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Lawyers Christian Fellowship submission on the Proposals to outlaw Sexual Orientation Discrimination

General analysis of the basis and approach of the Regulations

Anti-discrimination legislation

The Bible teaches that all people are created equally in the image of God and all are loved by God, Genesis 1 and John 3:16. The corollary is that as Christians, we support the outlawing of unjustified discrimination, and therefore support the Government in their implementation of anti-discrimination legislation regarding race, sex and disability. Such legislation has been a helpful tool in seeking to redress injustice in the treatment of different (often marginalised) people in society.

In the consultation it is stated that

‘By introducing these regulations, we will be treating sexual orientation discrimination with the same seriousness afforded to discrimination on the grounds of disability, sex, race and religion or belief’.

We are of the view that it is a mistake to approach the issues of religion (and belief) and sexual orientation, as directly comparable to race, sex and disability. While race and sex are fundamental to a person, unalterable, and incontrovertibly fixed at birth (disability can be fixed at birth or at a later stage), religion and sexual orientation are not of the same nature. People cannot by their volition change their race or their sex or their disability, but they can (and do) change their religion or their sexual orientation.

The corollary of our view that it is wrong to treat sexual orientation as equivalent to sex, race and disability, is that it is a mistake to use legislation to try and regulate and control attitudes towards sexual orientation. In our opinion, society ought to be left to draw its own conclusions about sexual orientation, just as it has in past centuries. Whether or not one agrees with other people’s views on sexual orientation, there has always been a freedom to hold, put forward, discuss and debate any personal view about sexual orientation. This is a facet of our highly prized freedom of thought, freedom of conscience, and freedom of expression. The problem is that the Regulations may allow someone to express a view about sexual orientation, but may equally deny them the right to live according to that view. This strips the value away from the right to freedom of expression. Only where there is a compelling justification should the state take away a person’s freedom to act in accordance with their beliefs.

Because of our opinion that sexual orientation is dissimilar to sex, race and disability, it is also our opinion that there is no compelling justification for removing from society the freedom to act according to their views on sexual orientation (subject to what we say below). For the Government to try and regulate and control people’s attitudes to sexual orientation by seeking to eliminate discrimination in the way people behave indicates, in our view, an illegitimate attempt to ‘nationalise’ a private moral issue.

Conclusion: We recognise and support the Government’s desire to eliminate inequalities in society and to eradicate unjustified discrimination. We think there are fundamental differences between sex, race and disability on the one hand, and sexual orientation and religion or belief on the other. Therefore we do not think that legislation should be used to try and regulate or control people’s personal views and actions on matters such as religion or sexual orientation.

Accuracy in defining ‘sexual orientation’ discrimination

We are concerned that the approach taken by the draft Regulations is not focussed precisely enough on the type of discrimination which the Government seeks to eradicate, and therefore the scope of the Regulations will inadvertently criminalise the expression of legitimate views on homosexuality.

Although it is not stated expressly, the tenor of the examples of discrimination given in the consultation indicate that the mischief which the Government is seeking to deal with through these Regulations might be better described as discrimination on the grounds of homophobia, rather than on the grounds of sexual orientation. Homophobia can be defined as an irrational prejudice against a person based on a dislike of their homosexual behaviour or their sexual orientation towards people of the same sex. Our conclusion that this is the sort of behaviour that the Government want to eradicate is supported by the statement on the Women and Equality Unit website which says:

‘In December 2003, the Employment Directive, which outlawed discrimination and harassment in the workplace on the grounds of sexual orienatation, came into force. The new law means that it will be unlawful to deny lesbian, gay and bisexual people jobs because of prejudice’

Entirely distinct from irrational (homophobic) prejudice against homosexuals, is the Christian teaching, first codified around 3300 years ago, that homosexuality is sinful and not a right way for people to live their lives. This Biblical doctrine has been followed by millions of believers across the centuries. It is not an irrational homophobic prejudice, it is a conviction, based on a belief that the Bible is the word of God, that in accordance with clear Biblical doctrine, homosexual conduct is sinful and wrong. Consequently our response to the draft Regulations is founded on the Bible’s teaching (see further, below).

The examples of discrimination given in the Consultation are not examples of this latter doctrinal Christian view that homosexual practice is not equal to heterosexual married practice, they are examples of unjustified prejudice towards homosexuals by people who have an irrational dislike of those who are attracted to people of the same sex. Because of the failure to distinguish between these two foundations for discriminating on the grounds of sexual orientation (homophobia or Biblical doctrine) the Regulations currently make it illegal to discriminate on either ground in relation to the provision of goods, services and facilities etc.

Conclusion: We think the Government need to draw a firm distinction between discrimination on the grounds of homophobic prejudice and discrimination on the grounds of a longstanding religious doctrinal view that homosexual conduct is wrong.

