OVER THE PAST two decades, Scotland has experienced a sea-change in both legal equality and public attitudes towards LGBT people. Indeed, while politics has become sharply divided along constitutional lines, LGBT rights is a policy area on which each of the Scottish parties has come to largely agree.
Historically, Scotland was the country which dragged its feet on decriminalising sex between adult men for 13 years after England and Wales first lifted the ban in 1967. This was a decision thought to be driven by the views of religious bodies and the general public and supported somewhat by opinion polling taken in 1957 which indicated that 85 per cent of Scots opposed decriminalisation, compared with just 51 per cent in an English poll (MacNicol, 2017). It was, in large part, due to the hard-fought efforts of campaigners, including the Scottish Minorities Group, that the law in Scotland was equalised in 1980 after the European Court of Human Rights ruled in their favour.
Fast forward to the present day, and the leader of the Scottish Conservative Party is Ruth Davidson, an ‘out’ lesbian, who has recently given birth to her and her partner’s first child. Nine other currently serving MSPs have spoken publicly about being lesbian, gay or bisexual, along with ten Scottish MPs. And after rafts of legislative reform in the Scottish Parliament, Scotland was ranked the best place in Europe for LGBTI equality for two years running in 2015–16, before falling to second place in 2017 and 2018 (ILGA-Europe, 2015–2018).
Like all progress, this transformation seemed to happen slowly, then all at once. LGBT activism developed as a strong force in Scotland throughout the 1980s and 90s with the formation of numerous campaigning and cultural organisations. When the Scottish Parliament opened its doors, the Equality Network had been set up to push for LGBT equality in Scotland two years earlier and the Stonewall Youth Project – which would become LGBT Youth Scotland in 2003 – had been in operation for almost a decade, while Stonewall Scotland, the younger sibling of Stonewall UK, was established in 2000, just in time to work with Scotland’s newly elected members.
What Holyrood and the devolution settlement brought with it was a more direct line between these advocates and their representatives, and the scene was set for a strong partnership to be formed between civil society and the political class.
The Labour-Liberal Democrat coalition, elected in 1999, did not waste any time in demonstrating the devolved parliament’s willingness and capacity to pass socially progressive legislation. Within its first year, the coalition announced its plans to scrap the now notorious ‘Section 28’, or 2a in Scotland, introduced by the Thatcher Government in the Local Government Act, 1986 to ban local authorities and schools from ‘promoting’ homosexuality.
Despite millions spent on advertising and public opinion polling by the Keep the Clause campaign, led by Stagecoach owner and major SNP donor Brian Souter, alongside a sustained campaign of negative media coverage, MSPs voted 99 to 17 to repeal the clause. Westminster would follow suit three years later.
Over the next seven years of the coalition’s rule, successive legal reforms introduced by the UK Labour Government advanced the rights of LGBT people in Scotland. 2001 brought the equalisation of the age of consent; discrimination based on sexual orientation was prohibited in employment in 2003 and in the provision of goods and services in 2007; and 2004 saw the Scottish Executive grant consent for the introduction of Civil Partnerships for same sex couples, while the Gender Recognition Act, which allowed transgender people to change the gender on their birth certificates in line with an Equality and Human Rights Court ruling.
Meanwhile, the Scottish Executive took steps to cement its status as a champion of equality, from including LGBT people in its first Equality Strategy and providing funding in 2002 to engage LGBT people in policy-making, to equalising the rights of same-sex and mixed-sex cohabiting couples in 2006 and legalising joint adoption by same-sex couples the following year.
The election of the first SNP minority Government in 2007 brought with it uncertainty: would the nationalist party, traditionally regarded as relying on support amongst some of Scotland’s more socially conservative and religious voters, be bold enough to keep up the momentum on LGBT equality?
Despite the perception of an, at times, overly cautious approach, driven by a preoccupation with maintaining the goodwill of ideologically disparate communities (or in other words: pleasing all of the people all of the time), a continuing positive relationship with LGBT rights advocates has been borne out by the party’s first 11 years in office.
In its first year of power, the SNP Government provided funding for the establishment of the Scottish Transgender Alliance – the first trans rights project to be funded by a national government in Europe – and it continues to do so in 2019. In 2009, a private member’s bill introduced by Scottish Green MSP Patrick Harvie was passed unanimously to expand hate crime law to include offences aggravated by disability, sexual orientation and transgender identity. This made Scotland the first place in Europe to specifically protect against offences motivated by transphobia, one year before the UK-wide Equality Act, which put in place protections against discrimination based on ‘gender reassignment’ for the first time.
The SNP’s first term also saw the introduction of new sexual offences legislation, which finally removed ‘gross indecency’ and ‘sodomy’ as criminal offences, both of which had historically been used to prosecute gay men.
Arguably the most contentious moment for the Scottish Parliament since the repeal of Section 2a came with the consultation on the legalisation of same-sex marriage, which began in 2011, three years after the launch of the Equal Marriage campaign.
