on the suggestion within the consultation paper that Scotland could benefit from increased revenue from tourism if same sex couples travelled to Scotland to celebrate their wedding. Some respondents commented that this was an extraordinary factor to take into consideration when making a decision they believed could have such profound effects on Scottish society.

Potential equality implications

8.16 As with the debate more widely, comments made specifically about the equality implications of the proposals tended to see respondents falling into one of two broad camps. Those in favour of the proposals often reiterated the positive contribution these changes would make to create a more equal society in which marriage is simply marriage and no categorisation or qualification based on sexual orientation is necessary. Many saw the proposals as wholly benign and consistent with existing equality and anti-discrimination practice and legislation.

8.17 However, those generally opposed to the changes often commented that the proposals at best failed to take account of, and at worst showed a flagrant disregard for, the right for Scotland's religious communities to worship freely and within the tenets of their faith. Far from creating a more equal society, some commented that Scotland could see a return to religious persecution and become a country in which people were forced to choose between either breaking the law or violating their religious convictions. Many were also clear that their duty to God should and would come first.

Other comments

8.18 There were two additional points that were raised by a number of respondents and which hence warrant mention here.

8.19 First, a large number of respondents raised concerns that the consultation paper specifically, and the proposals more widely, appeared to give no consideration to the best interests of Scotland's children and future generations. In raising this issue, many respondents suggested that the proposals would undermine family life and that, as a result, more children would be raised outside the traditional family unit headed up by a mother and a father. There were also very considerable concerns that schools would be expected to promote an alternative, new definition of marriage, and that this would not only confuse the children themselves but would also put teachers who believed same sex marriage to be wrong in an impossible situation.

8.20 Finally, a number of respondents commented that the proposed introduction of same sex marriage would be of such fundamental significance to the future of Scottish society that it would only be appropriate to call a referendum and ask Scotland's people to decide.