Marriage and Civil Partnership (Scotland) Bill

Annex K: Equality Impact Assessment Record

Title of policy/ practice/ strategy/ legislation etc	The Marriage and Civil Partnership (Scotland) Bill
Minister	Cabinet Secretary for Health and Wellbeing
Lead official	Simon Stockwell, Family Law Team
Officials involved in the EQIA	name	team
	Julia McCombie	Gender and LGBT Equality and Violence Against Women team.
Directorate: Division: team	The Equality Unit
Is this new or revision to an existing policy?	New Policy

Screening

Policy Aim

1. To introduce:

same sex marriage;
religious and belief registration of civil partnership;
to allow transgender/transsexual people who are changing gender to stay married; and
the formal establishment of belief ceremonies as a third way of getting married (alongside religious and civil ceremonies).

2. Same sex couples as the law stands can enter into a legal union through a Civil Partnership, as introduced in 2005 following the Civil Partnership Act 2004. The Act establishes civil partnerships in the United Kingdom with responsibilities and rights which are very similar to marriage.

3. Currently same sex marriage and the religious registration of civil partnership is not available.

4. Same Sex Marriage cannot be introduced without primary legislation. Government intervention is required to allow access to marriage for all couples regardless of sexual orientation.

5. The legislation will contribute to the Scottish Government's National Outcomes - Wealthier and Fairer.

Who will it affect?

6. The policy will affect lesbian, gay, bisexual and transgender/transsexual people, religious and belief celebrants and perhaps civil registrars.

7. We undertook two consultations. The first consultation on the principle of same sex marriage was carried out between 2 September and 9 December 2011. The second consultation, focussing on the detail of the draft Bill and protections in relation to religious bodies and celebrants, freedom of speech and education, is taking place between December 2012 and March 2012. This EQIA forms part of this consultation.

8. We have also met face to face with a wide variety of interested bodies and stakeholders, both during and after the consultation period. This engagement included roadshows and key stakeholder events as well as regular individual meetings with interested bodies.

Groups of people affected positively

Sexual orientation

9. We propose to allow a person to marry another person of the same sex. Currently a same sex couple would only be able to register a Civil Partnership.

Gender reassignment

10. We propose that a couple which includes a transgender/transsexual person will no longer be required to divorce for the person to receive legal recognition in his or her acquired gender, so long as the couple both wish to stay in the marriage. We also propose that a transgender/transsexual person in a civil partnership should be able to change that civil partnership into a marriage, if the couple wish to stay in a legally recognised relationship.

Religion and belief

11. We propose to allow a religious celebrant (or a "belief" celebrant such as a humanist) to solemnise an opposite sex or same sex marriage or to register a Civil Partnership. This would mean that a couple would be able to be married by either a civil registrar or by a religious or "belief" celebrant. A same sex couple could have their Civil Partnership registered either by a civil registrar, by a religious celebrant or by a "belief" celebrant.

12. This proposal will also mean that a religious or "belief" celebrant is able to marry a couple, including a same sex couple where that is in line with his or her religion or belief. Similarly, religious celebrants or "belief" celebrants will be able to register same sex couples who wish to enter into a civil partnership.

Groups of people affected negatively

Religion and belief

13. There may be an effect on people who believe that marriage should not be available to same sex couples.

14. There may be an effect on religious and "belief" celebrants who do not wish to solemnise a same sex marriage or register a Civil Partnership.

15. However the Bill will not be introduced or enforced without appropriate protections for such religious and "belief" celebrants who do not wish to carry out such ceremonies.

16. A number of religious bodies have signalled that they wish to be able to carry out same sex marriage and religious Civil Partnerships.

What might prevent the desired outcomes being achieved?

17. There is no evidence to suggest there are issues which will prevent the desired outcomes being achieved.

Stage 1: Framing

Results of framing exercise

18. We have held a number of meetings with colleagues in equality, education, care and justice, analytical services and the National Records of Scotland.

