LGBT rights in Scotland

Laws regarding same-sex sexual activity

The historical legal situation for male homosexuality was severe: "The common law crime of sodomy does not involve the establishment of the absence of consent on the part of the passive agent or catamite. It reflects a former general disapproval of homosexuality and both parties are guilty of the offence". Recorded punishments are limited compared to purges such as Utrecht sodomy trials, whether due to lack of offending, prosecution or surviving documentation. Baron Hume wrote that "the crime is only mentioned twice in the course of our records", citing a double prosecution in 1570 and a single prosecution in 1630, with bestiality more often noted, all cases being punished by death. A legal text dated 1832 added then recent case in which a man, on confession to two acts of sodomy out of nine initially charged, was transported for life. However, another archive source documents an additional sample mention, the commission for trial of Gavin Bell in 1645.

In 1889, Scotland became the last jurisdiction in Europe to abolish the death penalty for same-sex sexual intercourse, which reduced the penalty to life imprisonment in a penitentiary.

The United Kingdom Parliament voted to pass the Sexual Offences Act 1967 for the limited decriminalisation of homosexual acts in only England and Wales. Homosexual activities were legalised in Scotland — on the same basis as that which was used for the 1967 Act — by Section 80 of the Criminal Justice (Scotland) Act 1980. Section 2A, the legislation that prevented the promotion of homosexuality, was repealed in Scotland within the first two years of the existence of the Scottish Parliament by the "Ethical Standards in Public Life etc. (Scotland) Act 2000".

Same-sex marriage

Same-sex marriage is legal in Scotland and the first same-sex marriages occurred on 31 December 2014. The law provides that religious organizations and individual celebrants are under no obligation to perform marriage ceremonies for same-sex couples, though religious organizations are permitted to authorize their clergy to do so.

On 25 July 2012, the Scottish Government announced that it would legalise same-sex marriage. The move was announced despite the opposition by the Church of Scotland and the Catholic Church in Scotland. Although Deputy First Minister Nicola Sturgeon announced the move as the "right thing to do", she reassured churches that they would not be forced to perform same-sex marriages. During the consultation phase, ministers received over 19,000 messages from constituents about the issue.

On 27 June 2013, the Scottish Government introduced the Marriage and Civil Partnerships Bill (Scotland) in the Scottish Parliament.

On 4 February 2014, Scottish Parliament held its final, State 3 vote on a bill to permit same-sex marriages. The bill passed by a vote 108-15 and received royal assent on 12 March 2014. The UK Parliament had already agreed to make necessary amendments to the UK Equality Act 2010 if the Scottish Parliament enacted same-sex marriage legislation, so as to allow certain religious and faith organisations to be exempted from having to conduct, or be involved in same-sex marriage if it contravenes their beliefs, as is also provided in the Scottish bill. The first same-sex weddings occurred on 31 December 2014, though civil partnerships could be exchanged for marriage certificates from 16 December 2014 so the very first same sex marriages under Scottish law were recognised from that day.

Civil partnerships

Civil partnerships have been a right of same-sex couples in Scotland to access since 2005, when the UK Parliament passed the Civil Partnership Act 2004. The Act gives same-sex couples most (but not all) of the rights and responsibilities of civil marriage. Civil partners are entitled to the same property rights as married opposite-sex couples, the same exemption as married couples on inheritance tax, social security and pension benefits, and also the ability to get parental responsibility for a partner's children, as well as responsibility for reasonable maintenance of one's partner and their children, tenancy rights, full life insurance recognition, next of kin rights in hospitals, and others. There is a formal process for dissolving partnerships akin to divorce.

The legalisation of same-sex marriage in Scotland has had several notable impacts on legislation relating to Scottish civil partnerships. Though the Scottish Government has yet to decide whether or not to open civil partnerships to mixed sex couples, the Government has elected to introduce:

Since November 2015, civil partnerships originating elsewhere in the United Kingdom other than Scotland (including Northern Ireland) can be converted to a marriage without the couple being forced to dissolve the civil partnership.

Adoption and parenting rights

Effective on 28 September 2009, approved legislation allowed same-sex couples to adopt children in Scotland. At the same time, the Looked After Children (Scotland) Regulations 2009 came into effect, which allows same-sex couples to be considered as foster parents on the same basis as anyone else.

The legal position regarding co-parenting arrangements where a gay man/couple donates sperm to a lesbian couple is complex. Following the changes implemented by the Human Fertilisation and Embryology Act 2008, lesbian couples who conceive with donated sperm are likely to be treated as both being the parents of their child. If the lesbian couple a man is donating to are civil partners/married, the father’s status will be automatically excluded. If the lesbian couple he is donating to are not civil partners/married, the mothers may be able to choose whether they wish the child’s second parent to be the father or the non-birth mother.

Altruistic surrogacy is legal in the United Kingdom, including Scotland. The law supports gay fathers conceiving through surrogacy in the UK in the same way as it does heterosexual couples and allows for applications to the relevant court, for such parents who wish to be named on their child's birth certificate as the legal parents/guardians of the child.

Discrimination protections

The passage of the Equality Act 2010 by the Parliament of the United Kingdom directly impacted on Scotland. Since implementation, the Act has covered gender reassignment, marriage and civil partnership, sex, and sexual orientation among a host of other attributes. The Act outlaws discrimination, harassment and victimisation of another person because they belong to a group that the Act protects, are thought to belong to one of those groups or are associated with someone who does.