On 7 March the Department of Trade and Industry published a consultation document and draft regulations to amend the Sex Discrimination Act 1975 (SDA) in order to bring it into line with the Equal Treatment Directive which comes into force in October. Amongst many other changes the proposals will alter the circumstances in which sex discrimination is legal in the Church of England.
The most important consultation documents can be downloaded from the website of the DTI’s Women and Equality Unit.
consultation document
executive summary
draft regulations
These and other documents are linked from here including the response form. Unfortunately this Word document uses the font Univers55; if you do not have this font installed on your computer you might find the document unintelligible. The consultation period ends on 31 May 2005.
The proposed changes include the repeal of section 6 of the Priests (Ordination of Women) Measure 1993. The DTI view is that this section is too widely drawn. In its place a new section 19 of the SDA would still allow discrimination in certain circumstances, and would be applied equally to all religious bodies.
General Synod members have been sent a paper outlining how the proposed changes will affect the Church of England, and giving the text of the proposed new section 19 of the SDA. I have copied this paper below the fold.
GS Misc 777
UPDATING THE SEX DISCRIMINATION ACT
On 7 March the Department of Trade and Industry published a consultation document and draft regulations to amend sex discrimination legislation in order to bring it in line with the Equal Treatment Directive which comes into force in October. With the consent of the Archbishops’ Council and House of Bishops the draft regulations include the proposed repeal of section 6 of the Priests (Ordination of Women) Measure 1993.
The background is that when the 1993 Measure was being prepared there was some doubt whether the ‘mixed economy’ which the Church of England proposed to put in place in relation to women priests would be compatible with the exemption provided by section 19 of the Sex Discrimination Act 1975. Under that section employment, authorisation or qualification for purposes of religion can be limited to one sex ‘to comply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers’.
As a result, with the agreement of the Synod and Parliament, section 6 was included in the 1993 Measure. It is very widely drafted and effectively provides that women cannot in any circumstances bring a case under the Sex Discrimination Act in relation to ordination, licensing or appointment within the Church of England. The view of the DTI is that such a widely drawn exemption would not be compatible with European law once the Equal Treatment Directive came into effect this October.
The proposals that the DTI published on 7 March involve both the repeal of section 6 of the 1993 Measure and the substitution of a new section 19 of the Sex Discrimination Act. The net effect will be to extend protection against discrimination while ensuring that the measure of freedom that all churches and faiths need when matters of doctrine and religious belief are engaged is not unreasonably circumscribed. The welcome consequence is that we shall return to the situation which obtained between 1975 and 1993 when all churches and faiths were subject to the same provisions of the law of the land: there will no longer be a special Church of England exemption.
The proposed new section 19 is of particular importance because the new regulations will, for the first time, make express provision to bring office holders within the protection against discrimination provided by the 1975 Act Since clergy in most denominations and faiths are not employed it has, up to now, been the authorisation and qualification provisions of the Act which have been most relevant, for example in relation to the selection of individuals for the ordained ministry. The express extension of the anti-discrimination provisions from employment to office holders will make all churches and faiths groups vulnerable to challenge in relation to appointment decisions in a much wider range of circumstances, save where the section 19 exemption applies.
I attach a copy of the proposed new section 19. It defines in relation to gender, gender reassignment, marital status and history and civil partnership the circumstances in which churches and other faiths may apply requirements which would otherwise be contrary to the Sex Discrimination Act.
A full copy of the consultation document – ’Updating the Sex Discrimination Act’ – and the draft regulations (which cover a wide range of other matters) is available on the DTI website. The consultation periods ends on 31 May and the expectation is that Parliament will be invited to approve regulations before the summer recess.
If Synod members require further clarification Stephen Slack or I will do our best to help.
William Fittall
Secretary General
Church House
Westminster SW1P 3NZ
16 March 2005
Proposed new section 19 of the Sex Discrimination Act 1975
19.—(1) Nothing in this Part shall make it unlawful to apply a requirement in relation to employment where –
(a) the employment is for purposes of an organised religion;
(b) the requirement is one to which subsection (3) applies; and
(c) the requirement is applied –
(i) so as to comply with the doctrines of the religion, or
(ii)because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly-held religious convictions of a significant number of the religion’s followers.
(2) Nothing in section 13 shall make it unlawful to apply a requirement in relation to an authorisation or qualification (as defined in that section) where –
(a)the authorisation or qualification is for purposes of an organised religion;
(b) the requirement is one to which subsection (3) applies; and
(c) the requirement –
(i) is applied so as to comply with the doctrines of the religion, or
(ii)is applied by the authority or body concerned, or by the person by whom the authority or body acts in a particular case, so as to avoid conflicting with the strongly-held religious convictions of a significant number of the religion’s followers.
(3) This subsection applies to –
(a) a requirement to be of a particular sex;
(b) a requirement not to be undergoing or to have undergone gender reassignment;
(c) a requirement relating to not being married or to not being a civil partner;
(d) a requirement, applied in relation to a person who is married, or is a civil partner, that relates—
(i) to the person, or the person’s spouse or civil partner, not having a living former spouse or a living former civil partner, or
(ii) to how the person, or the person’s spouse or civil partner, has at any time ceased to be married or ceased to be a civil partner.