Extent/Level of EQIA required

19. Following the framing exercises, we believed the extent of the EQIA required was high, given the significant impact on the protected characteristics of religion and belief, sexual orientation and gender reassignment. This "high" rating is reflected in provisions in the Bill to protect religious bodies and celebrants.

Stage 2: Data and evidence gathering, involvement and consultation

Include here the results of your evidence gathering (including framing exercise), including qualitative and quantitative data and the source of that information, whether national statistics, surveys or consultations with relevant equality groups.

Note: Weblinks to sources of information are included at the end of this EQIA.

Characteristic	Evidence gathered and Strength/quality of evidence	Source	Gaps identified and action taken
AGE	In 2011, the majority of people who entered into a Civil Partnership were between the ages of 35 and 44.⁵⁹ Evidence suggests that older people (35 yrs +) are more likely (although declining) to be opposed to same sex marriage than the younger generation (18 - 34 yrs) ⁶⁰ Research that directly compared outcomes for children with gay and lesbian parents with outcomes for children with heterosexual parents found no reliable disparities in mental health or social adjustment. Research shows that the most important factor in determining children's wellbeing and outcomes is family stability.	National Records of Scotland - 2011 Marriage and Civil Partnership Statistics Scottish Social Attitudes Survey 2010 Mountney K (2011). Together and apart: supporting families through change. Rees G et al (2012). Topic report. Edinburgh: About Families. The Good Childhood Report 2012: A review of our children's well-being. London: The Children's Society. Goodman A and Greaves E (2012). Cohabitation, marriage and relationship stability. London: Institute for Fiscal Studies. Herek GM (September 2006). Legal recognition of same-sex relationships in the United States: a social science perspective. The American Psychologist 61(6): 607-621.	No gaps identified.
DISABILITY	No Evidence	n/a	n/a
SEX	From 2005-2011, 1860 civil partnerships were between men and 2001 were between women. The data suggests that in the long term, more women than men will wish to register as civil partners - there is no evidence on why this is the case. Gender differences exist in relation to sexual orientation and gender reassignment attitudes. Evidence shows that men are a little more likely than women to be unhappy with the idea of a close relative forming a relationship with someone of the same sex as themselves (52% of men compared with 45% of women), or with someone who has had a sex change operation (35% of men compared with 29% of women).⁶¹ Men (34%) are more likely than women (21%) to believe that same sex relationships are always/mostly wrong.⁶²	National Records of Scotland - 2011 Marriage and Civil Partnership Statistics Scottish Social Attitudes Survey	No gaps identified.
GENDER REASSIGNMENT	Out of 523 full Gender Recognition Certificates (GRC) granted in the UK in financial years 2010/11 and 2011/12⁶³ , it is estimated around 52 were resident in Scotland. This is based on a 10% estimate for Scotland. Incidence, in 2010, was estimated to be 12,500 people aged over 15 in UK presenting for treatment of gender dysphoria, representing a growth trend from 1998 of 11%.⁶⁴ Of those in the UK who have presented for treatment, 7,500 had undergone transition by 2010.⁶⁵ It is estimated, again based on 10%, that around 750 people will reside in Scotland.	Gender Recognition Panel Statistics 2009 - 2012 (MoJ) Gender Identity Research and Education Society 2011.	No gaps identified.
SEXUAL ORIENTATION	In 2011, 554 same sex couples registered a Civil Partnership. We have heard some anecdotal evidence of discrimination experienced by couples in a Civil Partnerships e.g. staff in large institutions not understanding what a Civil Partnership is.	National Records of Scotland - 2011 Marriage and Civil Partnership Statistics. Consultation with LGBT organisations.	No gaps identified.
RACE	No Evidence	n/a	n/a
RELIGION OR BELIEF	In 2011, there were the following number of marriages registered by: o Civil Registrar - 15,092 o Religious ceremony - 14,043 o Humanist Society of Scotland - 2,486 In 2001 (from the most up-to-date census) 3,389,500 (66.96%) people were registered in Scotland as having a religion.⁶⁶ A number of consultation responses to the last consultation suggested the introduction of same sex marriage could undermine marriage.⁶⁷	National Records of Scotland - 2011 Marriage and Civil Partnership Statistics. National Records of Scotland - The 2001 Census Analysis of last consultation.	No gaps identified.

