Sexual Orientation Discrimination Laws

To critically analyse sexual orientation discrimination laws and problems recognised with the right to have a religion and religious beliefs, this essay will consider the development of sexual orientation discrimination legislation in the United Kingdom (UK) and European Union (EU) and how it has proved to have been slower than developments in other areas of discrimination associated with gender. Moreover, there is also a need to evaluate genuine occupational requirements and conflicts with regards to those of religion and the right to religious belief in legislation that have been enacted. Then, with a view to illustrating the problems that have been recognised, there is also a need for this essay to consider matters of conflict in areas of practical concern such as employment through the analysis of the decisions of the judiciary and the legislation enacted. In addition, there is also a need to consider the level of controversy with reference to recent media coverage including newspaper articles and the Pope’s recent statements. There is also a need to determine whether there has been a proper transposition of EU law to UK law along with the government’s attitude towards sexual orientation discrimination allied to the Equality bill to determine whether it can rectify the conflicts identified. Finally, this essay will conclude with a summary of the key points derived from this discussion regarding the critical analysis of sexual orientation discrimination laws and problems with the recognition of the right to have a religion and religious beliefs.

To begin with, however, ostensibly it has been recognised that sexual orientation is focussed on the understanding of emotional, romantic, and/or sexual attraction to men, women, both genders, neither gender, or even another. On this basis, the American Psychological Association also recognised that sexual orientation relates to an individual’s sense of “personal and social identity based on those attractions, behaviours expressing them, and membership in a community of others who share them”. [1] At the same time, however, there is a need to appreciate that the issue of sexual orientation is usually founded upon the gender of those found to be sexually attractive – although it is commonly recognised as being based on heterosexual, homosexual, and bisexual relationships read in keeping with the Employment Equality (Sexual Orientation) Regulations 2003. [2] But there is also a need to understand that these orientations exist along something of a continuum ranging from exclusive heterosexual to exclusive homosexual – although this does not suit everyone because as some people may even look upon themselves as asexual (i.e. without attraction) and some ‘sexologists’ believe that it is an oversimplified view of this area. [3]

Nevertheless, for the purposes of this essay’s discussion, it has been recognised that issues of sexual orientation can cause some significant problems not only on the basis of discrimination on such grounds but also with regards to the right to religion and religious beliefs because the two do not always sit well together. [4] Generally, however, in the UK issues of discrimination have been largely dealt with under the Sex Discrimination Act (SDA) 1975 (as amended) in matters of direct and indirect discrimination. But, at least until this past decade, it was possible to discriminate in the UK on grounds of religion (until the Employment Equality (Religion or Belief) Regulations 2003 with the definition substituted by section 77 of the Equality Act 2006). There is also now, however, a degree of crossover in the laws that have been recognised as dealing with these areas. For example, age is also to be considered in relation to matters regarding sex in particular in keeping with the decisions in James v. Eastleigh Borough Council [5] and Price v. CSC [6] where either men or women would be recognised to be at a disadvantage.

At the same time, however, in view of the subject matter of this discussion, the law in relation to sex discrimination and, more specifically for this essay, sexual orientation must also be read in accordance with the European Convention on Human Rights (ECHR) 1950 (domestically enacted by the Human Rights Act (HRA) 1998). To this effect, freedom of thought, conscience and religion is protected by Article 9 of the ECHR 1950 that recognises “1. Everyone has the right to freedom of thought, conscience and religion . . . (and) to manifest (this) religion or belief, in worship, teaching, practice and observance”. But it is also important to appreciate that the “2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”. But Article 14 is a non-discrimination measure that provides for “the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Interestingly, however, the ‘other status’ under Article 14 of the Convention has been interpreted, by the European Court of Human Rights to include sexual orientation [7] – although the bulk of sexual orientation cases have been founded on Article 8 of the ECHR 1950 regarding the right to privacy. [8]

