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PROJECTS AND RESOURCE CENTER
Current LSS Projects
Faith Schools
Religion in the workplace
Sexual orientation and faith based discrimination
Sexual orientation and faith based discrimination
Access to services
Marriage and Civil Partnerships
Faith based arbitration and mediation in the UK
Secular Medicine
Animal welfare and religious privilege
Sexual orientation and faith based discrimination
Sexual orientation and faith based discrimination
1. Legislation:
i. The Employment Equality (Sexual Orientation) Regulations 2003 No. 1661
iii. The Equality Act (Sexual Orientation) Regulations 2007 No. 1263
2. The 2003 Regulations prohibit discrimination on the grounds of sexual orientation in the workplace. If the employer can prove a genuine occupational requirement to employ someone of a particular sexual orientation the employer may justify discrimination on that basis.
3. The Employment Equality (Sexual Orientation) Regulations 2003 contain an exemption from the requirement not to discriminate in favour of Organised Religions. This is a narrow exemption and does not extend to religious organisations such as Catholic adoption agencies or religious private schools. The Regulations were challenged in the case of Amicus MSF Section, R (on the application of) v Secretary of State for Trade and Industry [2004] EWHC 860 (Admin) (26 April 2004). The decision was not appealed. The judgment in the case allows the exemption on the basis that it is narrow. It appears that the Regulations do not correctly implement the Employment Directive 2000/78 but the Regulations have not been tested except in the first instance decision of John George Reaney v Hereford Diocesan Board of Finance ET (Cardiff) April 2007 (unreported) (attach PDF).
4. Faith Schools do not have an exemption from the Employment Equality (Sexual Orientation) Regulations 2003. Sections 58-60 of the School Standards and Framework Act 1998 are exempt from the Employment Equality (Religion or belief) Regulations 2003 and are allowed to discriminate against teachers whose conduct is not in accordance with the ethos of the school. There is an apparent conflict between the Employment Equality (Sexual Orientation) Regulations 2003 and the School Standards and Framework Act 1998. The Employment Directive 2000/78 would have direct effect against state schools. This conflict is as yet untested by the courts.
Access to services
1. Access to services cannot be denied on the ground of sexual orientation as of April 2007 when The Equality Act (Sexual Orientation) Regulations 2007 No. 1263 came into force. Most public authorities will have an equal opportunities policy to help ensure that there is no discrimination against those trying to access services. A local authority’s equalities policy was given consideration in the judgment in the case of Islington v. Ladele [2008] UKEAT 0453_08_1912 (19 December 2008).
2. The Government has been clear that private providers of a public service cannot discriminate on the grounds of sexual orientation and no exemptions from the law will be given. There has been much press coverage of the issue in relation to Catholic adoption agencies. Religious adoption and fostering organisations were given until 31st December 2008 to comply with the Regulations.
3. The difference between organised religions and religious organisations is crucial because only organised religions have exemption from the requirement not to discriminate at law. An organised religion is a body whose purpose is to practice, advance or teach a religion. Any organisation which had a charitable objective such as helping the homeless or providing adoption services is not an organised religion even though it may have a religious ethos.
4. Under Regulation 14 Organised Religions are exempt from the Regulations in relation to the admission of members and the provision of services, facilities, services and the use of their property. The exemption only applies if it is necessary to comply with the doctrine of the organisation or so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers.
5. The Government has a policy of encouraging faith-based welfare and it is likely that this issue will be tested again.
Marriage and Civil Partnerships
6. The Civil Partnership Act 2005 was brought in to provide equal civil rights to same sex partners. There is a perception that the law is insufficient because same sex partners are not accorded the status of marriage. The law was examined in detail in the case of Wilkinson v Kitzinger & Ors [2006] EWHC 2022 (Fam) (31 July 2006). The House of Lords held that the Civil Partnership Act was compatible with the European Convention on Human Rights and the Human Rights Act 1998.
7. There is opposition from religious groups to same sex partners being able to marry due to the religious belief of many that marriage is the union of one man and one woman. The Netherlands, Belgium, and Spain have passed laws providing for same sex marriage. Outside Europe, only Canada, and the US states of Massachusetts and Connecticut and South Africa have given legal recognition to same-sex marriages. California is currently involved in a legal battle over a public vote which went in favour of abolishing same sex marriage which was legalised by Proposition 8.