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40 YEARS OF DEVELOPING
LGBT LEGAL RIGHTS:
REGROUPING PRIDE,
RESURGENT PREJUDICE
Professor Emeritus Kenneth McKenzie Norrie
Strathclyde Law School (1990 – 2023)
Beginnings: 1981
• Criminal Justice (Scotland) Act 1980, s.80
comes into force:
• Men (over 21) are permitted by statute
to be “grossly indecent” with one
another.
• And you could still get them: Masterson
v Holden [1986] 1 WLR 1017: two men
kissing in a bus shelter in Oxford Street
guilty of breach of the peace if any
passer-by offended.
• (Age reduced to 18 in 1994 and to 16 in
2000).
Maturing in Battle: 1988
• “Section 28” (of the Local Government Act 1988, adding
s.2A to the Local Government Act 1986):
• [Local authorities] shall not “promote homosexuality”
or “promote the teaching … of the acceptability of
homosexuality as a pretended family relationship”.
• This galvanised LGBT activists, and kick-started my legal
writing on LGBT matters:
• “Symbolic and Meaningless Legislation” (1988) 33
Journal of the Law Society of Scotland 310
• “How to Promote Homosexuality: A Guide for Schools
and Colleges” (1989) 152 Scolag 74
• (Repealed in Scotland by Ethical Standards in Public Life
(Scotland) Act 2000; in England and Wales by Local
Government Act 2003).
The 1990s: A Time of Change
• "Transsexuals, the Right to Marry and Voidable Marriages in
Scots Law" 1990 Scots Law Times (News) 353
• "Reproductive Technology, Transsexualism and
Homosexuality: New Problems for International Private Law"
(1994) 43 International and Comparative Law Quarterly 757
• See also:
• Would Scots Law Recognise a Dutch Same-sex
Marriage?” (2003) 7 Edinburgh Law Review 147
• “Recognition of Foreign Relationships Under the Civil
Partnership Act 2004” (2006) 2 Journal of Private
International Law 137
• Recognition of Overseas Same-Sex Relationships Under
New Zealand’s Civil Union Act 2006” (2009) 23 New
Zealand Universities Law Review 339
• "Parental Pride: Adoption and the Gay Man" 1996 SLT
(News) 321
2000 to 2004:
Constitutionalisation of
the Law
• “We Are Family (Sometimes): Legal Recognition of Same-Sex
Relationships After Fitzpatrick” (2000) 4 Edinburgh Law Review
256
• “Stay Standing if You Like Gay People” (2000) SCOLAG 34-37
• “Constitutional Challenges to Sexual Orientation Discrimination”
(2000) 49 International and Comparative Law Quarterly 755
• And later “Marriage and Civil Partnership for Same-Sex
Couples: The International Imperative” (2005) 1 Journal of
International Law and International Relations 249
2000 to 2004: A Swinging
Pendulum
• “Marriage is for Heterosexuals: May the
Rest of Us be Saved from It” (2000) 12 Child
and Family Law Quarterly 363
• “Contact, Welfare and the Right to (Gay)
Family Life” 2003 SLT (News) 23
• And later: “Parenthood and Artificial
Human Reproduction”, in Inspiring a
Medico-Legal Revolution: Essays in
Honour of Sheila McLean (Routledge
2015, eds Ferguson and Laurie)
• “Bellinger v. Bellinger, the House of Lords
and the Gender Recognition Bill” (2004) 8
Edinburgh Law Review 93
2004 – 2014: From Civil
Partnership to Marriage
• “Accommodating Religion to the Gay Equality
Imperative”, in The Place of Religion in Family
Law: A Comparative Search, eds J. Mair and E.
Orucu (Intersentia 2011)
• “Religion and Same-Sex Unions: The Scottish
Government’s Consultation on Registration of Civil
Partnerships and Same-Sex Marriage” (2012) 16
Edinburgh Law Review 95-99
• “Conscientious Objection to Creating Same-Sex
unions: an International Analysis” with B.
Macdougall, E van der Brink and E Bonthuys
(2012) 1 Canadian Journal of Human Rights 127
2014 onwards
• “Now the Dust has Settled: The Marriage
and Civil Partnership (Scotland) Act
2014” 2014 Juridical Review 135
• “Civil Partnership in Scotland 2004-2014
– and beyond”, in From Civil Partnership
to Same-sex Marriage: Interdisciplinary
Reflections, eds Barker and Monk
(Routledge, 2015)
• “Changing Perceptions of Homosexuality
as Revealed by the Law of Defamation in
Scotland”, in Justice After Stonewall:
LGBT Life Between Challenge and
Change, eds Behrens and Becker
(Routledge, 2023)
• Campbell v Dugdale 2020 CSIH 27
• Foster v Jessen [2021] NIQB 56
Pushback
• Eweida v United Kingdom [2013] 57 EHRR 8.
• Page v Lord Chancellor and Lord Chief Justice [2021] EWCA Civ
254.
• R (Johns) v Derby City Council [2011] EWHC 375 (Admin).
