Same Sex Parents
Know
your
rights
An Usdaw guide to rights and benefits for same sex parents
Introduction
Over the last 10 years legal rights
for Lesbian, Gay, Bisexual and
Transgender (LGBT) people have
changed beyond recognition.
LGBT parents now enjoy very
similar rights to heterosexual
parents.
Despite this, LGBT parents are
sometimes wrongly refused
paternity leave, adoption leave
and time off for dependants on
the grounds of their sexual
orientation or gender identity.
Managers sometimes fail to
understand that our LGBT members can
be parents and that they have exactly the
same rights to time off and pay as straight
couples in these circumstances.
This leaflet aims to help reps support LGBT members by
setting out the basic rights1 same sex parents have. As the
Equality Act has not yet been implemented in Northern
Ireland, rights for same sex parents there are unfortunately
less robust. There is a section at the end of this leaflet that
explains rights in Northern Ireland.
1
The rights set out in this leaflet are legal minimum rights – Usdaw may have negotiated improvements with your
employer. Check with your Usdaw rep or local Usdaw office to find out if you have better rights than those set out in this leaflet.
ore
For m mation
r
d info
ntal
detaile ty and pare ies
i
ualit
tern
on ma ntact the Eq 2804
co
24
rights
0161 2 aw’s
n
o
n
o
sd
Secti
y of U ental
p
o
c
a
Par
for
ty and r visit
i
n
r
e
t
o
Ma
Guide
aby
Rights w.org.uk/b
a
d
us
www.
nload
to dow ook
the eb
Maternity Leave
If you are an employee you are entitled to 52 weeks’
maternity leave from the first day of your job.
Maternity Pay
If you have worked for your employer for more than 26 weeks and you earn on
average over £111 per week you may also be entitled to Statutory Maternity Pay.
This is paid at 90% of your average earnings for the first six weeks and then at a
flat rate of £138.18 for the next 33 weeks. The last 13 weeks are unpaid.
Paternity Leave
Ordinary Paternity Leave
If you are an employee and have worked for the same
employer for 26 weeks by the 15th week before the baby is
due you should qualify for two weeks’ paternity leave if you
are the partner of the mother and you expect to have
responsibility for the upbringing of the child. You don’t
have to be the civil partner of the mother to qualify.
Ordinary
Paternity Pay
If you have worked for
your employer for over 26
weeks and you earn over
£111 per week you may
also be entitled to
Statutory Paternity Pay.
This is paid for up to two
weeks at a flat rate of
£138.18 per week
although Usdaw has
negotiated improvements
to the rate of paternity
pay in many companies.
Paterni
ty
leave is
availab
le t
women o
well as as
men.
Additional Paternity Leave
An additional 26 weeks of paternity leave is available to partners of mothers
where:
You qualify for Ordinary Paternity Leave (see opposite page).
Remain with your employer up until the point you take your additional
paternity leave.
The mother of the baby has ended her
maternity leave and returned to work.
The leave cannot be taken in the first 20
weeks after the baby is born (this leave
is reserved solely for the mother) and
it must end by the child’s fifth
birthday. You must take a minimum
of two weeks Additional Paternity
Leave.
A ne
to ‘sh w right
leave’ ared paren
t
to be
introd al
for pa
uced
rents
wi
due o
n or a th babies
fter 5
2015
Apri
will
to sam apply equa l
l
e sex
paren ly
when
t
s
it com
es
force
next y into
ear.
Additional Paternity Pay
You will be entitled to Additional Paternity Pay if you qualify for Ordinary
Paternity Pay (see opposite) and your partner/the mother of your child was
entitled to Statutory Maternity Pay or Maternity Allowance and she has returned
to work.
Additional Paternity Pay is paid at £138.18 a week for a maximum of up to 19
weeks (week 20 after the baby’s birth to week 39).
Additional Paternity Leave and Additional Paternity Pay are also available to same
sex couples adopting.
Adoption
Adoption in England
and Wales
There has never been a law preventing
LGBT people from adopting children.
However the Adoption and Children
Act 2002 allows unmarried couples,
including same sex couples, to apply
for joint adoption.
Any unmarried couple, including a
same sex couple wishing to adopt will
need to be able to demonstrate that
their partnership is an – ‘enduring and
stable family relationship’.
Civil Partners who jointly adopt a child
have a legal right for one of them to
take adoption leave (and receive
statutory adoption pay) and for the
other to take up paternity leave
and pay.
LGBT single people also have a right to
adopt.
Adoption in Scotland
The Adoption and Children (Scotland)
Act 2007 allows same sex couples to
adopt jointly giving them the same
parenting rights as straight couples.
If you want to adopt as a couple in
Scotland you must be:
Civil partners; or
Living together as if civil partners
in an enduring family relationship.
Fostering
LGBT people can apply to become
foster parents. To be approved as a
foster parent the applicant has to
satisfy a detailed assessment in which
the welfare of the child is paramount.
treated varies from Local Authority to
Local Authority – some are welcoming,
others are not. However LGBT people
are legally in a stronger position now
than ever before.