Headed up by the Equality Network along with an alliance of other organisations, the campaign’s eventual success was a testament to activists’ commitment in the face of a drawn out political process and virulent opposition from a co-ordinated campaign by Scotland for Marriage and CARE for Scotland (Christian Action Research and Education) – both abundant with familiar faces from the 2000 Keep the Clause efforts, including the Catholic Church, the Free Church of Scotland and the England-based Christian Institute.
The question was initially raised in Scotland in the form of a petition put forward in 2009, but the Scottish Government argued it would be too logistically complex to achieve without legalisation in England and Wales. Thus, it was when Westminster launched its own consultation in 2011 – an important nod to the modern Conservative Party’s new openness to socially progressive policy – that the wheels were set in motion in Scotland.
LGBT campaigners were kept on their toes for some time by the two-stage consultation, cabinet committee deliberations, and discussion with the UK Government in order to secure what were deemed as sufficient legal protections for religious opponents of same-sex marriage. But on 4 February 2014, equal marriage passed in the Scottish Parliament with 105 to 18 votes, and, while England and Wales ultimately saw their first same-sex marriages six months earlier, the law in Scotland has been commended for being more trans-inclusive, because it does not require people to gain the consent of their spouse before legally changing gender. Four years later, the Church of Scotland, which strongly opposed the legislation, has voted to draw up internal laws to allow ministers to choose to conduct same-sex marriages.
With the pardoning of men who were convicted of historical ‘homosexual offences’ along with a public apology from First Minister Nicola Sturgeon in 2018, the fight for formal equality for lesbian, gay and bisexual people is in many ways a battle won. This legal progress is, on one hand, indicative of changing public opinion, and, on the other, a driving force in shaping social attitudes in itself.
By the time the equal marriage consultation began, a 2011 Scottish Social Attitudes Survey had shown that 61 per cent supported same-sex marriage; and by the time the first marriages were performed in 2014, this had climbed to 68 per cent. In 2000, when Clause 2a was scrapped, only 37 per cent of people agreed that same-sex relationships were ‘rarely wrong’ or ‘not wrong at all’. By 2010, this had risen to 58 per cent, and by 2015 it stood at 69 per cent.
That being said, research suggests that discrimination and inequality is yet to be relegated to history. A 2018 report by LGBT Youth Scotland found that 92 per cent of LGBT young people had been bullied in education, and that one in five of those had left education as a result. That homophobic and transphobic bullying has not been sufficiently tackled is perhaps unsurprising, given that research by Stonewall Scotland in 2014 found that almost half of secondary teachers and 75 per cent of primary teachers were unsure of whether mentioning LGBT issues in schools was allowed. This demonstrates that legislation can only take equality so far: awareness raising, and education is integral to changing ‘hearts and minds’.
Since activists Jordan Daly and Liam Stevenson launched the Time for Inclusive Education (TIE) campaign in the aftermath of the 2014 independence referendum, the question of how to make schools a more welcoming place for LGBTI young people – which had been high on the agenda of organisations like LGBT Youth Scotland for years – has gained new momentum.
The TIE campaign called for LGBT issues to be covered in initial teacher training, continuous professional development, and for the creation of new legislation to require schools to be proactive in tackling prejudice by including LGBTI identities in the curriculum (from history, to English, to sex and relationships education) and to record incidents of homophobic, biphobic and transphobic bullying.
Harnessing public and political support, including a majority of MSPs and Scottish MPs, the campaign catalysed the Scottish Government’s decision to set up an LGBTI Inclusive Education working group in 2017. By the end of 2018, the recommendations of the working group, which consisted of education and equalities experts including Daly and Stevenson, were published, backing each of the aims put forward by the campaign – bar the introduction of new legislation per se.
Instead, it called on the Scottish Government to insert new outcomes into existing statutory guidance requiring LGBTI-related themes to be covered in the curriculum, to be monitored through school inspections, and for Education Scotland and the Scottish Qualifications Authority (SQA) to update their materials to reflect this.
The Scottish Government, in a landmark step, accepted the recommendations in full, to be implemented by 2021. Importantly, the working group included the Scottish Catholic Education Service, which signed off on the report, with no opt-out for any public school – another sign of just how far things have come since ‘the Clause’.
Despite the leaps and bounds in other areas, trans rights continue to lag behind, as do public attitudes on the issue. The consultation on reforming the Gender Recognition Act to make legal gender change simpler, which began in Scotland in late 2017, closely followed by a similar consultation in England and Wales, has become the source of significant controversy.
The proposed reforms would remove the need for a psychiatric diagnosis before changing the ‘sex’ marker on a birth certificate, lower the age limit from 18 to 16, or 12 with parental consent, and introduce a third, non-binary option. Questions have been raised in the media over the impact on children’s and women’s safety and equality of allowing a self-declaration process, with considerable voice given to campaign groups set up to oppose the changes, such as For Women Scotland and Women and Girls Scotland and, south of the border, Fair Play for Women and Woman’s Place UK.
However, as the reforms were backed by all five of the elected parties in Scotland in their 2016 manifestos in some form, and the country’s leading feminist organisations have spoken out in support of the changes and emphasised their existing policy of trans inclusion based on self-declaration. With over 15,000 individuals and 100 organisations responding to the Scottish consultation, twothirds of respondents backed all three of the main reforms.
This picture is the result of years of close partnership working between the LGBT and women’s sectors, supported by the existence of a national trans specific project, and the fact that Scottish organisations have defined as ‘LGBT’ since the late 1990s; for example, while Stonewall UK only expanded to include trans people in 2015, Stonewall Scotland was an LGBT organisation since 2000.
Unfortunately this has not been enough to insulate Scotland from an increasingly hostile debate, with 15 members of the SNP, including three government ministers, four additional MSPs and four MPs signing a letter in April 2019 calling on the First Minister not to ‘rush’ the legislation, arguing that the reforms would amount to ‘changing the definition of male and female’.
Meanwhile, others in the SNP have taken pains to reiterate their support of trans rights, with a large group of members and elected representatives being photographed with trans pride flags at the party’s spring conference of 2019. Earlier in the year, SNP Councillor and TIE campaign chair Rhiannon Spear coordinated an open letter criticising negative and misleading media coverage around trans rights, signed by over 500 women in Scotland.
Polarisation around the topic led to the release of a statement by the Scottish Government Cabinet Secretary for Social Security and Older People, Shirley-Ann Somerville, in which she emphasised her own support for the rights of trans people and the Government’s intention to address discrimination faced by trans people as well as working through the concerns which have been raised. This, and statements of support from the First Minister, are likely to give some reassurance to LGBT rights campaigners, but more than a year on from the consultation’s closing date, a definitive response from the Scottish Government is awaited with nervous anticipation.
Although the addition of the ‘I’ onto LGBTI has come into common usage, in many cases this is treated as a silent letter. Scottish campaigners, spearheaded by Equality Network, are seeking to change this by partnering with intersex people and organisations across the UK in order to learn more about their experiences.
While intersex people, who are born with variations of sex characteristics (including genitals, gonads and chromosome patterns), differ on whether they identify with the LGBTI community, it is considered that they share overlapping experiences. Established LGBT organisations in Scotland may be well-placed to replicate their successes to date with respect to intersex equality: indeed, in light of an increased push for such rights to be embedded into policy, the Scottish Government is due to launch a consultation on how to address the issues experienced by intersex people.
If Scotland were to introduce legislation which specifically protects against discrimination of intersex people, or against surgery or treatment of sex characteristics without informed consent, this would make it among one of the first in the world to meet UN recommendations by doing so (United Nations, 2016). This, along with gender recognition reforms, could well put Scotland back in the top spot for LGBTI rights.
In Scotland, LGBT equality has in many ways been ‘mainstreamed’, with even those on the right of the political spectrum speaking in its favour. None of this progress has happened in a vacuum, by accident or due to the simple goodwill of politicians: it has been the result of years of coordinated efforts on the part of activists who have been politically astute and, above all, resolute.
In many ways, Scotland’s status as a small country has worked in campaigners’ favour, allowing relationships to be formed and shared understandings developed. Now, as Scotland’s LGBT organisations turn their attention to international injustices, it may well be that the world, too, can learn something valuable from the successes of a small nation.
ILGA Report (2015–18) ‘Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe’, available online at: https://www.ilga-europe.org/sites/default/files/Attachments/annual_review_final2018_web.pdf, accessed 29 October 2018.
MacNicol, D. (2017), ‘Illegal to be gay – Scotland’s history’, BBC Scotland, 27 July 2017, available online at: https://www.bbc.co.uk/news/uk-scotland-40731733, accessed 29 October 2018.
Lough Dennell, B.L., Anderson, G. and McDonnell, D. (2018) ‘Life in Scotland for LGBT Young People’, LGBT Youth Scotland, available online at: www.lgbtyouth.org.uk/media/1354/life-in-scotland-for-lgbt-young-people.pdf, accessed 29 October 2018.
ScotCen Social Research (2014), ‘Support for same-sex marriage in Scotland reaches all-time high’, available online at: http://scotcen.org.uk/news-media/press-releases/2014/december/support-for-same-sex-marriage-in-scotland-reaches-all-time-high/, accessed 29 October 2018.
Scottish Government (2017) ‘Sexual orientation in Scotland 2017: summary of evidence base, Scottish Government, 2017’, available online at: www.gov.scot/publications/sexual-orientation-scotland-2017-summary-evidence-base/pages/7/, accessed 29 October 2018.
Stonewall Scotland (2014), ‘The Teachers’ Report’, available online at: https://www.stonewall.org.uk/system/files/scot_teachers_report_2014_final_lo_res.pdf, accessed 29 October 2018.
United Nations Human Rights (2016), ‘Fact Sheet: Intersex’, available online at: https://docs.google.com/viewerng/viewer?url=http://interactadvocates.org/wp-content/uploads/2016/02/United-Nations_FactSheet_Intersex.pdf, accessed 29 October 2018.