Scotland LGBT Laws

On 01 December 2010, consensual sex between same-sex persons aged sixteen (16) years is lawful [L1.3].

The Sexual Offences (Scotland) Act 2009 Part 4, Sections 18-41 set out circumstances where sexuality with a child is unlawful [L1.3].

On 19 January 2000, Nationalist MSPs joined forces with Scotland’s Lib-Lab coalition to let Westminster change the age of consent for gay people to sixteen (16) years [R1.2].

In January 1999, the Sexual Offences (Amendment) Bill passed its second reading in the House of Commons by 313 to 130 – a majority of 183. The Sexual Offences (Amendment) Bill will introduce a 16 age limit in England, Scotland and Wales, and 17 in Northern Ireland if it becomes law [R1.1].

On 22 July 2003, a decision by the Scottish Appeal Court reportedly had the effect of lowering the age of consent for males – but not females – in Scotland to 14 [C2.2], [R2.1].

The Scottish government says it will legislate to restore an equal age of consent of 16.

In November 2009, following legal action by one lesbian couple, the government set up an advisory group which was expected to recommend early next year that lesbians should be routinely allowed access to NHS fertility services [R1.2].

On 27 February 2009, NHS Greater Glasgow and Clyde (GGC) backed down after they were taken to court for refusing fertility treatment to lesbian couple Caroline Harris and Julie McMullan and decided to offer treatment to this couple [R1.1].

In March 2003, a deceased mother’s Will provided that “In the event of my death … I wish for my daughter to reside permanently with my sister. I wish all access rights currently exercised by her father to be respected” [R1.1].

After three court hearings the girl was given interim residency with her lesbian aunt [R1.1].

On 07 March 2002, Sheriff Laura Duncan in the Glasgow Sheriff Court reportedly awarded a 30-year-old gay man who fathered a child for a lesbian couple the same rights as a heterosexual father, ruling that a lesbian couple cannot constitute a family unit [C2.3], [R2.2]. C.f. Parenting [R2.1].

On 13 August 1999, Andrea Davies, 28, of Fraserburgh, Aberdeenshire was reported to have been granted legal aid by the Scottish Legal Aid Board to fight for the right to visit the child of her former partner [R2.1].

On 02 November 2015,extended Scottish legislation came into effect permitting couples who have a civil partnership registered abroad or elsewhere in the UK to change their relationship to a marriage by having a ceremony in the country. The Government has provided guidance for doing so [D1.7], [R1.6].

On 11 January 2015, it was reported that under the Marriage (Same Sex Couples) Act in England and Wales, and the Marriage and Civil Partnership (Scotland) Act in Scotland, unless in a civil partnership registered in Scotland, couples in civil partnerships entered into elsewhere must convert to a marriage in the country in which it was first registered. This means that those who entered a civil partnership in England or Wales must convert it in England or Wales and as Northern Ireland does not allow same-sex marriages, couples who entered a civil partnership there are prevented from converting to marriage in Northern Ireland [R1.5].

On 05 December 2005, sames-sex couples could register a civil partnership, conferring on them the same rights as married couples, including – recognition for inheritance and succession to property, employment and pension benefits, social security and tax provisions, exemption from testifying in court against your partner, recognitions for immigration and nationality purposes, protection from domestic violence, recognition as the nearest relative, a duty to provide maintenance for your partner and any children [R1.4].

In 2003, the Scottish Executive planned to introduce a civil partnerships Bill, giving gay couples many of the same rights as married partners [R1.3].

In May 2002, Robin Harper, the Green MSP, won the backing of almost 20 MSPs in calling for the Scottish Executive to set up a national register of civic partnership which will allow gays, lesbians and unmarried couples protection under the law [R1.2].

In June 1999, Scotland’s parliament granted travel allowances to the domestic partners of gay and straight members. Partners will be reimbursed for up to 12 journeys a year between their homes and Edinburgh [R1.1].