Stage 3: Assessing the impacts and identifying opportunities to promote equality

Having considered the data and evidence you have gathered, this section requires you to consider the potential impacts - negative and positive - that your policy might have on each of the protected characteristics. It is important to remember the duty is also a positive one - that we must explore whether the policy offers the opportunity to promote equality and/or foster good relations.

Do you think that the policy impacts on people because of their age?

Age	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination, harassment and victimisation			√	There is currently no unlawful discrimination, harassment and victimisation. All people over the age of 16 can enter into an opposite sex marriage or a same sex Civil Partnership.
Advancing equality of opportunity	√			Same sex marriage and religious and belief registration of a Civil Partnership will be open to someone aged 16 or over. Some people expressed concern on the impact of children being brought up by a same sex couple. The Scottish Government believes it is best for children to be brought up by two loving parents, where this is practicable and where it is safe to do so. Most children now in Scotland are born outside marriage but around 95%⁶⁸ of births are jointly registered by both parents. We do not wish to stigmatise children brought up outwith opposite sex marriage or by single parents or by other means (eg by carers). The key issue is that the child should have the best possible start in life and the welfare and wellbeing of the child should be paramount. What matters most, research shows, is not a set family structure. Rather, it's responsible, committed and stable parenting by people who care about the child.
Promoting good relations among and between different age groups		√		Evidence in the Scottish Social Attitudes Survey 2010 suggests that older people are more likely to be opposed to same sex marriage than younger people.

Age

Positive

Negative

None

Reasons for your decision

Eliminating unlawful discrimination, harassment and victimisation

√

There is currently no unlawful discrimination, harassment and victimisation.

All people over the age of 16 can enter into an opposite sex marriage or a same sex Civil Partnership.

Advancing equality of opportunity

√

Same sex marriage and religious and belief registration of a Civil Partnership will be open to someone aged 16 or over.

Some people expressed concern on the impact of children being brought up by a same sex couple.

The Scottish Government believes it is best for children to be brought up by two loving parents, where this is practicable and where it is safe to do so. Most children now in Scotland are born outside marriage but around 95%⁶⁸ of births are jointly registered by both parents.

We do not wish to stigmatise children brought up outwith opposite sex marriage or by single parents or by other means (eg by carers).

The key issue is that the child should have the best possible start in life and the welfare and wellbeing of the child should be paramount. What matters most, research shows, is not a set family structure. Rather, it's responsible, committed and stable parenting by people who care about the child.

Promoting good relations among and between different age groups

√

Evidence in the Scottish Social Attitudes Survey 2010 suggests that older people are more likely to be opposed to same sex marriage than younger people.

Do you think that the policy impacts disabled people?

Disability	None	Reasons for your decision
Eliminating unlawful discrimination, harassment and victimisation	√	There is currently no unlawful discrimination, harassment and victimisation. No person is currently treated less favourably because of a disability.
Advancing equality of opportunity	√	No evidence either way
Promoting good relations among and between disabled and able bodied people	√	No evidence either way

Disability

Positive

Negative

None

Reasons for your decision

Eliminating unlawful discrimination, harassment and victimisation

√

There is currently no unlawful discrimination, harassment and victimisation.

No person is currently treated less favourably because of a disability.

Advancing equality of opportunity

√

No evidence either way

Promoting good relations among and between disabled and able bodied people

√

No evidence either way

Do you think that the policy impacts on men and women in different ways?

