In my earlier analyses of the Sexual Orientation Regulations, I failed to report that in addition to Clause 7(3), there is a further special exemption for “organised religion” at Clause 16 which deals with Qualifications Bodies. Clause 16(3) reads:
(3) Paragraph (1) does not apply to a professional or trade qualification for purposes of an organised religion where a requirement related to sexual orientation is applied to the qualification so as to comply with the doctrines of the religion or avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.
I’m not entirely clear what this is intended to refer to as far as the Church of England is concerned. Is ordination to be considered as a trade qualification?
The DTI guidance note says:
48. Regulation 16(3) provides an exception in relation to qualifications for purposes of an organised religion, which is similar to the exception in regulation 7 (see above), and to section 19 of the SDA. Where a qualification is for purposes of an organised religion, it allows the body to apply a requirement related to sexual orientation so as to comply with the doctrines of the religion or avoid conflicting with followers’ religious convictions. This could apply to qualifications required to be a minister of a particular religion, for example, to the extent that such a position constitutes a profession or trade for the purposes of regulation 16. Regulation 16(3) is consistent with Article 4.1 of the Directive, although it does not copy out its wording. This is because a requirement which meets the criteria defined in regulation 16(3) is necessarily a genuine and determining occupational requirement which is applied proportionately, within the meaning of Article 4.1.
I guess part of this clause may be “for the avoidance of doubt”. It would avoid the chance of an individual claiming that ordination was a qualification within the meaning of the legislation, whether or not that would subsequently be sustained by legal action.
It is often useful in looking at draft legislation on sexuality to compare with equivalent laws on gender from ten or twenty years ago. Does this clause have a parallel exemption for gender discrimination?
Yes, Clause 19 the Sex Discrimination Act 1975 (as amended) does have parallel references to “an authorisation or qualification” as defined in Clause 13 of the SDA. However, in the case of regulations 7(3) and 16(3) the ability to claim an exemption under this GOR depends in the first place upon having publicly stated in advance (in practice in writing) a specific condition relating to sexual orientation that the tribunal accepts as satisfying the rather stringent tests laid down in the regulations. In the gender case, this was explicit in ecclesiastical legislation. In the sexual orientation case, there is no… Read more »