The problem can be addressed either a) by defining discrimination ‘on the grounds of sexual orientation’ as relating only to homophobic discrimination (in the way we have defined it, above) or b) by providing sufficient exceptions to the general prohibition to protect religious doctrinal reasons for any discrimination. We make further suggestions relating to such exceptions below.

Understanding Biblical teaching on sexual orientation

We are concerned that the approach taken by the draft Regulations is discloses a failure to fully understand Biblical doctrine relating to the issue of sexual orientation.

The Bible teaches that Christians (and indeed all people) should love a person irrespective of sexual orientation. Sexual orientation being defined as an attraction to someone of the opposite sex, someone of the same sex, or people of both sexes. A homosexual orientation per se is, according to the Bible, not wrong. Everyone undergoes temptation and temptation to do something is not in itself sinful. Therefore, we would endorse and support the Government’s attempt to eradicate discrimination on the grounds of sexual orientation per se in much the same way as we support their desire to eliminate homophobic discrimination.

However, the Bible is clear that to act on a homosexual attraction and to practice homosexuality is sinful and wrong. The distinction may appear semantic, but in fact it is of great importance. People who discriminate based on sexual orientation are discriminating on a personal basis – because someone is attracted to people of the same sex. On the other hand, Christians following the Bible have no desire to discriminate against that person at all, but in order to obey the Bible, Christians must discriminate against that person’s conduct. Of course, discriminating on the grounds of a person’s conduct will often result in indirectly discriminating against the person themselves, but the difference in intent and emphasis is key.

Again, we are of the view that the discrimination which the Government seeks to eradicate is the unjustifiable discrimination against a person based purely on their orientation, it is not the discrimination of a Christian who discriminates because the Bible teaches that homosexual conduct is not equal to heterosexual conduct in the context of marriage.

Because of the failure to distinguish between discrimination on the grounds of sexual orientation and on the grounds of sexual practice, the Regulations currently make both unlawful. The onus is on the Government not to draft a law which inadvertently renders illegal a justified doctrinal view, however hard it is to frame that law to capture only unjustified discrimination. If anything, we think this difficulty further illustrates our view that this issue is not well suited to legislative intervention.

Conclusion: We think that the Regulations needed to be drafted in light of an understanding of the difference between i) discriminating against a person based on their sexual orientation and ii) discriminating between certain types of sexual conduct (and therefore indirectly discriminating against a person). Only the former discrimination should be unlawful.

Again, this issue could be addressed either a) by defining discrimination ‘on the grounds of sexual orientation’ as relating only to sexual orientation discrimination (in the way we have defined it, above) rather than discrimination on the grounds of sexual practice or conduct, or b) by providing sufficient exceptions to the general prohibition to protect religious doctrinal reason for any discrimination. We make further suggestions relating to such exceptions below.

Legal difficulties with the Regulations

Striking the balance between religious freedom and equality

The consultation states

‘The Government’s vision is for a fair society founded on equal opportunities for all, respect for the dignity and worth of each person and mutual respect between communities’.

It is the view of the Lawyers’ Christian Fellowship that the draft Regulations in their current form fall far short of showing mutual respect for the Christian community – a community which according to some polls covers over 70% of the British population. The examples given below will demonstrate how the current proposals would force thousands of Christians to act in a manner which is contrary to Biblical teaching and against their own consciences. We have no doubt that this was not the intention or desire of the Government, but if unamended, it is clear that the Government will not have shown due respect for the passionately and inveterately held views of millions of Christians.

Further evidence supporting this is the fact that if the Regulations go forward unamended, they will inevitably require discrimination against Christians.

Example 1: an advertising company when interviewing for a new post will have to start asking all interviewees ‘would you refuse to advertise an event that encouraged homosexual practice’. A Christian who answered ‘yes, I would refuse’ would not be given the job because the employer would understandably not want to risk taking on someone whose views might place the employer in breach of the law in the future. Therefore the Christian would effectively be being discriminated against on the ground of their religion.

Example 2: any Christian teacher working in a state school would be liable to be sacked if they refused to teach the equivalence of homosexuality to heterosexuality because this would place the school in breach of the Regulations. In the future the school would be more wary about recruiting Christians because of their religious views that homosexual practice is sinful, and so would discriminate on the grounds of religion.

We think that the Government’s approach may well breach Article 9 of the European Convention on Human Rights (ECHR) (as incorporated by the Human Rights Act (HRA) 1998), and would therefore be vulnerable to a declaration of incompatibility. Art 9 states

1. Everyone has the right to freedom of thought, conscience and religion, this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

The ‘Examples of how the Regulations will force Christians to act in contravention of Biblical doctrine’ section (below) illustrates that the freedom of practice and observance is seriously contravened by the Regulations. The conclusion that the Regulations breach British law regarding religious freedom is highlighted by section 13 of the Human Rights Act 1998 which states:

(1) If a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.