Gender	None	Reasons for your decision
Eliminating unlawful discrimination, harassment and victimisation	√	There is currently no unlawful discrimination, harassment and victimisation. Both men and women can enter into an opposite sex marriage and same sex couples into a civil partnership.
Advancing equality of opportunity	√	Evidence from the National Records of Scotland - 2011 Marriage and Civil Partnership Statistics suggests that over time more women are entering into Civil Partnership. It is uncertain why this is the case and what would happen once same sex marriage is introduced.
Promoting good relations between men and women	√	No evidence to suggest either way.

Gender

Positive

Negative

None

Reasons for your decision

Eliminating unlawful discrimination, harassment and victimisation

√

There is currently no unlawful discrimination, harassment and victimisation.

Both men and women can enter into an opposite sex marriage and same sex couples into a civil partnership.

Advancing equality of opportunity

√

Evidence from the National Records of Scotland - 2011 Marriage and Civil Partnership Statistics suggests that over time more women are entering into Civil Partnership. It is uncertain why this is the case and what would happen once same sex marriage is introduced.

Promoting good relations between men and women

√

No evidence to suggest either way.

Do you think your policy impacts on transsexual (transgender) people?

Gender reassignment	Positive	None	Reasons for your decision
Eliminating unlawful discrimination		√	Transgender/transsexual people are able to marry and enter into a Civil Partnership.
Advancing equality of opportunity	√		The evidence suggests there will be a significant increase in equality opportunity. Under the Gender Recognition Act 2004, a person may apply to the Gender Recognition Panel for a full gender recognition certificate that has the effect of providing legal recognition in the acquired gender. If the person is in a marriage or a civil partnership, he or she must currently divorce or dissolve the partnership before receiving a full gender recognition certificate. This is because under the current law, marriage is only open to opposite sex couples and civil partnership is only open to same sex couples. Our proposals change the law so that a person will no longer have to choose between remaining in his or her legal relationship and being recognised in his or her acquired gender. Where the person is married, we propose to allow the couple to remain married should they both consent. And where the person is in a civil partnership, we propose to allow the couple to choose to change their civil partnership into a marriage. This would end the unfavourable treatment of a person who: a) wishes to be recognised in his or her acquired gender and; b) is married or in a civil partnership.
Promoting good relations	√		The proposed policy has raised awareness of issues faced by transsexual (transgender) people.

Gender reassignment

Positive

Negative

None

Reasons for your decision

Eliminating unlawful discrimination

√

Transgender/transsexual people are able to marry and enter into a Civil Partnership.

Advancing equality of opportunity

√

The evidence suggests there will be a significant increase in equality opportunity.

Under the Gender Recognition Act 2004, a person may apply to the Gender Recognition Panel for a full gender recognition certificate that has the effect of providing legal recognition in the acquired gender.

If the person is in a marriage or a civil partnership, he or she must currently divorce or dissolve the partnership before receiving a full gender recognition certificate.

This is because under the current law, marriage is only open to opposite sex couples and civil partnership is only open to same sex couples.

Our proposals change the law so that a person will no longer have to choose between remaining in his or her legal relationship and being recognised in his or her acquired gender.

Where the person is married, we propose to allow the couple to remain married should they both consent.

And where the person is in a civil partnership, we propose to allow the couple to choose to change their civil partnership into a marriage.

This would end the unfavourable treatment of a person who:

a) wishes to be recognised in his or her acquired gender and;

b) is married or in a civil partnership.

Promoting good relations

√

The proposed policy has raised awareness of issues faced by transsexual (transgender) people.

Do you think that the policy impacts on people because if they are lesbian, gay or bisexual?