In practice, how applications from
prospective LGBT foster parents are
The introduction of the Equality Act
2010 protects LGBT people from
The Equality Act 2010 protects LGBT
people from discrimination on the
grounds of sexual orientation and
gender identity in the provision of
goods, facilities and services. This
means that adoption agencies cannot
refuse a potential adoptive couple
on the basis of their sexual orientation.
Faith based adoption agencies also
have to comply with the new law and
cannot refuse to assess same-sex
couples or lesbian and gay individuals.
If you are yourself an adopted child or
if you have given up a child for
adoption then support organisations
are listed at the end of this leaflet.
Adoption Leave
If you have worked for the same
employer for six months before the
week in which an approved adoption is
discrimination on the grounds of their
sexual orientation and gender identity
when accessing goods, facilities and
services – including foster care services.
The law now recognises that being gay
doesn’t make you a bad parent just as
being straight doesn’t necessarily make
you a good one.
made you should qualify for 12
months’ adoption leave.
Where you are a member of a couple
the partner who doesn’t take adoption
leave may take Ordinary and/or
Additional Paternity Leave within 56
days of the child being placed with you
for adoption.
Adoption Pay
If you have worked for your employer
for more than 26 weeks and you earn
on average more than £111 per week
you may be entitled to Statutory
Adoption Pay. This is paid at a flat rate
of £138.18 for 39 weeks.
Time Off for Dependants
From the first day of your job, you can
take reasonable (but unpaid) time off
work to help family members who
depend on you in an emergency, for
example, if your child is ill or your
childcare arrangements fall through.
A dependant is a spouse, a civil
partner, a child, a parent, or a person
living in the same household as the
employee, other than his/her
employee, tenant, lodger or boarder.
It covers:
Same sex partners who haven’t
registered their partnership.
Children, including those who
aren’t your children but who live
in the same house, such as step
children whatever their age.
The law
doesn’t say
how long
‘reasonable’
is but this
right is
there to
give you
time to make
alternative care
arrangements
rather than stay off
work to care yourself
(although in certain limited
circumstances this may be considered
reasonable, for example if you cannot
make alternative care arrangements).
LGBT and The Law
Civil Partnership Act
2004
2
The Civil Partnership Act, which came
into force in December 2005, marks a
big step forward in the acceptance of
LGBT people as equals in society. It
gives same sex couples who register
their relationship as a Civil Partnership
rights equivalent to marriage.
The legal rights only apply to same sex
couples who officially register their
partnership through the same process
as a heterosexual couple marrying at a
registry office. This enables the same
sex civilly partnered couple to claim the
same tax arrangements that apply to
straight married couples, the same
access of next of kin rights, and no
liability for inheritance tax.
Couples who have registered their
partnership can choose to adopt the
surname of their partner in the same
way as married heterosexual couples.
Parental Leave
Parents who are employees can take up
to 18 weeks’ unpaid parental leave
(after they have worked for the same
employer for at least one year). The
leave must be taken before the child
reaches the age of five, or where the
child has been adopted, within five
years of the child being placed for
adoption.
Parents of a disabled child (where the
child is entitled to Disability Living
Allowance) are entitled to take up to 18
weeks. The leave must be taken before
the child’s 18th birthday.
To take parental leave you must have or
expect to have parental responsibility.
A civil partner automatically has
parental responsibility.
Same sex couples who haven’t
registered their partnership may have to
Gender Recognition
Act 2004
The Gender Recognition Act is an
important piece of legislation for our
transgender members as it enables
them to acquire full legal equality in
their acquired gender. It means that
anyone who obtains a Gender
Recognition Certificate is entitled to
have documentation (such as their
birth certificate, passport and driving
licence) to be changed to reflect their
acquired gender.
acquire parental responsibility either by
entering into a legal agreement or
through a court order.
If you have adopted a child, parental
responsibility is given from the date of
the placement.
Neither grandparents nor other carers
are entitled to parental leave unless
they have a parental responsibility order
which is difficult to acquire if the child
doesn’t live with them at least part of
the time. However according to
Government Guidance from the
Department of Business, Enterprise and
Regulatory Reform (BERR) it is good
practice for employers to extend
entitlement to parental leave to those
with informal responsibility for looking
after a child, such as grandparents,
step-parents or long-term foster
parents.
requirement for anyone currently
married to divorce their current
marriage partner before obtaining a
full Gender Recognition Certificate
where consent is obtained. See the
next section Equal Marriage.
It is important to understand that
anyone – including a trade union rep –
who acquires information about
someone’s transgender status commits
an offence if they pass that information
to a third party (for example an
employer) without the individual’s
consent.
In England, Wales and Scotland equal
marriage legislation has ended the
2
Thank you to the TUC for information concerning
Gender Recognition and Civil Partnership.
