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

A protest in 2016. Getty
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Fewer teachers, more pupils and no more money. Schools are struggling

With grammars and universal school meals, both main parties have decided to answer policy questions no one is asking.

If you ask people in Britain what the ­biggest political issues are, schools don’t make the top five. Yet last week Labour set its first party political broadcast in a fictional classroom where a teacher described Jeremy Corbyn’s plans for schools’ future. Without a Labour government, the teacher opines, there will be no more libraries, or teachers, or school trips. Though the scenario is a flagrant breach of the law – teachers must remain politically impartial – education isn’t a bad place for Labour to start its campaign. Schools really are quite screwed.

Three things are hitting hard. Schools have less money, fewer people want to be teachers, and an avalanche of under-sevens is hitting the playgrounds and won’t stop for several more years.

How did we get here? In 2015 the Conservatives pledged to keep school funding at the same rate per pupil over the lifetime of the parliament. Yet while the money coming in has remained flat, schools have faced huge hikes in costs, particularly staffing. Big increases in mandatory pension contributions and National Insurance have taken their toll; so has the apprenticeship levy. The
Institute for Fiscal Studies estimates that all told, schools will have lost about 8 per cent of their budget by 2020. That’s £3bn of savings that must be found. Or, more bluntly, the starting salaries of 100,000 teachers.

It is worth remembering at this point how huge the schools sector is and how many people are affected. About half a million teachers work in the 20,000-plus state schools. A further 300,000 people work in allied professions. There are eight million children and an estimated 12 million parents. Lump in their grandparents, and it’s fair to say that about 20 million voters are affected by schools in one way or another.

The budget squeeze is leading many of these schools to drastic measures: firing teachers, increasing class sizes, cutting music from the curriculum, charging parents for their child’s place on a sports team, dropping transport provision, and so on. Begging letters to parents for donations have become commonplace; some have asked for contributions of up to £60 a month.

On top of money worries, teachers are abandoning the profession. In 2015, an additional 18,000 went to work in international schools – more than were trained at universities over the same year. They joined the 80,000 teachers already working in British schools abroad, attracted by higher pay and better working conditions.

Graduates are also snubbing teaching. With starting salaries increasing at less than 1 per cent a year since 2010, new teachers are now paid about 20 per cent less than the average graduate trainee. Changes to higher education are also such that trainees must now pay £9,000 in order to gain their teaching qualification through a university. The government has missed its target for teacher trainees for five years now, and there is no coherent plan for hitting it.

No money and no teachers is less of a problem if you are in a demographic dip. We had a bizarrely low birth rate at the turn of the century, so we currently have a historically small proportion of teens. Unfortunately, the generation just behind them, of seven-year-olds and under, is enormous. Why? Because the “baby echoers”, born in the 1970s to the baby boomers, had children a bit later than their parents. Add to that the children recently born to immigrants who arrived in their twenties when the European Union expanded in the early 2000s, and Britain is facing an El Niño of toddlers. By 2025 a million extra children will be in the school system than in 2010.

To keep on top of the boom the government has been creating schools like a Tasmanian devil playing Minecraft. But 175,000 more places will be needed in the next three years. That’s the equivalent of one new secondary school per week from now until 2020.

In fairness, the government and councils have put aside money for additional buildings, and roughly the same number of parents are getting their first-choice school as before. The free schools policy, which delivers new schools, has not always been well managed, but it is now more efficient and targeted. However, many more children combined with squeezed budgets and fewer teachers typically leads to bigger class sizes. Most classrooms were built to house 30 pupils. Exam results may not get worse, but no parent wants their child working on a makeshift desk improvised out of a windowsill.

Instead of addressing these challenges, both main parties have decided to answer policy questions no one is asking. Theresa May wants more grammar schools, ostensibly because they will give more choice to parents – though these are the only schools that pick pupils, as opposed to the other way around. And she says they will aid social mobility, though all the evidence (and I really do mean all) suggests the opposite.

Jeremy Corbyn, meanwhile, is offering free lunches to all seven-to-11-year-olds, which sounds worthy until you realise that children from low-income families already get free lunch, and that feeding every child a hot sit-down meal is virtually impossible, given the limited space and kitchen facilities in most schools. Plus, the evidence this £1bn policy would make any significant difference
to health or attainment is pretty sketchy. Labour has also sensibly talked about cash and promised to “fully fund” schools, but it isn’t clear what that means.

What’s missing so far from the Conservatives and Labour alike is a set of policies about teacher recruitment or place planning. The sector needs to know how schools will be built, and where the teachers will come from for the extra kids. In other words, the message to both sides is – must try harder.

Laura McInerney is the editor of Schools Week and a former teacher

Laura McInerney taught in East London for six years and is now studying on a Fulbright scholarship at the University of Missouri. She also works as Policy Partner at LKMCo.

This article first appeared in the 27 April 2017 issue of the New Statesman, Cool Britannia 20 Years On

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