Sexual orientation	Positive	None	Reasons for your decision
Eliminating unlawful discrimination		√	There is no legal obligation in Scotland or the UK to provide same sex marriage or religious or belief registration of Civil Partnership. Under the current law, a same sex couple may register a Civil Partnership. The responsibilities and rights that flow from Civil Partnership largely mirror those that flow from marriage. The whole process is civil, meaning that the registration cannot take place in religious premises. Nor can a religious celebrant register the partnership or take part in any ceremony at the time of registration. However, the couple may choose to have a religious blessing or a belief recognition of their partnership. Any such ceremony has no legal significance.
Advancing equality of opportunity	√		We propose to open marriage and religious registration of Civil Partnership to same sex couples. This will advance equality of opportunity for lesbian, gay and bi-sexual people, putting a same sex couple in the same position as an opposite sex couple. A same sex couple would be able to: a) get married by either a civil registrar or a religious or belief celebrant; b) register their civil partnership, again by either a civil registrar or a religious or belief celebrant.
Promoting good relations	√		Some lesbian, gay and bi-sexual people would wish to be able to have their marriage solemnised or their Civil Partnership registered by a religious or belief celebrant. Some religious and belief celebrants would wish to carry out these ceremonies. The consultation paper outlines proposed protections so that religious bodies and celebrants do not have to take part in the ceremonies.

Sexual orientation

Positive

Negative

None

Reasons for your decision

Eliminating unlawful discrimination

√

There is no legal obligation in Scotland or the UK to provide same sex marriage or religious or belief registration of Civil Partnership.

Under the current law, a same sex couple may register a Civil Partnership.

The responsibilities and rights that flow from Civil Partnership largely mirror those that flow from marriage.

The whole process is civil, meaning that the registration cannot take place in religious premises. Nor can a religious celebrant register the partnership or take part in any ceremony at the time of registration.

However, the couple may choose to have a religious blessing or a belief recognition of their partnership. Any such ceremony has no legal significance.

Advancing equality of opportunity

√

We propose to open marriage and religious registration of Civil Partnership to same sex couples. This will advance equality of opportunity for lesbian, gay and bi-sexual people, putting a same sex couple in the same position as an opposite sex couple.

A same sex couple would be able to:

a) get married by either a civil registrar or a religious or belief celebrant;

b) register their civil partnership, again by either a civil registrar or a religious or belief celebrant.

Promoting good relations

√

Some lesbian, gay and bi-sexual people would wish to be able to have their marriage solemnised or their Civil Partnership registered by a religious or belief celebrant.

Some religious and belief celebrants would wish to carry out these ceremonies.

The consultation paper outlines proposed protections so that religious bodies and celebrants do not have to take part in the ceremonies.

Do you think the policy impacts on people on the grounds of their race?

Race	None	Reasons for your decision
Eliminating unlawful discrimination	√	No person is currently treated less favourably in this area because of their race.
Advancing equality of opportunity	√	No evidence either way.
Promoting good race relations	√	No evidence either way.

Do you think the policy impacts on people because of their religion or belief?

Religion and Belief	Positive	None	Reasons for your decision
Eliminating unlawful discrimination		√	There is currently no unlawful discrimination, harassment and victimisation in relation to marriage and civil partnership.
Advancing equality of opportunity	√		Some religious and belief bodies have expressed their wish to be able to solemnise same sex marriages or register Civil Partnerships. Some people of faith or belief would wish to be able to have their marriage solemnised or their Civil Partnership registered by a religious or belief celebrant.
Promoting good relations	√		Some religious and belief celebrants wish to be able to solemnise same sex marriages or register Civil Partnerships and some people of faith or belief would wish to be able to have their marriage solemnised or their Civil Partnership registered by a religious or belief celebrant. A number of religious bodies, religious celebrants and lay people have raised concerns about same sex marriage. The consultation paper outlines the proposed protections so that religious bodies and celebrants do not have to take part in the ceremonies. The draft Bill also contains a provision making it clear that existing rights to freedom of speech are unaffected by the introduction of same sex marriage. The consultation outlines the Government's approach generally on freedom of speech, education and celebrants and seeks views. The Government has made it clear that it has no intention of making changes to denominational education.