It is our view that to comply with the ECHR and HRA, there must be express protection allowing people to discriminate on the grounds of sexual orientation if it is genuinely on the grounds of a religious belief or doctrine.

Art 9 of the ECHR clearly points to the need for a balance to be struck between religious freedom and equality on the grounds of sexual orientation. Art 9(2) states:

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitation 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.

The Regulations provide no freedom of conscience clause, no exemption for religious bodies or organisations, and no exemption for individuals who adhere to a religious doctrinal view about homosexuality. Unless they include substantial protection for Christians both corporately and individually, it is our considered opinion that they will be in breach of British and European law by failing to provide for a balance to be struck between freedom of religion and the rights and freedoms of others (including homosexuals).

In the consultation it is outlined that

‘Gay men, lesbians and bisexual people should have the same basic rights and freedoms as heterosexual people’.

Again, we stress that we support the Government’s premise that a person’s sexual orientation per se should not in any way affect their access to ‘basic rights and freedoms’– homosexuals should of course have same right to a fair trial, freedom of expression and assembly, freedom from inhuman and degrading treatment etc. However, the combination of article 14 ECHR with the other substantive articles means there is no question this is already achieved. In fact, what the Government are proposing with these Regulations, is to go much further and give people of different sexual orientations a right to complete equality in the provision of goods, services, facilities, education and public functions – these things are not all generally described as ‘basic rights and freedoms’.

The fact these Regulations go beyond basic rights and freedoms compounds the difficulties we have already outlined relating to the failure to define ‘sexual orientation’ and ‘discrimination’ accurately (in the sense explained above). The result is that in our view, where the freedom from discrimination for homosexuals in relation to the provision of goods and services conflicts with the fundamental basic right and freedom of Christians to religious liberty and freedom of conscience, the fundamental right to religious liberty must be protected by British law. The current proposals do not offer such protection.

Conclusion: In order to comply with the ECHR and HRA, very substantial amendments will have to be made to the current draft of the Regulations. Firstly there needs to be some mechanism by which the homosexual right to equality created by the Regulations can be balanced against the right to religious freedom. Secondly that mechanism needs to provide that where the two conflict, the more fundamental right (religious liberty) trumps the lesser. Suggestions are made (below) regarding such a mechanism.

The impact on freedom of speech

Freedom of speech is guaranteed under article 10 of the ECHR which says

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and
regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

This provision is, in our opinion, clearly breached by the Regulation provisions which deal with education, and possibly also in relation to services and public functions. Prima facie the Regulations make it illegal to discriminate on the grounds of sexual orientation in the content of the education given in both secular and faith schools. For example, to teach that homosexual practice was wrong and not equivalent to heterosexual practice within marriage would clearly count as discrimination against any homosexual students – it is undoubtedly ‘less favourable treatment’ which is ‘on the grounds of sexual orientation’. The syllogistic conclusion is therefore that under the draft Regulations as they stand, it would be illegal to express the view in schools that homosexual practice is not equivalent to heterosexual practice within marriage. This breaches the ECHR and the onus is therefore on the Government to justify why, under art 10(2), such a curtailing of freedom of speech is necessary. In fact, it is our view that there is no justification for such an extensive breach of art 10.

Conclusion: The current proposed Regulations breach article 10 of the European Convention on Human Rights by dramatically restricting the freedom for those in educational establishments to express the view that homosexual practice is not equivalent to heterosexual practice within the context of marriage.
Again, our proposals (below) suggest methods which would address this legal difficulty.

Commission for Equality and Human Rights

The Government may want to consider that by failing to draw up the Regulations in a way which strikes a balance between human rights (i.e. religious freedom) and equality (on the grounds of sexual orientation) they will be placing the new Commission for Equality and Human Rights in an impossible position. That public body, charged with helping to implement both human rights and equality enactments, will find itself forced to choose between these two aims. At the very least the Commission needs to be provided with a legal framework which allows it to balance religious freedoms and sexual orientation equality, both of which it is under a public duty to promote. If the Regulations do not give the Commission power to balance these rights, the Commission will be required to enforce laws which will be likely to anger and alienate a large section of society: those who hold religious views regarding homosexuality.

The aforementioned problems which would make it impossible for the Commission to pay due attention to art 10 ECHR, also mean that the current Regulations may make it impossible for the Commission to carry out the duties placed on it by section 9 of the Equality Act. Section 9 states:

(1) The Commission shall, by exercising the powers conferred by this Part-
(a) promote understanding of the importance of human rights,
(b) encourage good practice in relation to human rights,
(c) promote awareness, understanding and protection of human rights, and
(d) encourage public authorities to comply with section 6 of the Human Rights Act 1998 (c. 42) (compliance with Convention rights).