On 05 November 2012, Sheriff K J McGowan ruled in the Dunfermline Court that whilst ‘deeply regrettable’ Mark Bennett had not defamed George Cowan when Bennett referred to him as a “gay painter” at weekly meetings of a business network and allegedly defaced his business cards [C1.2], [R1.1]

On 01 October 2010, the Equality Act came into force. The Act covers age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex (meaning gender) and sexual orientation. Under the act people are not allowed to discriminate, harass or victimise another person because they belong to a group that the Act protects, they are thought to belong to one of those groups or are associated with someone who does [R1.4].

Previously:

The Equality Bill imposes an equality duty upon public bodies, and private bodies that deliver a public function, requiring consideration of the needs of everyone who uses their services or works for them. It is expected to come into force in Autum 2010.

The new legislation will generally apply in Scotland and Wales as well as in England. The Socio-economic Duty applies to England and Wales only. In a number of areas the Bill provides powers to Scottish and Welsh Ministers.

One of these is the power for Scottish Ministers to impose specific public sector equality duties on Scottish bodies and for Welsh Ministers to do likewise for Welsh bodies [R1.3].

On 15 November 1999, MSPs were expected to vote on new legislation which would give gay couples the same rights as hetero-sexuals, allowing gay couples to receive common-law status in the event of separation or death [R1.2].

On 10 December 1999, Justice Minister Jim Wallace said that a clause to alter the rights of homosexuals looking after physically or mentally handicapped partners to bring them into line with heterosexuals would be inserted into the Adults with Incapacity (Scotland) Bill currently going through Parliament. It will allow homosexuals to be legally treated as the “nearest relative” for the first time. Ministers were also studying proposals to extend to homosexual couples the same tenancy rights in council homes as heterosexuals [R1.1].

On 11 June 2014, Sheriff Bryson in the Glasgow Sheriff Court ruled that G1 Group had unlawfully discriminated against disabled couple Nathan and Robert Gale by refusing them entry to the Polo Lounge on the ground that there were no disabled facilities. The court awarded the couple £2,000 in compensation [C2.3], [R2.2].

On 04 April 2012, lesbian policewoman PC Tracey West won her sexual orientation discrimination case before employment judge Raymond Williamson against her sergeant Michael Service. Sgt Service was ordered to pay her £7,500. Her former employers, Dumfries and Galloway Constabulary, must pay her £2,500 [R2.1].

Cohabiting couples, whatever their sexual orientation, have the same property rights as married couples [R1.2].

In May 2000, the Parliament passed the Adults with Incapacity Bill giving same-sex couples the right to be consulted on the affairs of a partner who becomes incapacitated [R1.1].

On 13 October 2014, the Scottish Government announced that from 16 December 2014, married transgender people will no longer be forced to divorce before they are allowed to have their gender recognised in law [R1.4].

On 16 January 2014, the Scottish Parliament’s Equal Opportunities Committee unanimously approved an amendment to remove the spousal veto from the Marriage and Civil Partnership (Scotland) Bill, meaning that married, transgender Scots will no longer be required to obtain written consent from their spouse before they can get legal recognition of their gender identity [R1.3].

On 18 July 2012, the Scottish Government reportedly released a new protocol under which treatment will be faster and more flexible, with guaranteed minimum standards of care. It will also be easier for trans people to approach gender clinics directly, be prescribed hormones and take charge of the direction of their treatment [D1.2], [R1.1].

On 06 March 2013, Chris Wilson, a transgender Scottish man, admitted to obtaining sexual intimacy by fraud in failing to tell two teenage girls his gender history and real age. Judge Lord Bannatyne will sentence Wilson in the Edinburgh High Court after the court obtains reports [R2.16].

On 24 March 2010, The Offences (Aggravation by Prejudice) (Scotland) Act 2009 became law in Scotland [R1.7].

In June 2009, the Scottish Parliament passed The Offences (Aggravation by Prejudice) (Scotland) Act 2009 to protect gay, trans and disabled people from hate crime [R1.6].

Scottish justice secretary Kenny MacAskill said that extending hate crime laws to protect LGBT people and the disabled will send out a “clear message” that such crimes cannot be tolerated. The Bill put forward by Green MSP Patrick Harvie that would mean courts must take into account motivation when sentencing. Racial and religious motives are already covered by the law [R1.5].