Therefore, domestically, it has been recognised that the SDA 1975 (as amended) has been interpreted to include ‘sexuality’ or ‘sexual orientation’ within its remit in relation to any decision that is reached. [9] But with regards to the matter of genuine occupational requirements (GORs) and conflicts that have also arisen in this area with regards to those of religion and the right to religious belief in legislation this allows educational establishments to set conditions with regards to whom they can employ with genuine occupational requirements acting as a defence. Allied to the Employment Equality (Religion or Belief) Regulations 2003, the Employment Equality (Sexual Orientation) Regulations 2003 were enacted but few cases were brought in practice before Employment Tribunals until more recently when a series of cases arose. In particular, the recent decisions in the cases of John Reaney v. Hereford Diocesan Board of Finance [10] and Glasgow City Council v. David McNab [11] have offered some significant clarification on what conditions employers can place on their employees personal lives when it comes to them undertaking a particular job.

To this effect, specific rules serve to govern employment in faith schools under the School Standards & Framework Act 1998 which allows for preference in connection with the appointment, promotion or remuneration of teachers at voluntary aided and independent schools to those whose opinions accord with the school’s religious doctrine, who attend worship in accordance with that doctrine, or are willing to teach religious education in accordance with that doctrine. [12] But, whilst with regards to foundation or voluntary controlled schools the position is the same, the number of teachers appointed thus must be limited to one-fifth and such employers will still have to justify any potentially discriminatory conduct using the defences available under the religion or belief regulations. [13] With this in mind, any employer accused of direct or indirect discrimination in this context may rely upon the defence of it being a GOR as a ‘general GOR’ and the ‘religious organisations GOR’ – although it does not permit discrimination in employment terms or any other detriment including victimisation or harassment. [14]

A ‘general GOR’ can be relied upon with regards to a particular position and not the individual so long as it satisfies the narrow criteria established in the regulations “where, . . . : (a) being of a particular religion or belief is a genuine and determining occupational requirement; (b) it is proportionate to apply that requirement in the particular case; and (c) either the person to whom that requirement is applied does not meet it, or the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it”.

Similarly those organisations founded on a religion or belief can use the ‘religious organisations GOR’ as a defence to discrimination where, as a result, “(a) being of a particular religion or belief is a genuine occupational requirement for the job; (b) it is proportionate to apply that requirement in the particular case; and (c) either (i) the person to whom that requirement is applied does not meet it, or (ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it”. In either case it is then for the employer to prove that such a defence applies by showing their organisation is founded or a religion or belief so that then, with regards to the ‘general GOR’, Employment Tribunals need to objectively assess the qualities that are then required for a particular job.

Moreover, with regards to the ‘religious organisations GOR’, the Employment Appeal Tribunal (EAT) has narrowly interpreted its scope because it was established in the case of Glasgow City Council v. David McNab [15] such a GOR cannot apply to employment in a faith school where the employer is a local authority since it cannot have a religious ethos. It was recognised in the EAT elected to uphold an earlier tribunal decision that an atheist teacher had suffered direct discrimination under the Employment Equality (Religion or Belief) Regulations 2003 when he was refused an interview for a job as principal teacher of pastoral care at a Catholic school. [16] It was determined by the EAT that the tribunal was right to conclude the post was not one that the Roman Catholic Church required a Catholic teacher for and that there was no ‘general GOR’ to this effect or ‘religious organisations GOR’ for employment in religious schools. At the same time, however, the rules associated with the right to religion and religious beliefs and sexual orientation do overlap somewhat. This is because it has been recognised that the sexual orientation regulations (i.e. the Employment Equality (Sexual Orientation) Regulations 2003) allow organised religions opposed to employing people of a certain sexual orientation to rely on a GOR defence in this context. [17] But there is also a need to recognise that such a defence will not commonly apply in practice to a school with a religious ethos since the employees do not actually work for a religion and, even when the employment is for an organised religion, the employer must act reasonably when looking to make its decision on the employment of a particular individual.