(2) In this Part “human rights” means-
(a) the Convention rights within the meaning given by section 1 of the Human Rights Act 1998, and
(b) other human rights.
Conclusion: If unresolved, the legal issues regarding freedom of religion and freedom of speech would significantly hamper the new Commission for Equality and Human Rights. It will make it hard for that body to maintain public confidence and will make it almost impossible for the body to uphold both human rights and equality at the same time, therefore making it equally difficult to fulfil the duties placed on it by the Equality Act.

The impact of the Regulations on Christians individually and corporately

Christianity public or private beliefs?

The previous paragraphs have highlighted that the current proposals for the Regulations cover and render illegal discrimination even if it derives from a genuine expression of Christian doctrine about homosexual practice. On an initial reading, it might seem that a Christian who believes in the Bible need simply be given the freedom of conscience to believe homosexual practice is wrong and be given freedom of speech to express that view to others. However, it is of course trite to point out that almost all religions, and certainly Christianity, demand the devotion not just of the follower’s mind and lips, but also, critically, of their actions. There is no value to declaring that homosexual practice is sinful and wrong if your actions then run completely contrary to that view.

Example 1: It is worthless for a Christian to say that they believe in the Bible’s teaching that homosexual practice is wrong, if the Christian business that person runs supports a pro-homosexual group by providing goods or services to them.

Example 2: It is worthless for a vicar to say that they follow the Bible’s teaching that homosexual practice is wrong, if the Church they are in charge of provides communion to practicing homosexual civil partners as though there is nothing wrong with this.

By definition Christianity is not a purely personal faith or private set of beliefs: Jesus’ command to all Christians is to go to ‘all nations … teaching them to obey everything I have commanded you’ (Matthew 28:19-20). This requires more than mere words. Christians are charged to live with integrity (Titus 2:6-8), which means not just professing the Bible’s teachings, but also acting in accordance with them. It would be anathema to Christianity to allow Christians to profess Biblical teaching but to force Christians to act inconsistently with that teaching. Firstly then, any law which does not provide freedom for Christians to discriminate on the grounds of the Bible’s teaching about homosexuality, denies every single Christian the freedom to live with integrity.

Extent of the Regulations’ impact on Christian believers

It is paramount that the Government recognise that this legislation does impact on every single Christian who adheres to Biblical teaching about homosexual practice. Christians as individuals have no right to pick and choose which parts of the Bible they live by and adhere to, and therefore demanding Christians to go against any part of the Bible is contrary to Christianity itself. The whole of the Bible is the word of God and to enshrine in law a requirement to go against those words taints and compromises the whole of a person’s freedom to be a Christian.

Secondly, we think the current Regulations will in fact bring the Biblical adherence of thousands of Christians each year into direct conflict with British law. There are myriad scenarios in which the Regulations in their current form would force Christians to directly or indirectly endorse, encourage or enable homosexual practice to be continued, and would therefore force Christians to act contrary to the Bible’s teaching. The examples given below illustrate just some of the factual scenarios in which the Regulations, if passed unamended, will bring a belief in the Bible into conflict with British law.

Conclusion: We think that it is crucial that the Government recognise that to deny Christians the freedom to act in accordance with a Biblical view of homosexual practice, is to deny them the freedom to live with integrity according to the Bible. Freedom to express the view that homosexual practice is wrong is worthless without freedom to act consistently with this declaration. We think it is important that the Government are aware therefore that these Regulations will affect all Christians, both in principle, and in practice.

The following are just a sample of many possible examples of how the Regulations in their current proposed form would force Christians to chose between acting in accordance with the Bible, and acting in accordance with British law.

Examples of how the Regulations will force Christians to act in contravention of Biblical doctrine

Premises

It would be illegal for Christian run hotels, bed and breakfasts, sheltered accommodation or community housing projects to refuse a homosexual couple a room with a double-bed (or any similar arrangement) if the refusal was based on the fact the couple were practicing homosexuals.

Even if the hotel etc. refused un-married heterosexual couples a room with a double-bed, there would still be a real danger of prosecution if they also turned away gay lovers: it is not hard to anticipate that either those gay lovers or a court might struggle to accept that the hotel was discriminating not on the grounds of sexual orientation, but on the ground of the Bible’s teaching that it is wrong to have homosexual or heterosexual sex outside marriage.

On top of this, it would be illegal in any case for the hotel etc. to refuse to let such a room to a gay couple who had a registered civil partnership, because the Regulations treat such a partnership as equal to a heterosexual marriage. There is no doubt that being forced to let a room with a double bed to homosexual lovers would be to force the owner / staff of the premises to facilitate homosexual conduct and would go directly against the Bible’s teaching.

It would be illegal for Christian housing or accommodation providers to prioritise provision of accommodation to married heterosexual couples over homosexual couples, even if the providers had genuine and logical reasons for such prioritising. For example, the accommodation providers might have a concern (based on evidence) that the homosexual couple would encourage other vulnerable (adult) tenants to engage in homosexual practice.

