The Equality Bill 2009
Briefing by the Lesbian and Gay Christian Movement [LGCM]
1. LGCM is the largest membership-based organisation representing lesbians and gay men in the United Kingdom, with over 4,000 members within its central and associated local and denominational groups. It also represents an important strand of religious opinion within all the main denominations, drawn from those who, whatever their sexual orientation, subscribe to our Statement of Conviction: -
“It is the conviction of the members of LGCM that human sexuality in all its richness is a gift of god gladly to be accepted, enjoyed and honoured as a way of both expressing and growing in love, in accordance with the life and teaching of Jesus Christ. Therefore it is their conviction that it is entirely compatible with the Christian faith not only to love another person of the same sex, but also to express that love fully in a personal relationship.”
LGCM’s aims include the advancement of the Christian religion, and the advancement of education in all areas relating to Christianity and sexuality.
2. LGCM played a very active part in the process that led to the adoption of the Employment Equality (Sexual Orientation) and (Religion and Belief) Regulations, the Equality (Sexual Orientation) Regulations, and – last but not least – the Civil Partnership Act. We have not so far intervened in the discussions on the intended Equality Bill. We hope our views can be taken into account in further Parliamentary discussion of this measure.
3. In principle, we strongly support the Bill and hope that its provisions, to ensure equality and the enjoyment of their rights by all minority groups in our society, will greatly reinforce the social integration and economic power of British society. We are nevertheless concerned about some of the intended exceptions and exemptions to the general rules which will apply to the rest of society, put forward in the name of freedom of religion, and especially those detrimental to the rights of lesbian and gay citizens and those who support them within each religion. In this last context, however, we welcome the recognition in Clause 10 that protection will cover people who belong to the same religious group or denomination but do not share all its beliefs.
4. While religion and belief are not inherent, and are expressly capable of alteration (and the absolute freedom to such alteration is protected in the European Convention, and so the Human Rights Act), sexual orientation is now generally accepted as an inborn characteristic, even although individuals, especially when young, may have to make a journey to understand and accept it for themselves.
5. It should be an absolute principle that all bodies undertaking functions within or on behalf of the public sector, including faith schools, must be bound by the general rule requiring respect for the protection of relevant characteristics such as sexual orientation. That also includes acceptance of the proposed new duty in Clause 143 of the Bill to act towards eliminating discrimination, harassment and victimisation, advance equality of opportunity, tackle prejudice and promote understanding. This is one of the main pillars of the Bill.
The advent of civil partnership and its place in the Bill
6. We warmly welcome the proposal to include “marriage and civil partnership” as a separate protected characteristic. But we are concerned that this category is excluded outright from protection under so many important Parts of the Bill. We appreciate that the intended effect of these exclusions may be to preserve the special social advantages accorded to marriage and civil partnership from being challenged on equality grounds, but the reverse possibility should be examined carefully in relation to each Part of the Bill.
7. We favour the legal equalisation of civil partnership and marriage, and where there is good reason to apply a restriction across the board (eg if there were no accommodation at an hotel suitable for couples) that is fine by us. Where people are discriminated against purely because they are in a civil partnership, however, when no such restriction is applied to the married, this is not acceptable. Clause 22 (3) would deal with this case by treating the denial of services , work etc. or other discrimination as one relating to sexual orientation. But this might not meet the case. It is worth underlining that the status of civil partnership implies no intrinsic sexual relationship, that its contribution to the stability of society as a whole was strongly stressed by the Government and accepted by others throughout the discussion and passage of the civil partnership legislation, and that many Christian leaders supported the passage of that Act, including in particular eight out of the ten Bishops voting in the crucial final decision on the then Bill in the Lords, and indeed a former Archbishop. It would be bizarre if the Bill led to those contracting civil partnerships (or indeed marriage) being themselves treated adversely by comparison with those who had chosen not to contract these relationships. Indeed, this would negate the whole – and welcome – purpose of including them in the protected categories at all.
8. The possibility of marriage and civil partnership being treated differently from one another is clear from the drafting of paragraph 2 (4)(c) of Schedule 9 of the Bill (and this appears elsewhere) where the intended occupational requirement can be “a requirement not to be married OR a civil partner.” This provision might be corrected by inserting “EITHER” before “married”.
9. In Clause 143, mentioned above, “marriage and civil partnership” are not among the “relevant protected characteristics” set out in sub-Clause (6). They should be added. We would incidentally expect this to be supported by those who attach special importance to protecting the status of marriage within our society.