Equal Marriage
In England and Wales the Marriage (Same
Sex Couples) Act 2013 and in Scotland the
Marriage and Civil Partnership (Scotland)
Act 2014 enables same sex couples to
marry in civil ceremonies. The first marriages
of same sex couples in England & Wales
took place on Saturday 29 March 2014.
In Scotland, the implementation of the Act’s
timetable will see the bulk of the law coming
into force by the end of 2014, with the first
same sex marriages likely to take place at
the same time.
The equal marriage provisions allow for:
Same sex couples to marry in civil
ceremonies, or a ‘religious’ marriage
ceremony where the religious
organisation has opted in to
solemnising same sex marriage.
Civil partners to convert their civil
partnerships into marriage.
Individuals to change their legal
gender without having to end their
marriage where both parties consent.
In the past, in order to obtain a full
gender recognition certificate the
partner changing gender had to
divorce their current marriage partner.
Rights for Same Sex Parents
in Northern Ireland
Adoption
Although same sex couples in
Northern Ireland have the right to
foster children, the law on adoption
currently prevents a couple in a civil
partnership from adopting.
Unmarried couples in England,
Scotland and Wales can apply jointly
to be considered for adoption
regardless of their sexual orientation
but anyone unmarried in Northern
Ireland is currently only eligible for
consideration as an individual. Those
in civil partnerships in Northern
Ireland cannot apply to adopt a child
either individually or as a couple.
However the legislation does protect
organisations and their representatives from
successful legal challenge, if they do not
wish to marry same sex couples.
In England and Wales following a
Government consultation on the future of
civil partnerships now that equal marriage
legislation has been introduced, the
Government has concluded the Government
will not be making any changes at this time.
From December 2014 couples in a civil
partnership, couples in a civil partnership
will be able to convert their relationship to a
marriage.
However the good news is that in June
2014, the Court of Appeal ruled that the
current ban was unlawful, paving the way for
same sex couples (whether they have
registered their partnership or not) to adopt
children in Northern Ireland. This brings the
law on adoption and same sex couples in
Northern Ireland into line with the rest of the
UK. However, this decision may yet be
appealed to the UK Supreme Court.
In Scotland, the Government intends to
consult later this year on the future of civil
partnerships. However they have made it
clear that existing civil partnerships can
remain and there will be no obligation on
existing civil partners to change their
relationship to a marriage if they do not wish
to do so.
Equal Marriage
In April 2014, the Northern Ireland Assembly
rejected a motion calling for the introduction
of same sex marriage by just 8 votes. This
was the third time in 18 months that
Stormont rejected the proposals. Equality
and Human Rights Campaigners including
Amnesty International have made it clear
that politicians in Northern Ireland will not be
able to block same sex marriage indefinitely.
Same sex couples can register their civil
partnership under the Civil Partnership
(Northern Ireland) Regulations 2005.
Get advice
For more information visit Usdaw’s website
www.usdaw.org.uk or call the helpline 0845 60 60 640*
Alternatively you can write to Usdaw, 188 Wilmslow Road
Manchester M14 6LJ or email: [email protected]
Support Organisations:
Adoption UK
Human Fertilisation and
Embryology Authority
Supporting adoptive families before,
during and after adoption.
Telephone: 0844 848 7900
Website: www.adoptionuk.org
HFEA licenses and monitors clinics
that carry out in vitro fertilisation (IVF)
and donor insemination.
Telephone: 0207 291 8200
Website: www.hfea.gov.uk
Albert Kennedy Trust
Rainbow Families
Provides accepting, supportive and
caring homes for lesbian and gay
young people who would otherwise be
homeless or in a hostile environment.
Telephone (London): 0207 831 6562
Telephone (Manchester): 0161 228 3308
Website: www.akt.org.uk
Lesbian parent group (inc. co-parents
and parents to be) in Brighton and Hove.
Telephone: 0161 434 4118
Website: www.rainbowfamilies.org.uk
Allkids
Parenting/child directory which also
carries topical information.
Telephone: 01642 775 549
Website: www.allkids.co.uk
British Association for Adoption
and Fostering
Leading UK wide membership organisation
for adoption, fostering and child care.
Website: www.baaf.org.uk
Gay Dads – UK
LGB campaigning organisation
offering a free information service.
Telephone: 08000 502 020
Website: www.stonewall.org.uk
UK Fertility & Parenting Forum
Post questions, comments, and respond
to messages. Topics cover fertility,
pregnancy, parenting and child
development.
Website: www.fertilityzone.co.uk
2
Thank you to the TUC for information concerning
Gender Recognition and Civil Partnership.
Scan here
⤴
Support group for gay fathers.
Website: www.gaydads.co.uk
Stonewall
Scan the code with
your smartphone to
view all the latest news
and resources from our
Supporting Parents and
Carers Campaign.
www.usdaw.org.uk/spc
*to scan the code, download a QR reader app from your app
store. A charge may be applied by your network provider.
August 2014
Published by Usdaw, 188 Wilmslow Road, Manchester M14 6LJ
Leaflet No. 372