For a Christian housing provider to be forced by the Regulations to prioritise a homosexual prospective tenant whom they had reason to believe would lead others into homosexual practice, would be to force them to act against Biblical teaching by facilitating and enabling homosexual practice.

It could also, depending on the circumstances, be illegal for a Christian hostel etc, to try and evict a resident who had not initially declared their sexuality but who then sought to seduce or have a relationship with another adult of the same sex in that hostel. Biblical teaching about the sinfulness of homosexual practice would make it incumbent on the Christian running the hostel not to tolerate such homosexual practice within their institution and so in this example the Regulations would again conflict with the Bible.

Christian conference and retreat centres would have no option but to accept bookings and hirings from practising gay and lesbian groups. Whether homosexual groups booked out the whole of such venues, or sought to book to coincide with Christian groups, this could quite possibly cause disruption and difficulty. There would be a danger of antagonism and upset which would detract from the focus of the Christian conference or retreat, but the Christian conference or retreat centre would not have the freedom to turn away the homosexual groups, even if they had a reasonable belief those groups were booking in order to cause trouble, because of fear of prosecution under the Regulations.

Any Christian organisation which hires out any part of their buildings to third parties would not be allowed, in law, to refuse to hire them out to a gay or lesbian group if the court viewed the reason for the refusal to be solely or principally on the grounds of their sexual orientation. This would apply even if the homosexual group wanted to use the premises to publicise and promote homosexual practice. The most obvious example where this could cause a problem is in the hiring out of church halls. There are thousands of these across the country which are used to facilitate many excellent groups and activities in the local community. To force a church, of all places, to offer premises which might enable and facilitate homosexual practice, goes against all religious freedom to act according to the Bible.

It seems that according to the Regulations churches who use their premises for (heterosexual) weddings (this would also fall under the ‘provision of a service’ head as well) would be required to accept civil partnership ceremonies on their premises – to refuse to do so on the grounds of the sexual orientation of the couple seeking to book the venue would be unlawful. Further, because the consultation makes it explicit that any discrimination between married heterosexuals and those with Civil Partnerships will be direct discrimination, it would clearly be illegal for a church to refuse to be a venue for a reaffirmation of civil partnership ‘vows’ whilst allowing reaffirmation of marriage vows.
Advertising etc

Christian printers and publishers would legally be unable to refuse to print gay event fliers or pamphlets or books promoting homosexual practices.

A Christian marketing company would break the law if they refused to promote a pro-homosexuality group because of the group’s encouragement of homosexuality as an acceptable way of life.

Christian newspapers, television, radio and other media or press would be required to accept adverts from so-called ‘Christian’ homosexual groups, even though it is clear from the Bible that it is wrong to live as a practicing homosexual.

Any Christian business or company who accept sponsorship or advertising on merchandise, in their company literature or through any other media would be under a legal obligation not to discriminate on the grounds of sexual orientation, and if a homosexual group made the ‘best offer’, the Christian business would be forced to accept the logos or names of the homosexual group to be displayed on their merchandise etc. In this way again the Regulations would be forcing people who have firm doctrinal beliefs that homosexuality is wrong to actively promote homosexuality.

Services (general)

It is clear from the consultation and the other Equality Enactments that churches count as service providers. As the proposed Regulations currently stand, baptisms, dedications, christenings and confirmations that take place in a church would all count as ‘services’ – they are services which offer a benefit to the ‘general public’ and which cannot be accessed other than through a church. The Regulations could cause a number of problems in this regard. One can envisage a vicar having difficulties of conscience and doctrine in allowing the gay parents of an adopted child (gay adoption being lawful under the Adoption Act 2002) to declare in a christening service that they ‘renounce evil and sin’, and promise to bring their child up according to God’s rules and principles (this is in the liturgy of the christening service in the Church of England), whilst they clearly and manifestly do not renounce their homosexual relationship. However, the Regulations currently make it unlawful to refuse to christen based on the sexual orientation of the parents.

It is clear that the Regulations as they currently stand will make it illegal for every single Christian vicar, minister and pastor in Great Britain to act in accordance with the Bible.

Further, holy communion would count as a service according to the definition of a service given by the consultation, and a vicar would thus be breaking the law if he were to refuse to administer communion to a self-confessed practising and unrepentant homosexual who had a registered civil partnership, if the refusal was based on that person’s sexual orientation.
Any large churches who provide auxiliary services to the community such as restaurants, libraries, bookshops, counselling etc would be at risk of costly allegations of discrimination (costly in terms of legal fees and adverse publicity) if they sought to restrict the access of certain homosexual individuals to those services, even if they only sought to restrict them because the individuals concerned were known to be seeking to cause trouble.

