Civil partnerships in Scotland: consultation analysis

Executive Summary

Introduction

This summary provides an overview of the analysis of the responses received to the Scottish Government's Review of Civil Partnership consultation. The Scottish Government made a commitment to carry out a review of civil partnership during the Parliamentary passage of the Marriage and Civil Partnership (Scotland) Act 2014. This consultation forms part of that review.

The consultation paper outlined three possible options going forward. These were:

• No change, so that civil partnerships would remain available for same sex couples only.
• No more new civil partnerships to be entered into in Scotland from a date in the future. People already in a civil partnership could stay in them, if they wish.
• The introduction of opposite sex civil partnership.

The consultation ran from 22 September 2015 to 15 December 2015, with a total of 411 responses received. The very significant majority of responses (93%) were submitted by individual members of the public. The remaining 7% of responses were submitted by groups or organisations.

The no change option

Under the no change option only same sex couples would continue to have the option of entering into a civil partnership.

The case for no change

The consultation paper set out three arguments in favour of the no change option: that it may be preferable to wait for five years from the implementation of the 2014 Act before making any further significant changes to civil partnership and marriage law; that initial signs are that there continues to be a modest demand for same sex civil partnerships in 2015 even though same sex couples can now marry; and that this option is simple and straightforward.

A number of those commenting re-stated or noted agreement with one or more of the three arguments in favour of the no change option. Connected points made included that inadequate consideration has been given to the implications of making further changes at this stage, that a period of no change would allow for information on demand for both same and opposite sex civil partnership to be gathered and that there is evidence to suggest likely future demand for same sex civil partnerships.

Additional arguments made included that same sex civil partnerships offer a legal arrangement for couples who do not agree with marriage on cultural, sociological or religious grounds and allow for same sex unions to be recognised and affirmed whilst preserving room for religious conscience.

The case against no change

The consultation paper set out the following arguments against the no change option: that there would continue to be an imbalance between same sex and opposite sex couples; and that there would continue to be a separate and distinct status for same sex couples. Again a number of respondents re-stated or noted agreement with one or both of the arguments presented in the consultation paper.

Connected or supporting points made included that rather than the imbalance suggested in the consultation paper this option is discriminatory. It was also noted that the majority of jurisdictions that have same sex marriage either offer civil partnership to both opposite and same sex couples or to neither.

Additional arguments made against the no change option included that the general public may be more likely to support an option that includes the introduction of opposite sex civil partnership. Another perspective was that just because the no change option is simpler does not make it right. The impact of no change on bisexuals and transgender people was also raised, including that if no changes are made, bisexual and trans people may have limited options depending on the gender identity of their partner, and that transgender people in civil partnerships would have to continue to convert those civil partnerships into marriage prior to obtaining gender recognition.

No new civil partnerships

Under this option no new civil partnerships could be entered into in Scotland from a given date in the future. Existing civil partners could stay in their civil partnership if they so wished, and these civil partnerships would continue to be recognised in Scotland.

The case for no new civil partnerships

The consultation paper set out the following arguments in favour of the no new civil partnerships option: it reduces complexity; it removes a separate status for same sex couples; and it is more likely that a couple would have their marriage recognised in foreign countries as opposed to their civil partnership.

Those who agreed with there being no new civil partnerships generally appeared to come from one of two broad standpoints. One perspective was that civil partnerships became obsolete with the introduction of same sex marriage and a line should have been drawn under them at that point. Respondents taking this view made a number of supporting arguments, including that civil partnerships were introduced at a time when same sex couples could not get married and are rooted in inequality, and that current levels of demand suggest that marriage is the preferred option amongst same sex couples.

The alternative perspective was that there should never have been, and still should not be, the type of legal recognition of same sex relationships offered by civil partnerships. Respondents taking this view tended to see civil partnerships as having been the first step down a dangerous road, which would lead to the institution of marriage being undermined.

The case against no new civil partnerships

The consultation paper set out four arguments against the no new same sex civil partnerships option. These were that: it would remove an option for which the Scottish Government expects that there will be a continuing, though modest, demand; that it allows same sex couples who believe marriage to be a union meant for opposite sex couples to gain rights and recognition of their relationship without getting married; that those in civil partnerships might feel some pressure to convert them to marriages; and that the Government's consultation on the registration of civil partnership and same sex marriage showed support for retaining civil partnership.

