Beverley Addison: The changing status of LGBTQ+ relationships



Beverley Addison

To mark the end of Pride Month, Beverley Addison, a senior solicitor in BTO’s family law team, takes us on a journey in the coming days through the history of family law in Scotland for LGBTQ+ people.

It is hard to believe that homosexuality was only fully decriminalised in Scotland 20 years ago, having mostly had to be dragged there kicking and screaming by the European Court of Human Rights.

Male same-sex sexual acts were criminalised by the Criminal Law Amendment Act 1885. It carried a two-year prison sentence for anyone engaging in a male same-sex relationship. In 1921, Parliament tried to add to it the criminalisation of female same-sex relationships, but the House of Lords rejected the amendment on the basis that there is “no knowledge of the existence of female same-sex relationships”. So, essentially, lesbian women avoided the same criminal treatment as gay men, thanks only to the all-male parliament’s blissful ignorance…

The first baby steps towards rectifying this situation were taken in 1957 when the Departmental Committee on Homosexual Offences and Prostitution published their report – the Wolfenden Report – which advised the British government that homosexuality should be made legal. Despite many attempts by various MPs over the years, the first legislative move towards this in Scotland came in the form of the Criminal Justice (Scotland) Act 1980, which did de-criminalise homosexual sexual acts, but only for those over 21 years of age. This applied in direct conflict with sexual acts between heterosexuals for which the age of consent was 16.

Unfortunately, this change did not herald the acceptance of those in homosexual family relationships. In 1988, the infamous Section 28, known as “section 2A” in Scotland, of the Local Government Act was introduced, which stated that no local authority could promote or publish any material relating to homosexuality, and specifically that no school within a local authority could “promote the acceptability of homosexuality as a pretended family relationship”.

In practice, this meant that a number of support groups for LGBTQ+ people could no longer function, and LGBTQ+ issues could not be taught or talked about in schools. This horrendous piece of work was not abolished in Scotland until the year 2000 (2003 in England & Wales). To their credit, this was one of the first acts of the devolved Scottish Parliament, removing that provision as part of the Ethical Standards in Public Life etc. (Scotland) Act 2000 shortly after it was established. In 2009, David Cameron made a formal apology in the House of Commons on behalf of the Conservative Party for having introduced section 28 under Margaret Thatcher’s third government.

In 1994, the gay age of consent was lowered to 18 and a lesbian age of consent was not set. In 1996, a breakthrough was finally made when the European Court of Human Rights heard the cases of Morris v the United Kingdom and Sutherland v the United Kingdom, both cases challenging the inequality between the ages of consent. The government stated that it intended to legislate in order to negate the cases, and so they were put on hold, but they never did. In 1997, the ECHR found that the discriminatory age of consent laws were contrary to the European Convention on Human Rights. Despite three attempts to push the bill changing this through Parliament, on each occasion it was voted down by the House of Lords, and so special provision was required to make it possible to enact the bill without the Lords voting it through.

This meant that full decriminalisation finally came into force on 8 January 2001, lowering the age of consent to 16 in line with heterosexual relationships. This followed at least 44 years of work from important activist groups since the publication of the Wolfenden Report, which first recommended the change.

In June 2018, the Scottish Parliament passed the Historical Sexual Offences (Pardons and Disregards) Act 2018, which issued a formal pardon to men, both living and dead, who were convicted of having consensual sex with other men before it was decriminalised.

Beverley Addison is a senior solicitor at BTO LLP