The Regulations could become a weapon in the hands of mischief makers who wanted to disrupt and cause trouble for churches and other religious bodies.
Youth clubs are well-known for the relationships which they spark between young couples, and such heterosexual relationships, conducted in the right way, are an important part of learning how to become mature and caring adults. If such a Christian youth club allowed (in theory or in practice) young heterosexual couples to show appropriate levels of public affection (such as holding hands), it would be illegal for them to seek to prohibit young couples who claim they are homosexual, from doing the same thing. It would be illegal even if the youth club leaders had the best of Biblically driven motivations, for example, hoping to dissuade the teenagers in their care from adopting a mindset that homosexual relationships are a normal or acceptable way of living.
Churches that run mother and toddler groups could be forced to allow homosexual parents to attend even if the member of the church running the group thought that it could have a confusing and detrimental affect on the other children, for example, because the children were subjected to displays of physical affection by the same sex couple. It is important to understand in all the cases that it will be very rare that a church wants to exclude homosexuals from the service it offers – in most cases churches would be delighted to show the same love and care for homosexuals as for heterosexuals. However, this does not affect the underlying requirement that churches retain the freedom to discriminate on the grounds of sexual orientation, on the rare occasions that this is necessary in order to comply with the teaching of the Bible.

One of the principal dangers of the Regulations is that they will become a legal weapon in the hands of those who wish to cause mischief. Of course, most homosexuals will have no interest in causing difficulty for religious organisations, and will continue to live peacefully and tolerantly side by side with others who do not agree with their way of life. Unfortunately, this will not be the case for some others in the homosexual community who might launch vexatious cases against Christian organisations, or churches, alleging sexual orientation discrimination. This would be costly (both in terms of time, money, and adverse publicity) to Christian organisations or churches. It may be that the Regulations could be used as a tool to blackmail Christian organisations: ‘if you don’t do X, I will launch a spurious legal action against you alleging discrimination’.

Services (using public / local authority funding)

Any Christian charity or organisation that used public money to rebuild/extend premises or provide a service will come under a legal requirement that in the use of those premises and services they do not discriminate on the grounds of sexual orientation. There is already significant pressure on many Christian groups and organisations who have received crucial local authority funding (possibly including lottery funding) to allow all local groups to have access to their new facilities. There is a big danger that Christian organisations will have their freedom to decide who to support and provide services and goods to curtailed to an even greater extent and will therefore be forced to act contrary to Biblical doctrines.

Registrars perform a public function in registering a marriage, and the duty imposed by the Regulations on those who perform public functions would appear to place a registrar under a duty to register civil partnership as well as marriage certificates.
Goods

Money is, of course, a good, and any Christian charity or organisation that provided financial awards, bursaries or support might be acting illegally if it provided them only to heterosexual individuals or if it favoured heterosexual applicants for their funds over homosexual applicants, even if the latter stated the use for the money involved furthering their homosexual practices (such as paying for accommodation with a homosexual partner).

Similarly, the act that money is a ‘good’ means that how a church decides to give the money collected from parishioners (the tithes) would be subject to the Regulations. Consequently, it might be unlawful for a church, in deciding how it used its collection money, to refuse to support a homosexual charity based on the sexual orientation of the members or beneficiaries of that charity, even if the charity sought to promote homosexual practice.
Education

Under the Regulations as they stand, a school (whether a faith school or otherwise) would be unable to discipline or exclude a child because that child was seeking to encourage others to practice homosexuality or advocating that they experiment with homosexuality.
A school will be unable to lawfully criticise homosexual practise and way of life compared to heterosexual practise and way of life. In a sense, a teacher will be under a legal duty to proffer homosexuality as an acceptable and equal alternative to heterosexuality. Not to do so would discriminate because it would put off some homosexuals from attending in the first place, plus it might ‘disadvantage’ homosexuals studying at the institution at the time. For a Christian teacher in a state school, or for any teacher in a faith school, this would be complete anathema to their belief in the truth of the Bible’s teaching.

If a school criticised or disciplined a homosexual student, even if it criticised them or disciplined them on a ground wholly unrelated to their sexuality, the Regulations would make it likely the school would be accused of discrimination on the grounds of sexual orientation. There have been a number of cases already in this country where students have made spurious allegations that a school is discriminating against them because they are gay. To give such students a legal weapon to cause further mischief, is of great concern.
The school’s curriculum would have to comply with the new law and a homosexual parent on the PTA or board of governors could demand that there should be lessons promoting gay issues (for example by taking part in the recent LGBT (Lesbian Bi-sexual Gay and Transsexual) History Month).

Schools (including faith schools) might also come under an indirect requirement to allow equal access to a homosexual ‘preacher’ as to a Christian preacher to conduct assemblies and give talks in ‘Personal Social and Religious Education’ classes.
Miscellaneous

Any membership organisation that required the signing of a statement of faith or belief or adherence to the view of the Bible would be indirectly discriminating against homosexuals and this would therefore probably be illegal. It would be discriminatory because it would put off homosexuals from joining, based on the fact proportionally more homosexuals than heterosexuals will be unable to agree with all parts of the Bible (the Bible condemns homosexual practice per se whilst only condemning heterosexual practice if it is outside the context of marriage). A Christian organisation that was taken to court for this would then have the absurd requirement of needing to argue that requiring a statement of faith was justified.

An even more widespread problem is seen from the fact that the Regulations would make it prima facie illegal even for a church to apply a requirement to sign a ‘statement of faith’ in order to become a member, based on the above logic.

Conclusion: We are concerned that the Government has dramatically underestimated the practical and far reaching impact of these Regulations into almost every sphere of life in which Christians operate. We would therefore urge them to consider the need for a re-think about the scope and application of the draft Regulations.

Regulatory Impact Assessment

Weaknesses of the Regulatory Impact Assessment

After close scrutiny of the Regulatory Impact Assessment (RIA) which is annexed to the consultation document, the Lawyers’ Christian Fellowship are concerned that there is a paucity of evidence and research to support the assertions made within that RIA. It is submitted that this may be partially responsible for some of the failure to recognise the extent of the impact of these Regulations. We therefore ask the Government to reconsider the following statements.

Basic need for Regulations

Firstly, although it is not technically part of the RIA, we feel it is incumbent on us to draw attention to the following assertion made at paragraph 2.3 of the consultation:

‘However there is clear evidence that LGB people are still facing unacceptable discrimination – whether deliberate or inadvertent – in their everyday lives. There have been several accounts in our national newspapers of same-sex couples being turned away from hotels, bed and breakfasts or by tour operators, or who are refused shared accommodation when they request it. In the past year, some lesbians and gay men have been refused access to basic healthcare. In addition to straightforward discrimination, LGB people are often subjected to hostility and abuse in many areas of their everyday lives.’

We would like to know what the ‘clear evidence’ of such discrimination against homosexuals is, and where it comes from. We assume that it is not purely based on sensational accounts in national newspapers. Anecdotal evidence unsupported by specific referenced examples is no basis upon which to draft discrimination Regulations.

Impact on health

The RIA states

‘We [the Government] expect there to be a positive impact [from the Regulations] on health and an improvement in the level of healthcare and uptake of health services by lesbians, gay men and bisexual people.’.

It is our view that it is not an obvious corollary that facilitating and supporting an acceptance of homosexual practice and thereby presumably increasing the number of practicing homosexuals in this country will have a positive impact on health. In relation to sexual health issues it seems to us that in fact such an encouragement of homosexual practice will have the opposite effect. Firstly, based on the Bible’s teaching, Christians would always expound the logical view that dissuading heterosexual sexual promiscuity (by dissuading sexual practices outside heterosexual marriage) would reduce the transmission of sexually transmitted infections. Such infections are a major problem impacting on the nation’s health, and they continue to promote a great deal of concern in the healthcare sector. Equally, Christians believe that dissuading homosexual sexual practice and lifestyle would help reduce the transmission of sexually transmitted infections. Further, there are specific healthcare issues (such as Hepatitis B) which are more prevalent in the homosexual community, and this further supports our challenge to the assumption in the RIA that the Regulations will have a positive impact on health. Christians would support an approach to sexual health which dealt with the root of the problems of sexual promiscuity and homosexual sexual relations, rather than trying to deal only with the symptoms.

Impact on the economy

The RIA states
‘[the Regulations will have] economic benefits… making discrimination on the grounds of sexual orientation unlawful in the provision of services is likely to bring financial benefits to the wider business community as greater numbers of lesbians, gay men and bisexual people take up a wider range of services across the country… Markets will open up as market segmentation diminishes and barriers fall away. Although it is difficult to quantify many of the benefits of this legislation, in promoting business with a significant proportion of the population, with above-average incomes means that in some sectors (notably the hospitality and leisure sectors) the effect could be significant.’

On the face of it, this assertion by the Government is unconvincing and lacks any forensic supporting evidence. The corollary of freeing up the market to provide for homosexuals as well as heterosexuals would in fact be that prices of such services would come down. Therefore, although homosexuals would benefit from cheaper goods and services, no additional money would go into the economy, and in fact less money would be injected into the goods and services sector.

More importantly, we also think that the Government’s assessment of the financial benefits of these Regulations dramatically fails to take account of the contribution to the economy made by Christian organisations in the voluntary and non-voluntary sectors. The value to the economy of charitable work runs into many millions of pounds, and Christian charities and donations given to charities by Christian individuals and organisations account for a sizeable proportion of this figure.

In many sectors it is Christian run organisations which are contracted by local government to provide services to the community, and in many other cases, Christian organisations provide vital community services entirely free of charge. The list of such Christian organisations, charities and informal associations includes: homeless shelters, residential care for the disabled, work with disadvantaged children, work with drug and alcohol addicts, youth clubs, provision for the elderly, community social care projects, charity shops, mother and toddler groups. The list could go on.