• R (Cornerstone (North East) Adoption and Fostering Services) v
OFSTED [2021] EWCA Civ 1390.
• Bull v Hall [2013] UKSC 73.
• R (Core Issues Trust) v Transport for London [2014] EWCA Civ
34
• “Case Comment: Lee v Ashers Baking Company” Ltd 2019
Juridical Review 88
• “What Level of Respect does Opposition to Same-Sex
Marriage Deserve in a Democratic Society?” (2023) 74
Northern Ireland Legal Quarterly 417
Pushback (Overseas)
• Uganda: Anti-Homosexuality Act 2023
increased penalties for homosexual acts.
• Italy: June 2023 Government led by
Giorgia Meloni prohibited local authorities
from registering female partners of
mothers as parents.
• Bermuda: 2022 right to same-sex marriage
removed five years after its introduction.
• USA: 303 Creative v Elenis 600 US 570
(2023)
Governmental
Pushback in the UK
• Gender Recognition Reform
(Scotland) Bill 2023 prevented from
being submitted for Royal Assent by
UK Cabinet Minister: held lawful
exercise of power by Lady Haldane
in Scottish Ministers, Petrs [2023]
CSOH 89.
• Gender Recognition (Approved
Countries and Territories) Order
2011/1630 to be revised downwards.
• Ban on “gay conversion” to exclude
gender-questioning children (in
E&W).
Governmental Pushback: Attack
on All Things European
• ECHR itself under constant attack from right wing of
Conservative Party.
• LGBT rights traced to ECHR (and EU):
• Employment protections (Lustig Prean v UK [2001] 31
EHRR 23)
• Goods and Services (Eweida v UK [2013] 57 EHRR 8;
R (Cornerstone NE Adoption Services) [2021] EWCA
Civ 1390)
• Transgender rights (Goodwin v UK [2002] 35 EHRR
18)
• Pension Rights (Walker v Innospec) [2017] UKSC 47
(EU and ECHR)
• Joint adoption; access to infertility treatment
• Equality Act 2010 (consolidating numerous EU rules)
• R (Steinfeld and Keidan) [2018] UKSC 32 (opposite-
sex civil partnership)
The Wider Battle
• Transgender wars affect us all:
• After transgender people,
they will come for gay
parents (as in Meloni’s Italy).
• Then for gay relationships.
• Then gay and lesbian people.
• Then women.
• Then ethnic minorities.
• Then everyone else.
THESE SLIDES AND ALL THE CITATIONS CAN BE ACCESSED VIA
THE LAW SCHOOL’S “BLOG”:
https://www.strath.ac.uk/humanities/
lawschool/blog/

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Kenneth Norrie Valedictory Lecture Slides 28/2/24

  • 1. 40 YEARS OF DEVELOPING LGBT LEGAL RIGHTS: REGROUPING PRIDE, RESURGENT PREJUDICE Professor Emeritus Kenneth McKenzie Norrie Strathclyde Law School (1990 – 2023)
  • 2. Beginnings: 1981 • Criminal Justice (Scotland) Act 1980, s.80 comes into force: • Men (over 21) are permitted by statute to be “grossly indecent” with one another. • And you could still get them: Masterson v Holden [1986] 1 WLR 1017: two men kissing in a bus shelter in Oxford Street guilty of breach of the peace if any passer-by offended. • (Age reduced to 18 in 1994 and to 16 in 2000).
  • 3. Maturing in Battle: 1988 • “Section 28” (of the Local Government Act 1988, adding s.2A to the Local Government Act 1986): • [Local authorities] shall not “promote homosexuality” or “promote the teaching … of the acceptability of homosexuality as a pretended family relationship”. • This galvanised LGBT activists, and kick-started my legal writing on LGBT matters: • “Symbolic and Meaningless Legislation” (1988) 33 Journal of the Law Society of Scotland 310 • “How to Promote Homosexuality: A Guide for Schools and Colleges” (1989) 152 Scolag 74 • (Repealed in Scotland by Ethical Standards in Public Life (Scotland) Act 2000; in England and Wales by Local Government Act 2003).