Points raised by respondents who did not agree with there being no new civil partnerships included that they have played, and continue to play, a very important role for some people and that the introduction of a 'sunset clause' would be premature. It was also suggested that some people may prefer civil partnership not because they believe marriage to be a union meant for opposite sex couples, but because they object to the institution of marriage on other points of principle.

Other issues highlighted by respondents included that it is incumbent upon the Scottish Government to take forward an option which upholds the principles of equality, and that civil partnerships can play an important role for LGBTI people of faith whose religious institutions do not recognise same sex marriage. It was also suggested that, in the long term, abolishing civil partnerships would involve substantial changes to both primary and secondary legislation, thereby consuming valuable resources and parliamentary time with no discernible benefit.

Opposite sex civil partnership

The consultation paper noted that the Scottish Government has carefully considered the possible introduction of opposite sex civil partnership but is not persuaded that it should be introduced in Scotland. The main reasons given for this decision were: that the Government considers that demand would be low; that its recognition elsewhere in the UK and overseas would be limited; that society's understanding of it might be limited; that Scots law provides some rights already for cohabitants; that it is already possible to have a civil (or belief) marriage ceremony; that it would increase complexity; and that the costs would be disproportionate.

Most but not all of those commenting made their support for, or opposition to, the introduction of opposite sex civil partnership clear. Those who did not express a clear view tended to comment on the complexity of the issue and/or consider the various arguments for and against.

Opposition to opposite sex civil partnership

The concern raised most frequently by those who agreed with the Government's overall position was that the introduction of opposite sex civil partnership would undermine the institution of marriage. Under this broader concern, the most frequently raised issues included that marriage is the established, long-standing arrangement through which opposite sex couples make a lifelong commitment to each other and that there is no need for an alternative. Other concerns included that opposite sex civil partnership would not require an equivalent level of commitment to marriage and would be less likely to result in long-standing, stable unions, to the particular detriment of children.

It was also suggested that there is no evidence of real demand for opposite sex civil partnership and that creating an additional set of arrangements would be difficult and/or costly and resources could be better deployed elsewhere.

A representative body for professionals highlighted a number of issues of law that would arise with the introduction of opposite sex civil partnerships, including noting that the potential change would need to be looked at within a much broader context than simply considering the impact on the couples themselves.

Whilst the majority of those opposing the introduction of opposite sex civil partnership focused on defending the institution of opposite sex marriage, a small number felt that the introduction of same sex marriage has removed the need for any form of civil partnership going forward. This group disagreed with opposite sex civil partnership being introduced and also thought that same sex civil partnership is no longer required.

Support for opposite sex civil partnership

Those who supported the introduction of opposite sex civil partnerships commented most frequently that it would offer equality, with all couples having the same options available to them. Further, it was suggested that opening up of civil partnership to opposite sex couples is the only way to remove sexual orientation discrimination from the law on marriage and civil partnership without removing the important and valued choice of civil partnership from same sex couples.

Other comments questioned the Scottish Government's assertion that demand for opposite sex civil partnership may be low, including individual respondents reporting that they wished to enter into an opposite sex civil partnership. Reasons given for wanting to enter into a civil partnership included wanting greater legal and financial protections, not being able to remarry on religious or ethical grounds, having been in an unhappy or abusive marriage and considering marriage to be a patriarchal institution.

Other possible advantages which respondents highlighted as to be derived from the introduction of opposite sex marriage included that if someone in a civil partnership undergoes gender reassignment, the couple's civil partnership would continue to be legally recognised upon receiving gender recognition.

BRIA, EQIA & CRWIA

The Scottish Government has prepared a partial Business and Regulatory Impact Assessment ( BRIA), a partial Equality Impact Assessment ( EQIA) and a screening report for the Child Rights and Wellbeing Impact Assessment ( CRWIA). Each of these was appended to the consultation paper.

Comments made about the Partial EQIA or other equalities impact-related issues included that the no change option would continue a situation in which opposite and same sex couples are treated differently, and that introducing opposite sex civil partnership would benefit trans people in civil partnerships since it would allow them to access gender recognition without first being forced to dissolve their civil partnership or convert it to a marriage.

Comments made about the Partial BRIA or other business or regulatory-related issues included that the BRIA does not support arguments made elsewhere in the consultation paper that there would be disproportionate costs associated with introducing opposite sex civil partnerships. It was also suggested that any increased workload for Registrar Services is not a valid reason for not introducing opposite sex civil partnership.

Comments made about the CRWIA Screening Report or other child-related issues included that the Screening Report is a welcome addition and that the impact on children of any changes to the civil partnership framework must be examined with care and rigour.