Such an understanding of the law’s development in this regard is effectively illustrated by the decision in John Reaney v. Hereford Diocesan Board of Finance. [18] In this case John Reaney applied to be youth officer for the Diocese of Hereford and openly declared his homosexuality on his application form and answered questions with regards to the reconciliation of his sexuality and faith when it came to being able to do the job. The Employment Tribunal held that this was not not unreasonable because where a homosexual wanted to work for the Church of England they had to be prepared to discuss their sexual orientation in the context of the Church’s teachings. But when the Bishop of Hereford opted to not offer Mr Reaney the job (as the preferred candidate), the Employment Tribunal found this was direct sexual orientation discrimination. This is because although the requirement for Mr Reaney to declare a positive choice of celibacy or abstinence was for compliance with the Church of England’s teachings and to avoid conflict with the strongly held religious convictions of its followers, the Employment Tribunal held the Bishop had been unreasonable in refusing employment because the applicant did not meet that requirement.

Generally, it has been recognised that equality in the workplace is fundamental to the concept of ‘decent work’ espoused by the International Labour Organisation and to promote “opportunities for women AND (emphasis added) men to obtain decent and productive work” throughout the EU. [19] But the reality is that, whilst ‘equality’ is more diverse than matters of gender, it “may denote a moral belief, a rationalist perception, an a priori principle, a right, a means to an end or an end in itself”, [20] issues of equality have usually focussed upon disseminating issues of gender in the EU. At the same time, however, there is a need to appreciate the law of discrimination is quite different under Article 14 of the HRA 1998 with a distinction being drawn regarding equality of both a formal and substantive nature. [21] But formal equality has been most clearly articulated since everyone faced with a similar situation should be treated equally as with equal pay under the Equal Pay Act 1970 (amended by the Equal Pay (Amendment) Regulations 1983). There is also a need to understand, however, that equality is a flexible principle applicable to any apparently irrational difference illustrated by the case of Caballero v. Fogasa [22] where the European Court of Justice held there was a breach of equality in the employment relationship where workers were unfairly dismissed and their employer subsequently became insolvent.

It is still to be appreciated, however, that the recognition of the principle of substantive equality’s objective is centred upon endorsing equal opportunities that may demand greater future intervention on the part of the authorities to see that individuals rights are recognised in relation to their employment. [23] On this basis, direct discrimination has been defined by Article 2(2) of Directive 2002/7/EC as being “where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable position”. But although, for example, not all differences in pay are discriminatory in any given case of employment, [24] employers still retain an obligation to make their pay practices transparent and cannot justify differences in practice through reference to performance. Conversely, however, it has been recognised that indirect discrimination refers to those cases that have arisen where men or women are adversely affected in carrying out their roles within the workplace for the purposes of employment. [25]

Previously, however, only Articles 12 (nationality discrimination) and 141 (equal pay for equally work by men and women) of the EC Treaty dealt with discrimination in employment. It has, however, also since been said that Article 13 was “part of a trend which is arguably presently reflected more in rhetoric than in reality: to bring Europe closer to the citizen”. [26] But Article 13 did not impose a direct prohibition on discrimination, but instead empowered the community to take practical action against discrimination “within the limits of (its) powers”. [27] Therefore, it would seem Article 13 of the EC Treaty only provides a legal foundation for measures to combat discrimination where the EU already retains ‘competence’ through legislation and the decisions of the courts such as with employment – although in view of the EU’s widespread powers and broad expression of its objectives such a “limiting clause may not be a particularly serious restraint”. [28] As a result, action under the Article 13 is not limited to the nature and scope of the European Directives that have already been implemented. Such a view is founded on the fact that the EC Treaty provides for the recognition of a common range of instruments including European Community action programmes since, for example, European Council Decision 2001/51/EC created a Programme regarding the European Community framework strategy regarding gender equality.

