Why our new same-sex marriage is not yet equal marriage

The six discriminatory aspects of the same-sex marriage legislation that was passed this week mean that this is not yet true equality.

The Marriage (Same Sex Couples) Act passed through both houses of parliament this week and received royal assent. It is now the law of England and Wales. The first same-sex marriages are expected to take place in the summer of 2014.

It has been a long, hard struggle, spanning 21 years. Way back in 1992, the LGBT rights group OutRage! made the first challenge to the ban on same-sex marriage. We didn’t succeed but it was the opening shot in the battle for marriage equality.  

The enactment of same-sex marriage removes the last major legal discrimination against lesbian, gay, bisexual and transgender (LGBT) people. It is a reason for great celebration. But amid the jubilation, we should remember that, despite all our efforts, we failed to persuade the government and parliament to legislate equal marriage.

Same-sex marriages are legalised under a new law, the Marriage (Same Sex Couples) Act. It is separate and different from the Marriage Act 1949 - the legislation governing opposite-sex marriages. Separate and different are not equal.

Aside from the fact that this law does not apply in Scotland and Northern Ireland, there are in total six discriminatory aspects of the new legislation.

Pension inheritance rights are fewer on death of a same-sex marriage spouse. The surviving partner is not entitled to receive the full value of the deceased partner’s pension. Employers are required by law to pay same-sex survivor’s pensions based on only contributions made since 2005. Although many employers are likely to pay out from 1988 onwards, this is discretionary and may not be the full value of the lifetime pension contributions by a same-sex spouse. This means that pension contributions made in the years before 2005/1988 are in many instances discounted and will not be received by the surviving same-sex marriage partner. 

Although David Cameron argued that same-sex marriage is an issue of equality, the ban on opposite-sex civil partnerships remains. Straight couples continue to be prohibited from having a civil partnership, even though the government’s own public consultation on equal marriage found that 61 per cent of respondents supported the right of heterosexual couples to have a civil partnership if they want one. Only 24 per cent disagreed. In the Netherlands, two-thirds of civil partnerships are between male-female couples. A similar take up is likely in the UK if civil partnerships were available to heterosexuals.

The existing grounds for the annulment of a marriage - non-consummation and adultery - do not apply in the case of same-sex marriages. To many people, these are antiquated aspects of marriage law that should be repealed. Nevertheless, this differential in the law governing same-sex and opposite-sex married couples is not equality.

There is no restoration of the marriages of transgender people that were forcibly annulled as a precondition for them securing a gender recognition certificate. Moreover, the spouse of a transgender person must consent to the marriage continuing after the issue of a certificate.

Under the so-called "quadruple lock" legislation, the Church of England and the Church in Wales are explicitly banned from performing religious same-sex marriages. While other faiths can "opt in" to marry LGBT people, these two denominations are prohibited. This is not only homophobic discrimination; it is also an attack on religious freedom.

The special requirements for registering premises for the conduct of religious same-sex marriages are more restrictive than for opposite-sex marriages in religious premises. In the case of premises shared for faith services by several small denominations - which is often the case with evangelical, African and pro-LGBT churches - all the sharing faith organisations have to give their permission for the premises to be used for same-sex marriages. In effect, anti-gay churches will have a veto over pro-gay churches.

Despite these flaws, the new same-sex marriage law is a milestone. It is of huge symbolic importance; signalling that LGBT love and commitment have social recognition and public acceptance.

However, because of these flaws, the campaign for equal civil marriages and equal civil partnerships continues. My own organisation, the Peter Tatchell Foundation, working with the Equal Love campaign, will seek to rectify the shortcomings in a subsequent bill; probably when the government next year holds its promised review on the issue of civil partnerships for opposite-sex couples.  We are ever hopeful.

As a back up, our case in the European Court of Human Rights - Ferguson & Others v the UK (pdf) - remains on course.

It already challenges the ongoing ban on opposite-sex civil partnerships and we will now make a new submission to the court to strike down pension inequality in marriage law.

Just as the embarrassing prospect of losing this ECHR case helped pressure the government to end the ban on same-sex marriage, I’m optimistic that it will also help persuade David Cameron and Nick Clegg to remedy these remaining shortfalls in civil marriage and civil partnership law. 

The first challenge to the ban on same-sex marriage at Westminster Registry Office on 19 March 1992. Photograph: Stephen Mayes

Peter Tatchell is Director of the Peter Tatchell Foundation, which campaigns for human rights the UK and worldwide: www.PeterTatchellFoundation.org His personal biography can be viewed here: www.petertatchell.net/biography.htm

Photo: Getty
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Can Philip Hammond save the Conservatives from public anger at their DUP deal?

The Chancellor has the wriggle room to get close to the DUP's spending increase – but emotion matters more than facts in politics.

The magic money tree exists, and it is growing in Northern Ireland. That’s the attack line that Labour will throw at Theresa May in the wake of her £1bn deal with the DUP to keep her party in office.

It’s worth noting that while £1bn is a big deal in terms of Northern Ireland’s budget – just a touch under £10bn in 2016/17 – as far as the total expenditure of the British government goes, it’s peanuts.

The British government spent £778bn last year – we’re talking about spending an amount of money in Northern Ireland over the course of two years that the NHS loses in pen theft over the course of one in England. To match the increase in relative terms, you’d be looking at a £35bn increase in spending.

But, of course, political arguments are about gut instinct rather than actual numbers. The perception that the streets of Antrim are being paved by gold while the public realm in England, Scotland and Wales falls into disrepair is a real danger to the Conservatives.

But the good news for them is that last year Philip Hammond tweaked his targets to give himself greater headroom in case of a Brexit shock. Now the Tories have experienced a shock of a different kind – a Corbyn shock. That shock was partly due to the Labour leader’s good campaign and May’s bad campaign, but it was also powered by anger at cuts to schools and anger among NHS workers at Jeremy Hunt’s stewardship of the NHS. Conservative MPs have already made it clear to May that the party must not go to the country again while defending cuts to school spending.

Hammond can get to slightly under that £35bn and still stick to his targets. That will mean that the DUP still get to rave about their higher-than-average increase, while avoiding another election in which cuts to schools are front-and-centre. But whether that deprives Labour of their “cuts for you, but not for them” attack line is another question entirely. 

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to domestic and global politics.

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