The Act was expected to come into effect in March 2010 [R1.4].

In September 2008, the Sentencing of Offences Aggravated by Prejudice (Scotland) Bill proposed by Patrick Harvie, a Scottish Green MSP, last year was expected to become law in 2009. The new legislation would allow Scotland’s courts to impose tougher sentences for offences aggravated by the victim’s disability, gender identity or sexual orientation [R1.3].

In June 2008, legislators in Edinburgh in Scotland were accused of “playing politics” after weeks of delays to the Sentencing of Offences Aggravated by Prejudice (Scotland) Bill, a new hate crime bill that bring Scotland into line with England and Wales, where courts can impose tougher sentences for offences committed due to the victims disability or sexual orientation [R1.2].

As at 03 October 2008, Scotland did not have specific hate crime legislation for sexual orientation, although extended sentences for racial or religious prejudice was allowed [R1.1].

On 08 September 2011, the BBC reported that government ministers had agreed to allow men in England, Scotland, and Wales who have sex with men (MSM) to donate blood if they have not engaged in oral or anal sexual activity with or without a condom within the past 12 months, effective on 07 November [R1.3], [R1.2].

Previously

Both the Scottish Blood Transfusion Service and the National Blood Service (England and Wales) bar gay and bisexual men from donating blood for life [R1.1].

In January 2010 a gay man whose mother died from cancer called for a change in the law after he was reportedly prevented from donating blood to help her [R1.1].

On 16 March 2001, Judge Lord Mackay was reported to have found a Scottish man found guilty of reckless conduct for infecting a former girlfriend with HIV, sentencing Friday to five years in jail for the crime [R1.1].

On 06 June 2018, the Historical Sexual Offences (Pardons and Disregards) Bill was reportedly passed by the Parliament. The bill will give an automatic formal pardon to people, both living and dead, who were convicted of historical sexual offences where the conviction was for conduct which is now legal. Anyone with a historical conviction for same-sex sexual activity that is now legal would have to apply for a formal ”disregard” in order to prevent the information being included in disclosure checks [R1.7].

On 07 November 2017, the Government introduced the Historial Sexual Offences (Pardons and Disregards) (Scotland) Bill. If the Bill becomes law, it would automatically grant pardons to all individuals convicted of homosexual acts under UK laws [R1.6].

On 25 October 2016, justice secretary, Michael Matheson, told the Parliament that the government would bring forward a Scottish ”Turing law” to automatically pardon gay and bisexual men convicted of sexual offences that are no longer criminal [R1.5].

As at 30 January 2003, offences such as buggery, gross indecency and soliciting by men remain in place in Scotland unless the Scottish Executive decides to order a review [R1.4].

On 21 June 2000, Members of the Scottish Parliament voted 99 to 17 with two abstentions to abolish the Section 28 law barring the promotion of homosexuality, effective upon Royal Assent in July [R1.3].

On 28 October 1999, the Scottish parliament was expected to vote early new year on scrapping a controversial law banning schools from promoting homosexuality [R1.2].

In 1980, Scotland (and Northern Ireland) came into line with England and Wales in decriminalising homesexuality. Jersey decriminalised homosexuality in 1990 [R1.1].

In 1967 the government of Harold Wilson decriminalised homosexuality in England and Wales at age 21 years [R1.1].

In April 2009, a court in Scotland fined a mother £250 for shouting homophobic abuse at her 16 year old son [R2.1].

On 08 June 2017, the Episcopal Church Synod in Edinburgh was reported to have voted to allow gay couples to marry in church, meaning that gay Christians from any Anglican Church can now ask to be married in a Scottish Episcopal Church. Clergy who wish to officiate at gay marriages will have to ”opt-in” [R1.23].

On 10 June 2016, it was reported that the Scottish Episcopal Church’s General Synod voted (five of seven bishops, 69% of the clergy and 80% of the laity) that a change to its Canon law governing marriage should be sent for discussion to the church’s seven dioceses. A further vote will happen at next year’s synod [R1.22].

On 21 May 2016, the General Assembly of the Church of Scotland voted 339-215 to allow its ministers to be in same-sex marriage, extending a law passed last May that permits ministers to be in same-sex civil partnerships. The church maintains the traditional view marriage as between a man and woman, but allows individual congregations to ”opt out” if they wish to appoint a minister or deacon in a same-sex marriage or civil partnership [R1.21].

On 11 January 2015, it was reported that under the Marriage (Same Sex Couples) Act in England and Wales, and the Marriage and Civil Partnership (Scotland) Act in Scotland, unless in a civil partnership registered in Scotland, couples in civil partnerships entered into elsewhere must convert to a marriage in the country in which it was first registered. This means that those who entered a civil partnership in England or Wales must convert it in England or Wales and as Northern Ireland does not allow same-sex marriages, couples who entered a civil partnership there are prevented from converting to marriage in Northern Ireland [R1.20].

On 13 October 2014, the Scottish Government announced that gay and lesbian couples will be able to marry or convert their Civil Partnerships to marriage in Scotland on 31 December 2014, after giving the required 15 days notice when the The Marriage and Civil Partnership (Scotland) Act 2014 comes into force on 16 December 2014. Also, from 16 December 2014, married transgender people will no longer be forced to divorce before they are allowed to have their gender recognised in law [R1.19].

On 13 March 2014, the Marriage and Civil Partnership (Scotland) Act received Royal Assent. Amendments still need to be made to the UK Equality Act to enable the first marriages in Scotland by the end of this year [L1.18], [R1.17].

On 04 February 2014, the Scottish Parliament passed the Marriage and Civil Partnership (Scotland) Bill in a 105-18 vote. The Bill will take effect with Royal Assent [R1.16].

On 16 January 2014, the Scottish Parliament’s Equal Opportunities Committee unanimously approved an amendment to remove the spousal veto from the Marriage and Civil Partnership (Scotland) Bill, meaning that married, transgender Scots will no longer be required to obtain written consent from their spouse before they can get legal recognition of their gender identity [R1.15].

On 20 November 2013, Members of Scottish Parliament voted 98-15 in favor of the Marriage and Civil Partnership (Scotland) Bill. A final 1st stage vote and two further stages must be passed before the Bill goes to the Queen for signature. Under the Bill transgender people will be able to stay married, rather than having to get divorced, when obtaining a Gender Recognition Certificate, religious organizations will need to ‘opt in’ to perform same-sex marriages, and any individual celebrants will be able to refuse to carry out weddings for gay couples [R1.14].

On 08 November 2013, the Equal Opportinties Committee released the Stage 1 report on the Marriage and Civil Partnership (Scotland) Bill backing the introduction of the legislation. The Scottish Parliament Stage One vote on the principle of the bill is expected in the week starting 18 November with a Stage 3 vote likely in January or February [D1.13], [R1.12].

On 13 September 2013, trans groom Felix Fenton married trans bride Helen Fenton at Gretna Green, Scotland, in what is thought to be the first double swap transgender wedding in the UK [R1.11].

On 27 June 2013, the Marriage and Civil Partnership (Scotland) Bill to allow same-sex couples to marry was published by the Scottish Government [L1.10], [R1.9].

On 12 December 2012, the Scottish Government released the consultation draft Marriage and Civil Partnership (Scotland) Bill [L1.8], [R1.7].

On 25 July 2012, the Scottish Government announced that in late 2012 it would introduce a draft bill permitting same-sex marriage, which if passed would allow marriage early in 2015 [R1.6].

On 16 July 2012, the Scottish government ruled out a referendum on the proposed introduction of same-sex marriage. A decision on whether to bring forward a bill on same-sex marriage would be made before the end of July [R1.5].

On 08 April 2012, the Scottish Government rejected marriage equality pleas from gay couples, claiming that current laws do not need to be reformed [R1.4A].

On 17 March 2011, a report from the Equality and Human Rights Commission (EHRC) [R1.4] to the Scottish Government says that current law preventing same-sex marriage discriminates against gay people and is not supported by public polls [R1.3].

In April 2010, the Scottish Government rejected marriage equality pleas from gay couples, claiming that current laws do not need to be reformed. The comments follows the passing of the controversial Equality Bill through Westminster, which will allow couples in England and Wales to have their civil partnership in religious venues [R1.2].

In March 2009, the Public Petitions committee asked the Scottish Parliament to review the Marriage Act with regard to gay marriage [R1.1].

In Scotland, on account of differences in marriage law, the grant of an interim gender recognition certificate will provide a ground for divorce, rather than make the marriage voidable [R1.0].

See also: GENDER IDENTITY.

Under Scottish law cohabiting same-sex couples do not have the right to claim damages for grief, distress, or sorrow and loss of financial support if their partner dies because of someone else’s negligence [L1.1], [R1.1].

The Damages (Scotland) Act 1976, covers two kinds of loss – patrimonial and non-patrimonial. Patrimonial loss covers loss of financial support, while non-patrimonial involves intangible losses such as grief and distress.

The Scottish Law Commission has recommended that the law be amended.

On 28 September 2000, The Hon Lord Johnston in the employment appeals tribunal, Edinburgh found in favour of Roderick Macdonald, an RAF officer who was forced to leave the forces following the disclosure of his homosexuality, rejecting the decision of the earlier tribunal, allowing Macdonald to receive compensation [R1.1]

Lord Johnston applied the Sex Discrimination Act to sexual orientation – the first time ever in a British court. Because the tribunal is a unified court, the decision stands as an immediate precedent throughout Britain.

As from 28 September 2009, gay couples are permitted to adopt children together under the Adoption & Children (Scotland) Act 2007 [R1.4].

In April 2009, Children’s Minister, Adam Ingram, announced that the Scottish Government would introduce regulations to make it easier for gay couples to jointly adopt children [R1.3].

In February 2009, a Scottish heroin addict’s two children were to be adopted by a gay couple after social services ruled that their grandparents were unsuitable to look after them [R1.2].

In April 2004 and again in June 2005, Scotland was thought likely to overhaul its adoption laws, with same-sex couples being given the right to adopt together for the first time [R1.1].

Although lesbian and gay people are allowed to adopt children under Scottish law, they cannot do it as a couple or register their child with both parents.

It is thought the update is to bring Scotland in line with the rest of the mainland UK, where adoption by same-sex couples was made legal in 2003.

On 17 March 2014, the Office of the Scottish Charity Regulator announced it would not be appealing the Scottish Charity Appeals Panel ruling in favour of the St Margaret’s Children and Family Care Society, allowing it to refuse adoptions by same-sex couples [R2.8].

On 31 January 2014, the Scottish Charity Appeals Panel overturned the Office of the Scottish Charity Regulator finding that St Margaret’s Children and Family Care Society was in breach of the Equality Act 2010 by discriminating against same-sex couples [C2.7], [R2.6].

On 05 March 2013, the Office of the Scottish Charity Regulator upheld the ruling that the St Margaret’s Children and Family Care Society policy of excluding gay couples from their adoption system was unlawful discrimination. Subject to a right of appeal to the Scottish Charities Appeal Panel, non-compliance by 22 April could see the Society removed from the Scottish Charites Register [C2.5], [R2.4].

On 22 January 2013, the Office of the Scottish Charity Regulator finds the St Margaret’s Children and Family Care Society is operating in breach of the Equality Act 2010: the criteria it applies to people who enquire about assessment as prospective adoptive parents discriminate unlawfully against same sex couples [C2.3], [R2.2].

On 19 March 2002, Sheriff Noel McPartlin at Edinburgh Sheriff Court ruled that lesbian couple Pam and Natalie have the same parental rights as heterosexuals and are considered a family unit by the courts [R2.1]. C.f. Children [C2.3], [R2.2]

On 06 September 2011, law lecturer Brian Dempsey reportedly said that the definition of domestic abuse as an offence perpetrated by men against women does “serious damage” to gay and transgendered people suffering violence in the home [R2.1].

The official definition states: “Domestic abuse (as gender-based abuse), can be perpetrated by partners or ex partners and can include physical abuse (assault and physical attack involving a range of behaviour), sexual abuse (acts which degrade and humiliate women [emphasis added] and are perpetrated against their will, including rape) and mental and emotional abuse …” [R1.1].