Formed in 1979 to give a voice to the many non-religious in the lesbian and gay community in the United Kingdom and elsewhere, GALHA promotes a rational humanist approach to homosexuality and lesbian, gay, and bisexual rights as human rights.
GALHA is a national and democratically run membership organisation, and in responding to the present consultation, we draw upon the experience of our members of discrimination they have faced. We also represent their wish to see absolute equality for LGB people in the provision of goods, facilities, and services of all kinds.
We concur entirely with the Government’s consultation document that “in a modern and diverse society, it is not acceptable for someone to be discriminated against because of their sexual orientation,” and we welcome the intention, legislated for in the Equality Act, to prohibit such discrimination.
We strongly believe that the regulations to be made should treat sexual orientation on a par with equality strands such as race, and create prohibitions on discrimination that admit of no exception on the grounds of a discriminator’s motivation.
Therefore, we are disturbed by proposals within the consultation document to exempt some activities of religious groups and of faith schools from the prohibition on discrimination. We strongly object to any such exemptions. Our full response on this issue and on the consultation as a whole is laid out below, by reference to the questions contained in the consultation document.
Q1. Do you agree that the new sexual orientation regulations should apply to goods, facilities and services?
Q2. Should the concept of goods, facilities and services have the same scope as in other equality enactments, in particular Part 2 of the Equality Act 2006?
LGB people face discrimination in many areas of service provision. Homophobic discrimination operates to deny many LGB people a quality of life comparable with that enjoyed by heterosexual people in our society. Access to appropriate medical treatment, access to rented and hotel accommodation, freedom from abuse in a school environment, access to appropriate sex and relationships education in the curriculum: these are just a few of the areas in which inequality exists.
It is essential, therefore, that the sexual orientation regulations engage a variety of activities as broad as that engaged by anti-discrimination legislation in strands such as race and religion or belief.
We urge that the regulations bring sexual orientation up to the level of whichever equality strands enjoy the highest protection in each discrete area that falls under the umbrella term of “goods, facilities, and services”.
Q3. Do you agree that we should provide an exemption from the prohibition on sexual orientation discrimination so that services to meet a specific and justified need can be provided separately to different groups on the basis of their sexual orientation? What specific activities would such an exception need to apply to?
Although the principle of non-discrimination should always be the ultimate goal of legislation, it is the case that some services must continue to be provided in a discriminatory way. Examples of such services are physical and mental health services (such as bereavement counselling) that are specifically targeted at LGB people to meet specific needs.
We support an exemption in the sexual orientation regulations, modelled on that in the Sex Discrimination Act, that will allow such services to be targeted at the specific needs of LGB people.
Q4. Do you agree that premises should be covered by the sexual orientation regulations?
Q5. Do you agree that an exemption should be provided for selling or letting of private dwellings as described in this consultation paper?
The provision of accommodation has often been an area of particular difficulty for LGB people. In a situation, for example, in which two women are seeking to rent a one-bedroom flat, their sexual orientation is being made explicit to a potential landlord, and laying them open to discrimination at a vulnerable time.
We support the inclusion of premises within the scope of the regulations and we believe this must include both the selling and letting of small premises. We realise that some other anti-discrimination law provides an exemption for the letting of small premises but our preference would be for these exemptions too to be replaced with truly anti-discriminatory provisions.
Q6. Do you agree that private members clubs should be included in the sexual orientation regulations?
Q7. What is your view on our proposal that both private members clubs and associations should be permitted to include having a particular sexual orientation as a membership criterion, but only where this criterion is explicitly connected to the purpose for which the club has been established?
We support the proposal that private members’ clubs be included in the scope of the regulations, but support the facility for an exemption in the case of a club that has a legitimate purpose connected with sexual orientation. Nonetheless, we urge that clubs that provide services to people of all sexual orientations not be allowed to discriminate in the way in which they offer such services.
Q8. Do you agree that the new sexual orientation regulations should apply to public functions as well as to goods, facilities and services? Do you think that any specific additional exceptions might be needed from a prohibition on sexual orientation discrimination in the exercise of public functions?
LGB people have suffered, and in some cases continue to suffer, discrimination at the hands of public and official bodies. It is within the lifetime of some of our members that the police persecuted (and the state imprisoned) citizens on the grounds of their sexual orientation.
We welcome, therefore, the proposal that the exercise of public functions be included within the scope of the regulations and although our preference would be to see the total outlawing of discrimination, we are content to see exemptions for public bodies where, and only where, such exemptions exist in other equality law.
Q9. Do you agree that schools should be covered by the sexual orientation regulations?
Q10. Are there any circumstances in which you consider that schools, or a part of the schools sector, should be exempted from the regulations?
Q11. Are there any areas of activity for schools for which you consider special provision needs to be made?
Homophobic bullying in schools has been much in the media and represents a standing shame in the school system which must be addressed by the present regulations. However, it does not represent the totality of discrimination on the grounds of sexual orientation that occurs in schools. In particular, we welcome the Government’s acknowledgement that discrimination can result not just from the actual or presumed sexual orientation of a child, but of its parents, family, or carers.