Religion and Belief

Positive

Negative

None

Reasons for your decision

Eliminating unlawful discrimination

√

There is currently no unlawful discrimination, harassment and victimisation in relation to marriage and civil partnership.

Advancing equality of opportunity

√

Some religious and belief bodies have expressed their wish to be able to solemnise same sex marriages or register Civil Partnerships.

Some people of faith or belief would wish to be able to have their marriage solemnised or their Civil Partnership registered by a religious or belief celebrant.

Promoting good relations

√

Some religious and belief celebrants wish to be able to solemnise same sex marriages or register Civil Partnerships and some people of faith or belief would wish to be able to have their marriage solemnised or their Civil Partnership registered by a religious or belief celebrant.

A number of religious bodies, religious celebrants and lay people have raised concerns about same sex marriage.

The consultation paper outlines the proposed protections so that religious bodies and celebrants do not have to take part in the ceremonies.

The draft Bill also contains a provision making it clear that existing rights to freedom of speech are unaffected by the introduction of same sex marriage.

The consultation outlines the Government's approach generally on freedom of speech, education and celebrants and seeks views.

The Government has made it clear that it has no intention of making changes to denominational education.

Stage 4: Decision making and monitoring

Identifying and establishing any required mitigating action

Have positive or negative impacts been identified for any of the equality groups?	Yes Sexual Orientation Gender Reassignment Religion or Belief
Is the policy directly or indirectly discriminatory under the Equality Act 2010?	No
If the policy is indirectly discriminatory, how is it justified under the relevant legislation?	N/A
If not justified, what mitigating action will be undertaken?	N/A

Describing how Equality Impact analysis has shaped the policy making process

20. The policy aims to mitigate identified negative impacts.

21. The policy will therefore include a number of protections:

Religious and belief bodies who wish to solemnise same sex marriage or register Civil Partnerships will have to opt in to do so.
There is no obligation to opt in.
Religious and belief celebrants will only be able to solemnise same sex marriage or register Civil Partnership if their body has decided to opt in.
If a religious or belief body decides to opt in, there will be no obligation on individual celebrants to solemnise same sex marriage or register Civil Partnerships.
The Scottish Government has asked the UK Government to amend the Equality Act 2010 to provide further protection for such individual religious and belief celebrants.
The draft Bill has a provision making it clear that the introduction of same sex marriage does not affect existing rights under the European Convention of Human Rights and elsewhere to freedom of thought, conscience, religion and expression.
The Government has no plans to change denominational education.

Monitoring and Review

22. The Scottish Government will continue to regularly collect data from the National Records of Scotland in relation to marriage and Civil Partnership statistics. This will be broadened to include same sex marriage, religious Civil Partnerships and belief ceremony statistics.

23. The Scottish Government will continue to also meet with the National Records of Scotland and key external stakeholders, both during and after implementation of the legislation, to monitor its progress and, if necessary, to identify any areas requiring additional work.

Stage 5 - Authorisation of EQIA

Please confirm that:

This Equality Impact Assessment has informed the development of this policy:

Yes √ No

Opportunities to promote equality in respect of age, disability, gender, gender identity/transgender, sexual orientation, race and religion and belief have been considered, i.e:
- Eliminating unlawful discrimination, harassment, victimisation;
- Removing or minimising any barriers and/or disadvantages;
- Taking steps which assist with promoting equality and meeting people's different needs;
- Encouraging participation (e.g. in public life)
- Fostering good relations, tackling prejudice and promoting understanding.

Yes √ No

Declaration

I am satisfied with the equality impact assessment that has been undertaken for The Marriage and Civil Partnership (Scotland) Bill and give my authorisation for the results of this assessment to be published on the Scottish Government's website.

Name: TO BE COMPLETED AFTER THIS CONSULTATION.

Position:

Authorisation date: