Comment: LGBTI equality and the referendum result

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Tim Hopkins of the Scottish Equality Network writes for PinkNews and reflects on today’s independence referendum result, and how it may impact the lives of LGBTI Scottish people.

After a notably lengthy debate, characterised as “robust but overwhelmingly good-natured”, the people of Scotland have decided by 55% to 45% that Scotland should remain part of the UK.

Huge numbers of people across the country have taken active part in this debate, in what has been described as the greatest democratic experience in the history of Scotland. The turnout of 85% is a record – the highest turnout ever in a national vote in Scotland. The vote also made history by being the first to include people aged 16 and 17.

The Equality Network has been strictly neutral throughout the independence debate. That’s because we know that there is a very wide range of strongly-held views on independence amongst LGBTI people in Scotland. Many will be happy with this result; many will be gutted at their hopes being dashed.

It was always right that this should be decided by a vote of all the people of Scotland, and of course yesterday’s vote has very wide implications. It is the Equality Network’s job though to work, in whatever the circumstances, for greater equality for all LGBTI people in Scotland.

We hope that all LGBTI people, independence supporters or not, are together on that. Taking that rather narrowly focussed perspective on the result then, what now for LGBTI equality in Scotland?

Devolution now

Major areas of law and public services that affect LGBTI people have been devolved to the Scottish Parliament, since 1999. Those include most of marriage, civil partnership and gender recognition law, adoption, hate crime, and sexual offences law, as well as health, education, local government, and police and justice services. In those areas, the Scottish Parliament has made good progress on LGBTI equality, sometimes a little ahead of England and Wales, sometimes a little behind.

What devolution certainly enables is Scotland doing those things differently, and in our view a little better, and more appropriately for Scotland. For example, our equal marriage law took a little longer to finalise, but it does not have the spousal veto and is better in some other ways too. Devolution is about Scotland deciding, democratically, what works best for Scottish circumstances.

And where we do a bit better, that can help inspire the campaign for the same improvement in England and Wales, as we all hope to see on the spousal veto for example.

But not all areas of law are currently devolved to the Scottish Parliament; instead, some are “reserved” to Westminster. Scotland has no power to legislate to ban discrimination, or to amend the Equality Act 2010. We are stuck with the deficiencies of equality law passed at Westminster, including for example that it only protects some trans people from discrimination (those who fit the “gender reassignment” definition). Good practice around the world is to protect people from all gender identity discrimination, and we would like to see intersex status protected too.

Equality law in Scotland, set by the UK Parliament, can be contrasted with hate crime law, set by the Scottish Parliament, which represents global best practice by explicitly protecting all trans and intersex people.

More devolution

In the run up to the independence referendum, the unionist parties – the Tories, Labour and the LibDems – promised that if Scotland voted no to independence, there would be a major package of new devolved powers for the Scottish Parliament. There seems little doubt that that promise was one of the factors persuading people to vote no to independence.

There is a view in Scotland that the majority of people here, whether they support independence or not, would certainly prefer “devo-max” to the existing devolution arrangements. Devo-max means maximum devolution of powers in Scotland, to Scotland, with only such areas as foreign affairs and defence decided at UK level.

Although the three unionist parties promised earlier this week an agreed and rapid timetable for introducing further devolution in the event of a no vote, they have not yet agreed what will be devolved or how that will be decided.

Our view is that, having made those promises, the UK Government should deliver substantial further devolution for Scotland, through an open and inclusive process of consultation with Scottish people, groups and political parties. That is what people believe has been pledged. What is actually delivered remains to be seen of course.

How could greater devolution benefit LGBTI people? Unsurprisingly, devolution of equality law is top of our list. We campaigned for that, unsuccessfully, when the Scottish Parliament was developed in 1998, and, then as now, we were joined in that by Scottish equality groups working in other areas of equality.

There is no reason why equality law should not be devolved to Scotland within the UK – it is fully devolved in Northern Ireland for example (Northern Ireland’s poor political record of not using its devolved powers for LGBTI equality is a separate issue, that certainly does not apply in Scotland). We see the promise of further devolution as an opportunity to make the same kind of progress in Scotland on anti-discrimination law as we have made on hate crime law, equal marriage and other areas.

So pressing for that will be high on our agenda. It is not the only area though where the devolution arrangements are important for LGBTI equality. To mention just one other: the Scottish Parliament will need to decide on the future of civil partnership in Scotland, since that is already a devolved matter.

But if the Scottish Parliament votes to open civil partnership to mixed-sex couples – something that Scotland’s equal marriage campaign has always called for – then will the UK Government respect that decision, by recognising Scottish mixed-sex civil partnerships for purposes that are not devolved, such as pension regulation? Or will the UK impose the current England and Wales model of civil partnership on Scotland, in those reserved areas of law, regardless of Scotland’s democratic choice about who can register a civil partnership here?

These kind of questions, which are at core all about the evolution of the devolution arrangements right across the UK, will be an important part of our work, and that of many other groups, in the months ahead.

Tim Hopkins is the director of the Scottish Equality Network.

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