Civil partnerships in Scotland: consultation analysis

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, and this would mean that the approach in Scotland would be in line with that now taken in England and Wales. No legislative changes would be required and the consultation paper noted that this approach would not give rise to any costs or savings.

The consultation asked two questions specifically about the no change option.

The case for no change

The consultation paper set out the following arguments in favour of the no change option:

• 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. After five years, for example, reliable evidence will be available, through the data published by National Records of Scotland ( NRS), of the numbers of same sex couples who continue to choose to enter into civil partnership after the option of marriage became available to them.
• 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.
• This option is simple and straightforward.

Question 1: Please provide any additional arguments you wish to make in favour of the no change option.

A total of 136 respondents made a comment ^[2] at Question 1.

Practical case for no change

In line with the arguments set out in the consultation paper, a number of those commenting at Question 1 focused on practical or pragmatic reasons for not making any changes at this time. With specific reference to the arguments made in the consultation paper, connected or supporting further points made included:

• Inadequate consideration has been given to the implications of making further changes at this stage, particularly given that the Marriage and Civil Partnership (Scotland) Act 2014 has only recently come into force.
• A period of no change would allow for information on demand for, and attitudes towards, both same and opposite sex civil partnership to be gathered.

Additional arguments made in favour of the no change option were:

• It would keep the provision in Scotland the same as that offered in England and Wales.
• Making changes would be expensive and for no discernible benefit.

Support for same sex civil partnership

Specific reasons given for the continuation of same sex civil partnerships, albeit not necessarily within the context of no other changes, included that they recognise loving and committed relationships between same sex couples, and have brought happiness to thousands of couples since their introduction. It was also suggested that there is evidence to suggest likely future demand for same sex civil partnerships, with a 2015 survey carried out by a third sector/equality organisation finding that 32% of LGBTI respondents would consider a same sex civil partnership.

Other comments made in support of same sex civil partnership included:

• They offer a legal arrangement for same sex couples who do not agree with marriage on cultural, sociological or religious grounds. In particular, they allow a relationship to be affirmed whilst preserving room for religious conscience.
• To require existing civil partnerships to be converted into marriages could diminish relationships that couples have chosen to enter into freely and in good faith ^[3] .
• They allow for recognition of same sex civil partnerships registered outwith Scotland. This could only continue while civil partnership law remains in place.
• They have the advantage of not requiring a ceremony for those who do not wish to have one. They also offer a simpler and cheaper option to have a union legally recognised. ^[4]

Opposite sex civil partnership

Other respondents focused on support for, or opposition to, the introduction of opposite sex civil partnerships. These issues are covered in greater detail under Question 5, but in summary comments tended to be broadly in line with one or other of the following stances:

• Disagreement with the concept of civil partnership and of it being made available to opposite sex couples in particular. Most of those raising this issue at Question 1 saw marriage as the better or only legitimate option for opposite sex couples. Some also noted that they disagreed with legal recognition being given to same sex relationships, whether through civil partnership or marriage.
• Support for equal and equivalent provision for both same and opposite sex couples, including through the introduction of opposite sex civil partnerships.

The case against no change

The consultation paper set out the following arguments against the no change option:

• There would continue to be an imbalance. Same sex couples seeking to enter a registered relationship would continue to have the option of marrying or entering into a civil partnership whereas opposite sex couples would only have the option of marriage.
• There would continue to be a separate and distinct status for same sex couples. It can be argued that this goes against the general approach of treating same sex couples in the same way as opposite sex couples.

Question 2: Please provide any additional arguments you wish to make against the no change option.

A total of 213 respondents made a comment ^[5] . Following a similar pattern to Question 1, a number of respondents re-stated or noted agreement with one or both of the two arguments against the no change option presented in the consultation paper.

Support for opposite sex civil partnership

A set of connected or supporting points came from a standpoint of supporting the introduction of opposite sex civil partnership. These included that:

• What the consultation paper refers to as an imbalance would be more appropriately described as an inequality or as discriminatory.
• The majority of jurisdictions around the world that have same sex marriage either offer civil partnership to both opposite and same sex couples or to neither.
• England and Wales is one of the exceptions, but the UK Government has been clear that their policy of no change is for the time being only.

Additional arguments made against the no change option included that there may be very limited support for this approach amongst the general public. It was reported that in a 2015 survey carried out by a third sector equality organisation, only 1% of LGBTI respondents and 2% of non- LGBTI respondents supported the no change option. Other arguments included:

• Being simple and straightforward is not a valid argument against making a change, particularly if not making that change perpetuates inequality.
• An opposite sex couple with a civil partnership registered in another country has no civil partnership-related protections under Scots law, whilst same sex civil partners do.
• Under the current arrangements, someone is effectively 'outing' themselves by indicating they are in a civil partnership. This would not be the case if civil partnership was open to all.

Other points highlighted the impact of the no change option on bisexuals and transgender people. The particular issues noted included that, if no changes are made, bisexual and trans people may have limited options depending on the gender identity of their partner. More specifically it was suggested that:

• Bisexuals in same sex relationships may choose between marriage and civil partnership, while those in opposite sex relationships only have access to marriage.
• Transgender people in civil partnerships must convert those civil partnerships into marriage prior to obtaining gender recognition.
• Transgender people who have non-binary gender identities are effectively barred from civil partnership if the gender recorded on their birth certificate 'indicates' that they are in an opposite sex relationship, thus negating their gender identity.
• More generally, the current options reinforce binary gender options by forcing people to identify as either male or female, to determine whether or not they can enter into a civil partnership.

Opposition to any new civil partnerships

Other respondents opposed the no change option because they did not wish to see any new civil partnerships, whether same or opposite sex. This perspective is outlined further below, but in summary the issues raised under Question 2 included:

• With the introduction of same sex marriage, the concept of civil partnership is now redundant.
• With the introduction of same sex marriage, civil partnerships are now confusing for the general public. It would be better to have a single partnership arrangement which was common to all couples and which would be easy to understand as a consequence.
• Having an additional type of legal partnership to marriage creates extra work for registrars at a time of budget constraints.