In the third and final installment of our spotlight on LGBT+ history and the Labour Party, our LGBT+ Officer and Co-Chair Elect, Beth Nott, focuses on the 21st Century, and what the future holds.
The next piece of legislation promoting the rights of LGBT people as equal to the rest of society was the equalisation of the age of consent. The recommendation of the Wolfenden report was an age of consent at 21, while the age of consent for straight people (and, to a lesser extent, lesbians) was 16, so the Sexual Offences Act 1967 set it at 21 for male homosexuals. A later amendment under Major’s government reduced it to 18 in 1994 under the Criminal Justice and Public Order Act 1994, but it took until the Sexual Offences (Amendment) Act 2000 under Blair for it to be equalised to 16 (the Act was later repealed in 2004). This was mainly due to the pressure from the European Court of Human Rights, which, in the case of Sutherland v. United Kingdom, found that a non-equal age of consent violated the European Convention on Human Rights (Sutherland v. United Kingdom, 1997-2001).
Blair’s government also successfully secured equal access to adoption, with the passage of the Adoption and Children Act 2002, which removed the requirement for couples adopting to be married, allowing same-sex couples to adopt on equal terms. In 2018, around 12% of adoptions in England were by same-sex couples (Besanvalle, 2018).
Marriage equality was next on the checklist, and it would not have been possible without the Labour government majority in the 2000s. The Civil Partnership Act 2004 was the first legal recognition of same-sex relationships in the UK, giving most (but crucially not all) of the same rights as opposite-sex marriages. The first couple to have a civil partnership held their ceremony on the 5th of December 2005, with the usual 2-week waiting period waived due to the terminal lung cancer of one of the men, who tragically died the next day. More encouragingly, the first couple to get “married” after the customary wait period were Grainne Close and Shannon Sickles, who are, by all accounts, still together to this day and have a child together (Archer, 2017).
It should be noted that these strides would likely not have happened as they did without the influence of the European Union. As aforementioned, the focus on human rights was not introduced into the LGBT movement until the 80s, and it was actually the rulings of the ECHR and EU law that the language of “sexual orientation” was introduced. The rights to family life introduced in the ECHR and enshrined under the Human Rights Act 1998 gave us the language to talk about the rights to marry, the creation of families and privacy – “much of the rights discussion regarding LGBT+ people in the UK occurred through the European courts” (Stocks, 2015, p. 7). For example, it was the ECtHR ruling in Goodwin & I. v. United Kingdom that the inability for transgender people to alter their birth certificates and marry in their chosen gender that really enabled the development of the Gender Recognition Act (2004).
The Gender Recognition Act of 2004 (GRA) is not without its problems. Although it allowed trans people to marry in their chosen gender, this was only provided it made the marriage heterosexual, and it has been noted that the GRA enforces an extremely binary view of gender (ibid.). The GRA also required a medical diagnosis in order for trans people to be legally recognised. Reform to the GRA has been called for by charities like Stonewall, who participated in a public consultation in 2018 calling for a reformed GRA that “Requires no medical diagnosis
or presentation of evidence for trans people to get their identity legally recognised; Recognises non-binary identities; Gives all trans people, including 16 – 17-year-olds, the right to self-determination, through a much simpler and more streamlined administrative process” (Stonewall, 2019). A draft bill to this effect has been presented to the Scottish Parliament, but no such legislation has been introduced in Westminster, with six consecutive Tory Women and Equalities Ministers dragging their feet on this reform (Parsons, 2020). Reform to the GRA to include self-determination was in Labour’s 2019 manifesto.
The fight for equal marriage took another 9 years. The Civil Partnership Act left same-sex marriage a devolved matter, with England and Wales getting there first with the Marriage (Same Sex Couples) Act 2013 (and the first marriages taking place in March 2014), and Scotland not far behind, with the Scottish Parliament passing the Marriage and Civil Partnership (Scotland) Act in 2014 (and the first marriages taking place in December 2014). However, LGBT people in Northern Ireland have been fighting since then to get similar measures passed – Grainne and Shannon, mentioned above, being Northern Irish, fought their case to the Northern Irish Court of Appeal, which was dismissed. A majority in favour of the introduction of same sex marriage in Northern Ireland had existed in the Assembly all the way back in November 2015, but the Democratic Unionist Party (DUP) had blocked it for over 4 years using a “petition of concern” (Belfast Telegraph, 2020). With the Stormont Assembly suspended for over three years between 2017 and 2020, activists looked to Westminster to find justice. In July 2019, Labour MP Conor McGinn made an amendment to the Northern Ireland (Executive Formation etc) Act 2019 to legislate same-sex marriage in Northern Ireland, unless the Stormont Assembly reformed by 21st October (this bill also legalised abortion in Northern Ireland, another long run and hard won fight). It did not, and marriage equality was passed, with the first marriages taking place in February 2020 (Coulter, 2020). Unfortunately, this Act does not allow civil partnerships to be automatically converted into marriages; a consultation for this is set to begin later this year – which means that, despite their effort for the movement, Grainne and Shannon still will not be married.
