Scotland's Journey to LGBTQ+ Equality: From Decriminalisation to Modern Rights

For decades, the lives of gay and bisexual men in Scotland were shadowed by laws that, while rarely enforced, cast a long, chilling presence. The journey from criminalisation to widespread acceptance and legal equality has been a complex and often arduous one, marked by significant legislative battles, societal shifts, and the persistent advocacy of a community determined to forge its own path. This is the story of how Scotland, lagging behind its southern neighbour, eventually caught up and, in many respects, began to lead the way in LGBTQ+ rights.

The year 1980 marked a pivotal moment, as Section 80 of the Criminal Justice Scotland Act finally decriminalised homosexual acts in private between consenting adult men. Yet, understanding why this change took so long requires looking back at the debates and hesitations that surrounded the landmark Wolfenden Report in England and Wales a decade earlier. While the Home Office had commissioned the report to examine the laws around homosexuality, leading to the Sexual Offences Act of 1967, Scotland's unique legal and social context presented different challenges.

The Scottish Hesitation: Why the Delay?

Why was Scotland not automatically included in the Sexual Offences Act? MPs at Westminster raised questions about its relevance to the Scottish legal system. The focus in England and Wales was primarily on private homosexual acts, but in Scotland, prosecutions for such acts were exceedingly rare. The legal requirement for clear evidence and a judgment that prosecution was in the public interest meant that consensual private acts between men were seldom pursued. Some parliamentarians even argued that Scottish law was, in some ways, superior to England's, as it wasn't actively used to persecute private consensual behaviour.

This perspective, however, overlooked a crucial reality: the psychological and social impact of these laws. Even if rarely enforced, the existence of such legislation meant that gay and bisexual men in Scotland lived under the constant, albeit often unspoken, threat of legal repercussions. The societal perception that they were criminals, regardless of the law's practical application, created a climate of fear and marginalisation. It's a stark reminder that laws, even dormant ones, can carry immense weight.

Adding a unique Scottish dimension to the Wolfenden Report was Adair, one of the four Scottish members. A former procurator fiscal from Glasgow and an elder of the Church of Scotland, Adair stood in opposition to decriminalisation, penning a dissenting report that sparked considerable discussion in the Scottish press. The political landscape was further complicated by figures like Willie Ross, the Secretary of State for Scotland during key periods, who also expressed reservations about decriminalisation in Scotland.

The Unseen Campaigners: Paving the Way for Change

The fight for decriminalisation in Scotland post-1967 wasn't led by a single, monolithic organisation. Instead, it was a slow-burning, persistent effort driven by a coalition of dedicated individuals and supportive groups. One notable force was a conservative organisation that, perhaps surprisingly, aimed to ensure the issue was treated with the seriousness it deserved. Their efforts found unexpected allies in the Church of Scotland and the Catholic Church, which provided crucial support, offering rooms for meetings and a degree of public backing. This highlights the often-overlooked support that existed within religious institutions, individuals who believed in the necessity of reform.

These campaigners cultivated vital connections with supportive Members of Parliament and Peers in Westminster, navigating the labyrinthine corridors of power with remarkable tenacity. Progress, however, was painfully slow. By 1977, a candid assessment shared with Gay News magazine suggested little immediate prospect of parliamentary action, underscoring the uphill battle they faced.

A Turning Point: The Employment Tribunal and Public Opinion

The breakthrough finally came in April 1979, stemming from an unexpected quarter: an employment tribunal decision. John Saunders, a handyman at a Scottish residential camp for schoolchildren, was dismissed from his job. His employers admitted his work was satisfactory, and Saunders had no criminal record, nor had he ever made any advances towards children. Yet, his appeal for unfair dismissal was rejected by an Employment Appeal Tribunal. The rationale? The prevailing belief among some that homosexuals posed a greater risk to children than heterosexuals.

This discriminatory ruling ignited public outcry. Politicians and national newspapers alike criticised the decision, and in the wake of London Pride on June 28th, a powerful petition was delivered to Downing Street. Handed in by trade union leaders, celebrities, and politicians, the petition highlighted the injustice and the interconnectedness of legal status and employment rights. The message was clear: how could men be protected in their employment when their private consensual acts were still criminalised?

This case provided the crucial momentum needed for legislative change. David Cook, a Member of Parliament, championed an amendment to the Criminal Justice (Scotland) Bill, aiming to extend the decriminalisation achieved in England and Wales to Scotland. To gain wider support in the House of Commons, the age of consent was set at 21, a concession despite Cook's personal support for a lower age. The amendment passed in the Commons by a narrow margin of 145 votes to 123, a significant victory, though notably, all 22 Scottish Conservative MPs voted against it. The Scotsman newspaper rightly hailed it as the most significant triumph for the Scottish gay community in a decade.

Navigating the Lords: The "Two Men" Clause

The bill then moved to the House of Lords, where another hurdle emerged. Gay News had reported that the proposed amendment for Scotland did not include the "two men" limit that was part of the Act for England and Wales, which restricted decriminalisation to acts involving no more than two men. Opponents of reform lobbied the Lord Advocate, who subsequently supported a new amendment to reintroduce this restriction. This amendment was passed in the House of Lords, a move intended to ensure the bill's overall passage.

Ultimately, the Criminal Justice Scotland Act 1980 brought about the decriminalisation of homosexual acts in private between consenting men over 21. While the "two men" clause was a concession, the primary goal of removing the criminal threat for private consensual acts had been achieved.

The Long Road to Full Equality

The journey didn't end in 1980. Scotland continued to grapple with various aspects of LGBTQ+ equality. Same-sex sexual activity became legal, and the age of consent was equalised to 16 in 1995, aligning it with heterosexual activity. The subsequent Sexual Offences (Amendment) Act in 2000 further repealed remaining criminal provisions related to homosexuality, solidifying these rights.

The fight for recognition and equal rights extended beyond decriminalisation. Same-sex marriage was legalised in Scotland in 2014, mirroring the changes in England and Wales. Furthermore, the Scottish Government has increasingly focused on policies ensuring equality for lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) citizens and communities, making Scotland a country recognised for its progressive stance.

It's important to acknowledge the historical context. While Scotland lagged behind England and Wales in decriminalisation by 13 years, its eventual legislative changes and subsequent advancements have positioned it as a leader in LGBTQ+ rights in Europe. Despite the progress, contemporary reports suggest that life for some LGBTQ+ young people in Scotland can still be challenging, underscoring the ongoing need for vigilance and continued support.

From the clandestine poems of Marie Maitland, hinting at same-sex affection centuries ago, to the modern legal framework that champions equality, Scotland's LGBTQ+ history is rich and multifaceted. The struggle for decriminalisation and equal rights was a testament to the resilience and dedication of countless individuals and organisations who dared to challenge injustice. Today, while Scotland is often regarded as one of the most LGBTQ+-friendly countries globally, the lessons of the past serve as a vital reminder of the ongoing pursuit of a truly inclusive society.