10. Faith schools. Schedule 2 of the Bill, providing special exceptions to religious organisations in the work field to allow them to discriminate in relation to sex, marriage etc. and sexual orientation, does not seem to sweep away the pernicious provisions of Section 60(5) of the School Standards and Framework Assessment Act, 1998. That sub-section (in paragraph (b)) allows foundation or voluntary aided schools with a religious character to terminate the employment of any teacher, of whatever subject, because of “any conduct on his part which is incompatible with the precepts, or with the upholding of the tenets, of the religion or religious denomination” in question. It is all too plain that this could include either same-sex behaviour in a teacher’s private life outside the school, or even his/her contracting a civil partnership. The earlier parts of s.60(5), which allow preference to be given to those whose religious opinions accord with the “tenets of the religion” specified, who attend its religious worship, or are willing to give religious education at the school in accordance with those tenets, also need a hard look. They would allow discrimination, for instance, against those holding to LGCM’s Statement of Conviction. The reference in this provision is also to “religious education”. While there is no objection to discriminatory preference in the case of “religious instruction”, this is different from “religious education” and the latter should be an area in which no discrimination is allowed. The substance of the SSFA provisions should be brought into line with those in Schedule 9(2) (8).
11. The main provisions of Schedule 9 (2) speak of “compliance with the doctrines of the religion”. In many instances an alleged “doctrine” over same-sex relationships is being applied which is not, in fact, settled doctrine at all. In many denominational bodies, including for instance the Church of England, there is argument going on over just what any such doctrine should be. Lesser documents, containing no denomination-wide authority, have been cited, and sometimes accepted by those outside, as justification for denial of the rights granted to others, including other minorities in society. We believe that, strictly applied, the “compliance” criterion should therefore have very little effect. What remains is the so-called “non-conflict” principle, which is a polite reference to the determination of many to stick to their prejudices and seek to justify them by reference to their own religious beliefs.
12. We welcome the tighter definition in paragraph 2 (8) of those posts to which discriminatory treatment might be applied. We are against any attempt to loosen or widen the wording so as to cover more posts. In fact, the formulae are still too wide. They would, for instance, permit church authorities to require that an organist or sub-organist should not enter a civil partnership, or a paid chorister or cross-bearer should not have a same-sex relationship, because they were “mainly involved in the observation of liturgical or ritualistic practices”. What valid defence can there be for excluding such persons from the rights enjoyed by the rest of society?
13. Paragraph 3 of the Schedule allows for religious discrimination in employment in terms of the alleged occupational requirement to be of a particular religion or belief, where the employer’s ”ethos” so requires. We are concerned lest this open the door to much wider discrimination, not in terms of orientation but of beliefs similar to those of LGCM, especially as it appears to apply to all employers, including those in the commercial field. An example might be the desire of an employer in a hotel, who disapproved of civil partners but was nevertheless bound by law to receive them, wanting to ensure that his staff shared his own religious “ethos”. Since harassment on religious or sexual orientation grounds is not prohibited, such an employer might want staff to share his belief that they could behave accordingly towards such guests, and penalise them if they did not.
Services and goods
14. The terms of Schedule 23 appear to follow existing law, but as noted above it is crucial to retain paragraph 10, which requires religious or belief organisations to observe the same rules as the rest of society if they are carrying out a public authority contract or acting on behalf of such an authority. On another point, once more marriage and civil partnership are excluded by Clause 26 (1), and this could open the door to discriminatory treatment as noted above. (The same applies to Part 4 and Part 7).
15. Protection from harassment has been systematically excluded throughout the Bill in respect of religion or belief and sexual orientation. This follows the tense discussions in Parliament over the issue on several past occasions, as well as judicial comments on the harassment provisions of the Equality (Sexual Orientation) (Northern Ireland) Regulations. Both alone, and in combination of the exclusion of marriage and civil partnership from so much of the Bill, we are uneasy about the risk that in practice this may mean a serious loss of protection in these areas, and we believe the likely effects should be more closely considered in each Part, rather than applying a single overall approach to the issue.
16. Schools. A particular example arises in Part 6 (Education) where Clause 80(10) permits harassment of pupils on grounds of gender re-assignment, religion or belief, or sexual orientation ( see also paragraph 283 of the Explanatory Notes; this paragraph is contradicted by one of the examples given in the next paragraph, of a teacher ridiculing a particular pupil in class because of his beliefs..”This would be harassment”). It is surely unacceptable for pupils to be exposed to such harassing behaviour from a teacher, on grounds of sexual orientation as well as belief.
17. Clause 80(2)(a)–(d) forbids discrimination on belief grounds in the way a pupil is provided with education; afforded access to a benefit, facility or service; or not provided with either of these. Schedule 11exempts faith schools from these rules. A separate paragraph (6) rightly allows exemption related to worship or other religious observance. We should like to be sure that unfair treatment could not be inflicted under this exemption upon a pupil who voiced beliefs unwelcome to the school authorities (for instance, those of LGCM’s Statement of Convictions). We appreciate that this cannot be the intention of the exemption but one must examine the possibility of unintended consequences.
Revd. Sharon Ferguson
Chief Executive, LGCM May 2009