Trans* Jersey and Liberate met with Chief Minister Ian Gorst on 21 November 2014 to discuss the findings of the consultation into the question of whether it is appropriate to introduce legislation to equalise marriage in Jersey.

Consultation results

The online survey conducted by the Chief Minister’s office had 1,094 respondents and 161 people wrote letters on the subject. This represents an amazing level of response and bears witness to strongly held opinions on both sides of the debate.

However, this only represents 1.5% of the population and, inevitably, only those members of the population who feel strongly about the subject. It was no surprise, therefore, to learn that 54% of respondents were for and 46% were against equal marriage. The closeness of the result is probably not representative of the population as a whole but speaks to the fact that about 10% of the population are LGBTQ and about 10% of the population are regular churchgoers, both parties being well mobilised and well versed in the arguments for and against.

Of the three options offered for making equal marriage a reality, the responses were as follows –

• Civil marriage only – 34% for
• Civil and religious marriage (with an opt-out for those whose faith does not allow for same-sex unions) – 55% for
• Union Civile – 75% against

On the question of allowing humanist marriages to take place, 50% agreed that they should, but the lack of comments on this issue was interpreted to mean either a lack of understanding of the issue or a lack of real interest in seeing it happen.

On the question of opening up civil partnerships to opposite-sex couples, 75% were in favour. However, the comments from respondents indicated that this option was less about equality and more about greater legal protection for co-habiting couples.

On the question of parity of law for same-sex and opposite-sex couples where adultery is concerned, 65% were for equalising the law.

Of the options offered for equalising the law on adultery, the responses were as follows –

• Removing adultery from law – 11%
• Creating a new definition of adultery – 40%

This result spoke to concerns that fidelity is important within any marriage and that to remove adultery from law is to make fidelity appear less important.

In addition, a number of points came out of the consultation –

• Marriage matters to everyone (whether you are for or against same-sex marriage).
• Equality and non-discrimination is an important issue that respondents respected and did not want to stand accused of breaching.
• From those people of faith, the message was that marriage can only be between a man and a woman.
• There were also a number of people who felt that civil partnerships should be enough for same-sex couples.
• Both sides agreed that civil partnerships are not the same as marriages.
• For some “redefining” marriage to include same-sex marriages is not an option.
• There were concerns surrounding the use of language if same-sex marriage were to happen, such as the neutralising genders on official documents. People from both sides were unhappy with words such as spouse1/spouse2 and would prefer husband/wife, wife/wife, husband/husband.
• Both sides of the argument represent a minority of the population. This is, therefore, a minority issue.
• The impact of same-sex marriage on children worried some respondents. However, research from other jurisdictions shows that there is no negative impact. This did raise the issue of changes to educational and family policy that will need to be looked at by the States. (For example, the automatic right of a mother to have responsibility for her children. At the moment, there is no automatic right for fathers.)
• Some were concerned that same-sex marriage would promote homosexuality.
• The cost of implementing the legislation is not inconsiderable and, it was felt, needed to be weighed against the number of beneficiaries. At the last census, 0.4% of the population are living together in a same-sex relationship. (Note: this is not the same as the percentage of the population that is LGBTQ.)
• The estimate of the number of equal marriages that will be held following the introduction of a new law is 44. This is similar to the uptake of civil partnerships following their introduction.

The proposal

Based on his findings, the Chief Minister will be bringing forward the following proposal for legislation –

• Civil and religious marriage for same-sex couples with an opt-in clause for religious groups and their clergy. This will preserve terms such as husband and wife. It will also include something similar to the “quadruple lock” that protects religious organisations from prosecution under anti-discrimination legislation and is included in the England and Wales legislation for same-sex marriage.
• Civil partnerships will be able to seamlessly convert to marriages. This can happen with or without a marriage ceremony as the couple chooses. Marriages will not be allowed to convert to civil partnerships, however, as this has proved unhelpful in other jurisdictions where it has been used to facilitate divorces.
• Humanist marriage will not be brought in.
• There will be no so-called “spousal veto” where, in England and Wales, a person in a marriage transitions and their spouse can prevent them from applying for a gender recognition certificate (in order to stop the marriage becoming a same-sex marriage). Jersey will seek to follow Scottish law on this point.
• Civil partnerships will not be extended to opposite-sex couples and will be gradually phased out, if possible, because they are seen by the majority of people as a “second-tier” of marriage. More work will be done to find ways to provide more rights to co-habiting couples. If civil partnerships cannot be phased out, the decision will be revisited and the Chief Minister will seek to bring in civil partnerships for opposite-sex couples.
• On the question of equalising adultery in the law, the Chief Minister will not be seeking to remove it from law as it is clear that sexual fidelity in marriage matters to people. He will be exploring the option of “no fault” divorces, the ability of a couple to apply jointly for a divorce (rather than one party bringing an action against the other) and the legal requirement for a divorcing couple to have mediation first. All options are being investigated with the intent of taking some of the acrimony out of divorce.

Timetable

The Chief Minister will report his findings to the States Chamber on 26 November 2014. The proposition will be brought in the first quarter of 2015 with a request for the States to approve the time frame and the process of legal change. Because there are extensive amendments that need to be made to other laws, a clear order of progress is required. (For example, within taxation law, a couple in a civil partnership can elect which partner is treated as the main taxpayer but, for a married couple, it is always the husband who is automatically the main taxpayer. This is clearly inequitable and needs amending.)

It is anticipated that Jersey will have same-sex marriage by the end of 2017.

You can download the full report on the consultation here.