Additionally, however, the European Commission has pursued a policy of ‘main streaming’. Article 1 of European Council Decision 2000/51, for example, refers to the European Community Programme regarding the EU framework strategy on gender equality to embrace all policies and ensure action is aimed at achieving gender equality whilst also protecting minority groups. [29] For example, in the ECJ case of Sabbatini v. European Parliament the claim of a female employee of the European Parliament’s argument staff regulations was considered contrary to the principle of equality because married men were automatically deemed heads of households. But conversely it is also interesting to consider the case of Grant v. South West Trains [30] regarding a claim for discrimination on sexual orientation. In this case Ms Grant was employed by South West Trains and her employment contract stated she and her ‘spouse and dependants’ could be granted certain travel concessions at the employer’s discretion. Ms Grant applied for travel concessions for her female partner with whom she declared she had had a ‘meaningful relationship’ for over two years, but her employer refused saying the non-married concession only applied to partners of the opposite sex. As a result, Ms Grant argued the refusal constituted discrimination based on sex because her predecessor, a man who had declared a ‘meaningful relationship’ with a woman for over two years, had enjoyed the benefit which had been refused to her. Therefore, it was recognised by the court in this case “Although respect for the fundamental rights … is a condition of the legality of Community acts, those rights cannot in themselves have the effect of extending the scope of the Treaty provisions beyond the competences of the Community”.

At the same time, however, it has been recognised that the Employment Equality (Sexual Orientation) Regulations 2003 apply equally to heterosexual people. Such a view is founded on the case of Mrs E Hegarty v. The Edge (Soho) Ltd [31] where the complainant was ‘made redundant’ from a mainly gay bar. The Employment Tribunal did not, however, accept this was a redundancy. Documentation indicated the directors wanted to ‘freshen’ up the bar where the heterosexual female complainant worked and those subsequently employed were exclusively male and gay. As a result, the Employment Tribunal was satisfied this was a case of unfair dismissal and direct discrimination in the circumstances that was founded upon the complainant’s sex and sexual orientation and the employer failed to prove anything to the contrary leading to an award of compensatory damages. Additionally, however, compensation in sexual orientation cases can be substantial where the employee in a given case is on a significant salary and was also awarded substantial damages for injury to feelings. Then, for example, the case of X v. Y [32] involved an undefended case where the complainant accidentally sent a pornographic text message intended for his male partner to a female colleague. The Employment Tribunal accepted pressure was put upon the complainant to resign by the managing director who had previously made homophobic comments and indicated X would never be believed at a disciplinary hearing and also expressed his surprise X was a ‘pervert’ since it had already made up its mind to dismiss X and an appeal also failed so X was dismissed for his sexual orientation and awarded £39,268.74 including £6000 for injury to feelings.

Nevertheless, the European Commission Framework Strategy of 2005 on non-discrimination & equal opportunities for all [33] has advanced what was previously established in the European Commission’s Green Paper on ‘Equality & non-discrimination for all in an enlarged EU’ [34] to guarantee instances of discrimination in the EU are tackled by promoting equal opportunities for all by ensuring anti-discrimination. But, despite the UK government’s attempts to enact the Equal Treatment Amendment Directive 2002/73/EC (amending the Equal Treatment Directive 76/207/EEC), it was decided in R (on the application of the Equal Opportunities Commission) v. Secretary of State for Trade & Industry [35] the government was ‘guilty’ of breaching the law in keeping with the European Communities Act 1972. This is because, despite the remit of the Employment Equality (Sex Discrimination) Regulations 2005, this enactment was still an inadequate interpretation of the aforementioned Directive since the government had failed to implement requirements regarding – (i) sexual harassment; (b) pregnancy/maternity; and finally (c) the need for no difference with contractual benefits during maternity leave emanating from the Equal Treatment Directive 2002/73/EC.