We believe that regulations should prohibit discrimination at the point of selecting pupils for admission, discrimination in the provision of privileges or opportunities, and discrimination in the application of disciplinary policies: all as the consultation document says.
We also believe that teaching in all schools should be covered by the regulations and that guidance given to maintained schools should make it clear that all children, whatever their developing sexuality, should be treated in a non-discriminatory manner as much by the content of the curriculum as in its delivery.
We note with enormous concern the intimation in the consultation document that the Government will consider exemptions from the law for schools with a religious character on the grounds of their need to preserve their “ethos”. The only conflict between such an “ethos” and the sexual orientation regulations that we can imagine would occur if a part of the ethos in question were to be homophobic in nature. Since it is the purpose of these regulations to challenge the manifestation of homophobia, it is incoherent to suggest that a homophobic ethos should be exempted from the general law.
Exemptions made from anti-discrimination law for the benefit of the religious are not victimless provisions. Not only do they directly disadvantage LGB people, they also represent an affront to those people (religious and non-religious) who do not want to see exemptions from the general law made for people on the grounds of their prejudices, just because their prejudices are endorsed by a religious doctrine.
Homophobia is homophobia, whether motivated by religious beliefs or non-religious ones. Discrimination on the grounds of sexual orientation – the manifestation of homophobia – has the same deleterious effect on its victim whatever its motive. It may be even more harmful in cases of pupils uncertain about their sexual orientation. A child who does not enjoy the full protection of the law because s/he happens to be a pupil at a faith school and not at a community school has been let down.
We strongly urge that no exemptions be made from the regulations as they will apply to schools on the grounds of the prejudice of some religions and some religious people. There should be no exemptions for faith schools, Religious Education, or any other activity related to religion or belief in independent or maintained schools.
Q12. Do you consider that an exemption should be provided from the regulations for some of the activities of religious organisations?
Q13. Do you agree that these exemptions should be restricted to activities that are primarily doctrinal? If there are any other activities that you consider should be covered by an exemption, what are they and why do you consider they need to be exempted?
If the Government is serious about universal human rights, and about outlawing discrimination on the grounds of sexual orientation, then the notion of exemptions for religious groups, on whatever grounds, cannot be entertained.
To plan, as the Government is planning, to exempt some sections of the community from the duty not to discriminate on the grounds that their “doctrine” impels them to discriminate is to make a nonsense of the proposed law. If we believe that to discriminate should be unlawful, then it should be unlawful no matter what the motivation of the one who is discriminating, religious or not.
We accept and support the fact that it is not the Government’s intention to allow religious groups to discriminate against people on the grounds of sexual orientation where a religious group is providing a public or a commercial service, but we think that any exemption of any sort for religious groups would in fact just cloud the issue.
Such exemptions will make bad law – they can never satisfy objective tests, since “doctrine”, for many religions, is as much a matter of interpretation as of text. How will a court determine what is really based on “doctrine” and what is not without effectively placing the interpretation of the law not in the hands of judges but in the hands of religious “authorities”? It would therefore be an open gate to avoid the provisions.
We strongly oppose and condemn any exemptions from the regulations for the activities of any religious group. If there are religions and denominations which condemn same-sex orientations to the extent that they wish to exclude them from their ceremonies, or keep them outside of their provision of services in some other way, on the grounds that they cannot be both LGB and belong to the religion in question, then let these religions rely on the exemptions they have from Part 2 of the Equality Act to justify their discrimination.
Q14. Do you agree that an exception should be provided for charities that provide services specifically to people because of/according to their sexual orientation?
We agree that an exception should be provided for charities that provide services specifically to people because of/according to their sexual orientation.
Q15. Do you agree that the sexual orientation regulations should include direct and indirect discrimination as well as victimisation? Are there any particular considerations or situations that should be taken into account in how such provisions are drafted?
We agree that the regulations should prohibit indirect discrimination, direct discrimination, and victimisation.
Q16. Do you agree that discriminatory practice should be included in the scope of the sexual orientation regulations?
Q17. Do you agree that discriminatory advertising should be included in the scope of the sexual orientation regulations?
Q18. Do you agree that instructions to discriminate should be covered by the sexual orientation regulations?
Q19. Do you agree that validity of contracts should be covered by the sexual orientation regulations?
We agree that discriminatory practice, discriminatory advertising, instructions to discriminate and validity of contracts should be included in the scope of the sexual orientation regulations.
Q20. Do you agree that the enforcement provisions for the sexual orientation regulations should match those for the other equality enactments?
We agree that the enforcement provisions for the sexual orientation regulations should match those for the other equality enactments.
Q21. Do you have any comments on the Government’s plans for how the sexual orientation regulations will be enforced and supported by the CEHR?
We endorse the Government’s plans for how the sexual orientation regulations will be enforced and supported by the CEHR.