  • 4. The 1990s: A Time of Change • "Transsexuals, the Right to Marry and Voidable Marriages in Scots Law" 1990 Scots Law Times (News) 353 • "Reproductive Technology, Transsexualism and Homosexuality: New Problems for International Private Law" (1994) 43 International and Comparative Law Quarterly 757 • See also: • Would Scots Law Recognise a Dutch Same-sex Marriage?” (2003) 7 Edinburgh Law Review 147 • “Recognition of Foreign Relationships Under the Civil Partnership Act 2004” (2006) 2 Journal of Private International Law 137 • Recognition of Overseas Same-Sex Relationships Under New Zealand’s Civil Union Act 2006” (2009) 23 New Zealand Universities Law Review 339 • "Parental Pride: Adoption and the Gay Man" 1996 SLT (News) 321
  • 5. 2000 to 2004: Constitutionalisation of the Law • “We Are Family (Sometimes): Legal Recognition of Same-Sex Relationships After Fitzpatrick” (2000) 4 Edinburgh Law Review 256 • “Stay Standing if You Like Gay People” (2000) SCOLAG 34-37 • “Constitutional Challenges to Sexual Orientation Discrimination” (2000) 49 International and Comparative Law Quarterly 755 • And later “Marriage and Civil Partnership for Same-Sex Couples: The International Imperative” (2005) 1 Journal of International Law and International Relations 249
  • 6. 2000 to 2004: A Swinging Pendulum • “Marriage is for Heterosexuals: May the Rest of Us be Saved from It” (2000) 12 Child and Family Law Quarterly 363 • “Contact, Welfare and the Right to (Gay) Family Life” 2003 SLT (News) 23 • And later: “Parenthood and Artificial Human Reproduction”, in Inspiring a Medico-Legal Revolution: Essays in Honour of Sheila McLean (Routledge 2015, eds Ferguson and Laurie) • “Bellinger v. Bellinger, the House of Lords and the Gender Recognition Bill” (2004) 8 Edinburgh Law Review 93
  • 7. 2004 – 2014: From Civil Partnership to Marriage • “Accommodating Religion to the Gay Equality Imperative”, in The Place of Religion in Family Law: A Comparative Search, eds J. Mair and E. Orucu (Intersentia 2011) • “Religion and Same-Sex Unions: The Scottish Government’s Consultation on Registration of Civil Partnerships and Same-Sex Marriage” (2012) 16 Edinburgh Law Review 95-99 • “Conscientious Objection to Creating Same-Sex unions: an International Analysis” with B. Macdougall, E van der Brink and E Bonthuys (2012) 1 Canadian Journal of Human Rights 127
  • 8. 2014 onwards • “Now the Dust has Settled: The Marriage and Civil Partnership (Scotland) Act 2014” 2014 Juridical Review 135 • “Civil Partnership in Scotland 2004-2014 – and beyond”, in From Civil Partnership to Same-sex Marriage: Interdisciplinary Reflections, eds Barker and Monk (Routledge, 2015) • “Changing Perceptions of Homosexuality as Revealed by the Law of Defamation in Scotland”, in Justice After Stonewall: LGBT Life Between Challenge and Change, eds Behrens and Becker (Routledge, 2023) • Campbell v Dugdale 2020 CSIH 27 • Foster v Jessen [2021] NIQB 56
  • 9. Pushback • Eweida v United Kingdom [2013] 57 EHRR 8. • Page v Lord Chancellor and Lord Chief Justice [2021] EWCA Civ 254. • R (Johns) v Derby City Council [2011] EWHC 375 (Admin). • R (Cornerstone (North East) Adoption and Fostering Services) v OFSTED [2021] EWCA Civ 1390. • Bull v Hall [2013] UKSC 73. • R (Core Issues Trust) v Transport for London [2014] EWCA Civ 34 • “Case Comment: Lee v Ashers Baking Company” Ltd 2019 Juridical Review 88 • “What Level of Respect does Opposition to Same-Sex Marriage Deserve in a Democratic Society?” (2023) 74 Northern Ireland Legal Quarterly 417
  • 10. Pushback (Overseas) • Uganda: Anti-Homosexuality Act 2023 increased penalties for homosexual acts. • Italy: June 2023 Government led by Giorgia Meloni prohibited local authorities from registering female partners of mothers as parents. • Bermuda: 2022 right to same-sex marriage removed five years after its introduction. • USA: 303 Creative v Elenis 600 US 570 (2023)
  • 11. Governmental Pushback in the UK • Gender Recognition Reform (Scotland) Bill 2023 prevented from being submitted for Royal Assent by UK Cabinet Minister: held lawful exercise of power by Lady Haldane in Scottish Ministers, Petrs [2023] CSOH 89. • Gender Recognition (Approved Countries and Territories) Order 2011/1630 to be revised downwards. • Ban on “gay conversion” to exclude gender-questioning children (in E&W).
  • 12. Governmental Pushback: Attack on All Things European • ECHR itself under constant attack from right wing of Conservative Party. • LGBT rights traced to ECHR (and EU): • Employment protections (Lustig Prean v UK [2001] 31 EHRR 23) • Goods and Services (Eweida v UK [2013] 57 EHRR 8; R (Cornerstone NE Adoption Services) [2021] EWCA Civ 1390) • Transgender rights (Goodwin v UK [2002] 35 EHRR 18) • Pension Rights (Walker v Innospec) [2017] UKSC 47 (EU and ECHR) • Joint adoption; access to infertility treatment • Equality Act 2010 (consolidating numerous EU rules) • R (Steinfeld and Keidan) [2018] UKSC 32 (opposite- sex civil partnership)
  • 13. The Wider Battle • Transgender wars affect us all: • After transgender people, they will come for gay parents (as in Meloni’s Italy). • Then for gay relationships. • Then gay and lesbian people. • Then women. • Then ethnic minorities. • Then everyone else.
  • 14. THESE SLIDES AND ALL THE CITATIONS CAN BE ACCESSED VIA THE LAW SCHOOL’S “BLOG”: https://www.strath.ac.uk/humanities/ lawschool/blog/