In an effort to rectify problems in this regard, the Sex Discrimination Act 1975 (Amendment) Regulations 2008 was enacted in an effort to resolve some of the problems because, for example, it could be argued a woman is positively discriminated against. [36] Therefore, this contravened the case of Gillespie v. Northern Health & Social Service Board [37] so it was argued section 6A of the SDA 1975 violated the principle of regression and failed to implement the Equal Treatment Directive’s amendments in 2005 and 2007. [38] UK courts have also sought to take a more proactive approach to other issues of workplace discrimination. For example, in the case of Insitu Cleaning Co Ltd v. Heads [39] a single “Hiya, big tits” was deemed sexual harassment (since furthered by the enactment of the Protection from Harassment Act 1997). On this basis, there is a need for a balance between ‘affirmative action’ and non-discrimination since it was recognised in Kalanke v. Freie Hansestadt Bremen any laws providing for the recognition of automatic preference to women who are as qualified as men violates EU law. This is because, although the Equal Treatment Directive 76/207/EEC allowed for measures use in employment, any rules not allowed could go beyond mere equality. Moreover, the European Commission Framework Strategy of 2005 on non-discrimination and equal opportunities also sought to advance the European Commission’s earlier Green Paper on ‘Equality & non-discrimination for all in an enlarged EU’ to enhance employees rights.

Significantly, however, the UK government is seeking to enact and implement an Equality Bill. [40] This seeks to simplify the current law and serves to supersede a lot of the old laws so employers only now have to refer to one text to make sure they are complying with anti-discrimination legislation with most of it being implemented by this autumn and the rest being implemented in 2011. [41] This is because whilst there had previously been laws against each of the different kinds of discrimination, there were also different agencies entrusted with seeking to protect each of the groups targeted. As a result, where someone was being attacked because they stood out in several different ways, they had to choose what to seek protection for because there was no universal law at this time. With this in mind, the Equality Bill will now allow someone to claim discrimination relating to two ‘protected characteristics’ to cover virtually all potential cases because it is unlikely that someone will discriminate against another individual for more than two reasons. [42] Therefore, where an individual used to be part of an ‘oppressed minority‘, they now have a ‘protected characteristic’ focussed on – (a) age; (b) disability; (c) ‘gender reassignment’; (d) marriage and civil partnership; (e) pregnancy and maternity; (f) race; (g) religion or belief (including lack of belief); (h) sex; and (i) sexual orientation. [43] As has already been recognised, however, the last two ‘protected characteristics’ are understood as being universal in practice because most people are usually either male or female and we all have a sexual orientation and the law is meant to protect men and women, as well as heterosexuals and homosexuals. [44]

At the same time, however, problems have arisen in this area through the actions of the Pope. This is because Pope Benedict XVI made an extraordinary intervention into British politics by urging Catholics to oppose the Equality Bill. [45] To this effect the Pope told a gathering of English and Welsh Catholic bishops in Rome the legislation would “impose unjust limitations on the freedom of religious communities to act in accordance with their beliefs” and added “it actually violates the natural law upon which the equality of all human beings is grounded and by which it is guaranteed”. [46] The reason for such papal opposition is arguably founded upon the fact the Equality Bill aimed to have an impact upon religious organisations employing people in secular jobs by making them subject to the same anti-discrimination laws that apply to other employers. [47] Therefore, in reality, churches are not opposing the Equality Bill as a whole because of the fact that Catholicism teaches that homosexuality is sinful so it would be an attack on their religious beliefs to be compelled to work with people known to be homosexual. [48]

Such a view is then only arguably further supported by the fact that, for example, amongst others, Tory Member of Parliament Detta O’Cathain argued a religion that prohibits gay sex should not have to employ someone openly homosexual any more than a Rape Crisis Centre should be made to employ a male counsellor in looking to assist those who are victims of such a crime. [49] But the reality is, as the Deputy Leader of the Labour Party Harriet Harman recognised, “We have never insisted on non-discrimination legislation applying to religious jobs” only that “when it comes to non-religious jobs, those organisations must comply with the law”. [50] Such a view was then only further supported in the media by journalists including Martin Salter writing for ‘The Telegraph’ who said “What the Bill seeks to ensure is that some 22-year-old applying for a job cleaning the windows of Our Lady of the Visitation Church will not automatically be rejected because he might be a fan of The Village People or, Heaven forefend, an out-and-out gay”. [51]