As many of you know, I won the 2012 Law Society of Scotland Essay Award for a piece entitled ‘A Plea in Law for Equal Marriage’. The question to which my paper was a response was this:
An MSP would like to bring forward a member’s bill in the Scottish Parliament. She would like it to be topical and to make a useful change to Scots Law. What would you suggest?
The competition is annual, and the question varies slightly from year to year, but often turns on some aspect of law reform. One memorable winner from the recent past wrote her piece on the need for changes to the Scots law of succession. Some of what she wrote was in response to a report by the Scottish Law Commission; I mention her now because I thought about writing on the same topic when I first saw the competition advertised – only to see that someone else had beaten me to it. Friends of mine will no doubt find it typical that my first instinct was to write about one of the more arcane bits of private law.
As promised on Facebook and to readers of this blog many moons ago, this post is to let you know that the piece has just been published, both in print and online. The illustrations for this post are taken from the printed magazine. I should add that the versions are different – the hardcopy one is a mere 1500 words, unreferenced (as is typical in many professional, rather than academic, journals), and in certain respects clearer. Inevitably, however, there is some loss of nuance. That said, my biography in the paper version is accurate, while online I am still studying away. I assure readers that I have actually graduated
My piece begins thus:
In 2002, A was happily married to her husband, although she was not well. About two years earlier – and although she was only 33 – her periods had stopped, her voice had deepened and her shoulders had broadened. She began to grow facial hair, which she shaved off, obsessively, although she felt very odd doing so. She had always been considered “mannish” as a child and was unusually good at sport, to the point of being invited to play cricket with her high school’s First XI and coach junior rugby. Her husband had always liked “sporty girls”, and they met through a rugby supporters’ association.
Although she hid the burgeoning changes from her husband, of course he noticed them. Eventually, and in severe distress, she told him that she thought she was turning into a man. Medical tests revealed a huge spike in her testosterone levels and a hitherto undiagnosed genetic disorder that meant she had both male and female characteristics. At the time of the tests, she did not feel properly male or female, but it was clear that she still loved her husband, and he loved her in return.
The couple waited, and over a further two years – and without, at this stage, any treatment – the masculine characteristics became more dominant. ‘She’ felt more like ‘he’ and the couple agreed that A would undergo the necessary medical treatment and legal changes to be considered male. The medical process went relatively smoothly, albeit with pain and some adjustment complexities. The law, however, was less amenable. A was told that in order to finalise his transition from female to male, he and his husband would need to get divorced. Only then would his “interim gender recognition certificate” be made a “full” one.(1)
“But we’ve been married for nine years,” he pointed out. “Can’t we just stay married? Our 10th wedding anniversary is coming up.”
“No. You have to divorce, and then, if you want, you can form a civil partnership.”(2)
“But I thought marriage and civil partnership were supposed to be the same!”
A little background
As I explained to Catallaxy’s Sinclair Davidson on Facebook the other day, I became involved in this debate for two reasons:
1. Religious (and particularly Catholic) groups were arguing against same-sex marriage using empirical arguments, including contentions about the difficulty of enacting validly drafted law, the deployment of scientific research, and legal history.
2. At the same time, LGBT groups were making arguments in favour of same-sex marriage based on the idea of natural and inherent rights, particularly the idea that LGBT people ought to enjoy equal civil and human rights to non-LGBT people. Included in this was the contention that marriage is a right.
If you know anything about jurisprudence, you would be aware that this is completely ‘bassackwards’. Natural law in its modern form is in large part the creation of Christianity (particularly Catholicism; you will have all heard, I hope, of Aquinas and Augustine; the Protestant contribution is far more minor) and Islam, one Islamic thinker in particular (Al Ghazzali). Legal positivism, by contrast, is a creature of the Scottish Enlightenment (with some input from the pagan Roman jurists) and the English utilitarians, especially Bentham and H.L.A Hart.
I suspect that this is why the arguments both groups used (and continue to use, alas) were (and are) very, very bad. And I am not fond of bad arguments, especially when there are good ones available.
Now, I agreed with the LGBT ‘side’; that’s why I wrote the essay I did. But their arguments were crap. And the Catholic Church’s were similarly awful. Sometimes it really is a case of ‘play to your strengths’, lads (even when the batsman in question, like Kevin Pietersen, wants to belt everything on the leg side).
To that end, I wrote an empirical, positivist essay on the arguments for (and against, thank you kvd) same-sex marriage. When I reference ‘human rights’, it is only incidental to my major focus: providing empirical proof on and establishing the formal validity of a proposed change to the law. At all times, I kept my eyes focussed on the human institution of the Scottish Parliament (‘it looks like someone swallowed a jigsaw,’ says one friend of mine ‘and then threw up on the Old Town’).
The virtue of making an empirical argument focussed on validity and ‘doability’ is that it allowed Peter Nicholson, The Journal’s splendid editor, to extract a natural law argument against equal marriage from John Deighan, the Parliamentary Officer for the Roman Catholic Church in Scotland.
This is the right way around, jurisprudentially, and both arguments are better for it. The Catholic natural lawyer draws on his tradition, bringing forth its contribution to human rights law and the notion of entrenched rights. The Skeptic legal positivist draws on her tradition, bringing forth its contribution to liberal parliamentary institutions and scientific rigour.
I have only one small correction to make to a comment John Deighan raised in his piece. He asserts at one point that:
It is of little surprise that it creates the context where a call for same-sex marriage should win an essay prize for identifying the most-needed new legislation in our country.
As you can see from the question the Law Society set for the competition, there was no requirement that the legislation be ‘the most needed’ in Scotland, merely that it be useful and topical. If I were to make an argument for ‘the most needed’ legislation in Scotland, it would likely concern reform to the law of succession. However, Robert Gordon University‘s Amanda Spalding has already done a stellar job on that front. And she won last year.