LGBT rights have exploded, even just in the lifetime of our generation. However, we must not be complacent: the fight is not over. While we enjoy many of the same legal freedoms of our straight and cisgender siblings in the UK, we should not forget that it is still a crime to be gay in 70 countries, and punishable by a life sentence in 7 and by a death sentence in 9 countries (Amnesty International, 2020). Even at home, it is still not possible for gay men to give blood if they’ve had oral or anal sex in the last three months – even if they use condoms, or are on PrEP. In Northern Ireland, this wait is 12 months. As aforementioned, we need reform to the GRA in order for it to recognise the rights of non-binary individuals and cease to require a medical diagnosis. Some activists have also been pushing for a removal of gender markers on identification, as it is not a useful diagnostic tool for emergency medical assistance. For example, a trans man on testosterone with an F on his ID does not have the same medical needs as a cis woman, and a trans woman on estrogen with an F on her ID also has different medical needs to a cis woman. Furthermore, gender markers that do not line up with presentation are catalysts for abuse – a third of survey respondents in the US have faced harassment or violence after showing an ID that did not match their gender presentation (Walker, 2019). Under current hate speech legislation (the Criminal Justice and Immigration Act 2008), hate speech against people on the basis of sexual orientation is criminalised, but there is no equivalent ban on hate speech against people on the basis of their gender identity (although this is partially covered by the Equality Act 2010). We also need to be very careful about what happens after Brexit, as the protections offered by the ECtHR are no longer guaranteed, and there was talk of scrapping the Human Rights Act post-Brexit. The Labour Party cannot be complacent on LGBT issues, however, as this allows us to assume we are beyond discrimination. The cases of MPs like Jess Phillips who self identify as “gender critical” and do not respect the rights of trans women as equal to the rights of all women, despite calling herself a feminist (Oxford PPE Society, 2020), should not be overlooked and we should not be complacent. Phillips isn’t an isolated case, either, which shows that Labour needs to do more to protect the rights of our trans siblings.
The fight is not over, but in the 21st century we can be assured that the Labour Party is solidly on the side of the LGBT community, and will continue to support each other in solidarity against any future oppression.
Archer, B., 2017. FIght for same-sex marriage to go to Northern Ireland Court of Appeal – ….. [Online] Available at: https://www.irishnews.com/news/2017/12/19/news/fight-for-same-sex-marriage-to-go-to-northern-ireland-court-of-appeal-1213870/ [Accessed 27 05 2020].
Belfast Telegraph, 2020. Bans on same sex marriage was ‘unjustified discrimination’, Northern Ireland court rules. [Online] Available at: https://www.belfasttelegraph.co.uk/news/northern-ireland/ban-on-same-sex-marriage-was-unjustified-discrimination-northern-ireland-court-rules-39110100.html [Accessed 27 05 2020].
Besanvalle, J., 2018. Record-breaking one in eight adoptions in England are by same-sex couples. [Online] Available at: https://www.gaystarnews.com/article/adoptions-england-same-sex-couples/ [Accessed 28 05 2020].
Coulter, P., 2020. Same-sex marriage now legal in Northern Ireland. [Online] Available at: https://www.bbc.co.uk/news/uk-northern-ireland-51086276 [Accessed 27 05 2020].
Parsons, V., 2020. Government refuses to deny plans to reform the Gender Recognition Act have been scrapped. [Online] Available at: https://www.pinknews.co.uk/2020/02/24/gender-recognition-act-gra-reform-government-equalities-office-transgender-theresa-may/ [Accessed 28 05 2020].
Stocks, T., 2015. To What Extent Have the Rights of Transgender People Been Underrealized in Comparison to the Rights of Lesbian, Gay, Bisexual, and Queer/Questioning People in the United Kingdom?. International Journal of Transgenderism, 16(1), pp. 1-35.
Stonewall, 2019. Gender Recognition Act (GRA). [Online] Available at: https://www.stonewall.org.uk/gender-recognition-act [Accessed 28 05 2020].
Sutherland v. United Kingdom, 1997-2001. CASE OF SUTHERLAND v. UNITED KINGDOM 25186/94. Strasbourg: s.n.
Amnesty International, 2020. LGBT rights | Amnesty International. [Online] Available at: https://www.amnesty.org/en/what-we-do/discrimination/lgbt-rights/ [Accessed 28 05 2020].
Oxford PPE Society, 2020. Women in society and the Labour Party with Jess Phillips. [Online] Available at: https://soundcloud.com/ppesoc/women-in-society-the-labour-party-with-jess-phillips/s-MxbVgOmDyiq [Accessed 28 05 2020].
Walker, H., 2019. It’s Time to Take Gender Markers Off of Government IDs. [Online] Available at: https://www.vice.com/en_us/article/wjw3aw/take-gender-markers-off-of-government-ids [Accessed 28 05 2020].