If the Government push through these Regulations without regard to their impact on this sector, we are concerned that they will force many Christian organisations and charities to reconsider their public work. It would hardly be surprising if some Christian organisations withdrew from their work if this was the only alternative to being forced to supply their goods and services in a way which contravened their faith and beliefs.

We are anxious that the Government are aware that the sole motivation for Christian-run charities and organisations is to do the good works commanded in the Bible. If doing such works required breaching doctrinal teaching about homosexuality (as the examples given above indicate will happen), then those goods and services would clearly become untenable.

On top of this is the potential impact on funding of Christian organisations. If the Christians who generously donate to charities were aware that there was a real possibility that their money might go towards facilitating and enabling homosexual practices, then again, it seems likely they might remove their funding, and this would have a knock-on effect in reducing the provision of goods and services to many sectors.

Impact on businesses

The RIA states

‘We anticipate that only a very few businesses will need to change their existing practices or policies in order to comply with the new regulations. In these cases, they requirement to stop discriminating in order to comply with the law is unlikely to be costly – indeed stopping refusing to offer their services to potential customers on the grounds of their sexual orientation would be likely to increase rather than decrease business.’

We are of the opinion that this assertion must be inaccurate. It does not take account of the impact of these Regulations on thousands of churches and Christian organisations across the country. At the very least, every such organisation or church will need to devote a substantial number of man hours for their senior executives, trustees and directors to discuss and wrangle with the doctrinal and practical implications of the proposed Regulations. Naturally such meetings will involve a substantial cost to each organisation. Most such organisations will also need to refer to solicitors for legal advice as to the likely impact of the Regulations, and to clarify exactly what will and will not be illegal under the new law. The legal fees incurred for any advice sought could add substantial costs to businesses.
In fact, we think that all organisations, secular or religious, will have to spend an extensive amount of time changing all of their equality policies and having training days for staff as well as management meetings to decide how to implement the Regulations.

Example 1: Every school in Great Britain has, as required by law, myriad policies which contain elements relating to equal treatment. For example, equal treatment in the grounds of admission of pupils, equal treatment in dealing with bullying, equal treatment in the grounds for exclusion of pupils, equal treatment in the subject matter and approach to the syllabus. Consequently, each of the thousands of schools in Great Britain would be required to consider, amend and re-publish all such policies to include the provisions of the Regulations, and would possibly have to use staff training days to incorporate training on this topic. The cost of this alone when looked at across the country, would run into tens of thousands of pounds.

The RIA states

‘It is envisaged that each service provider covered by the new regulations will have access to a leaflet that explains the changes covering both the new protection being introduced in relation to religion and belief as well as those proposed for sexual orientation. Providers may be expected to spend an additional 2.5 minutes extra reading and understanding the sexual orientation aspects of the combined guidance. Medium to large employers, those with 50 or more employees, will be expected to take an additional 5 minutes to read and consider the aspects of the combined guidance relating to sexual orientation. These are assumptions of the average time spent dealing with the guidance.’

Again, we think that this assertion must be inaccurate. As this pack has shown, the potential impact of these Regulations (which we do not think the Government has so far recognised) is very substantial. We also think that we have demonstrated that the issue raised by the Regulations are far from straightforward, and we suggest that Christian organisations will need to spend a great deal of time considering and implementing the Government advice relating to them.

The RIA states

‘Costs to Service Providers: the essence of the protection would be to require providers of goods, facilities, services and premises, not to refuse to provide services or sell their products to customers on the grounds of their sexual orientation. This will not extend to any requirement to consider reasonable accommodation or adjustment, so it is expected that the costs to providers will be negligible’.

This statement appears to lack logic. Just because there is no explicit requirement in the Regulations that service providers make ‘reasonable adjustments’, does not mean the costs will be negligible. For the reasons stated above we anticipate that the cost of implementing the Regulations will in fact be very large.

The RIA states

‘It is fair and equitable to extend similar protections against discrimination on the grounds of sexual orientation.’

We do not see how, in their present form, the Regulations can possibly be described as fair and equitable when they will inevitably lead to discrimination against millions of people in Great Britain who hold strong religious doctrinal views about homosexuality.

Summary of Conclusions

A number of conclusions can be drawn from the foregoing analysis of the proposed Regulations.

1) We support the Government in their attempt to prevent unjustified discrimination and unfair treatment of different groups in society

2) We think that sexual orientation is not equivalent to sex, race and disability and therefore we think that it is wrong to try and legislate in the same way on the issue of sexual orientation as on the issues of sex, race and disability.

3) We are concerned that the Government has not adequately appreciated or taken into account the difference between discrimination on the grounds of homophobia, and discrimination on the ground of a religious doctrinal belief about homosexuality.

4) We are also concerned that the Government has not adequately appreciated Biblical teaching that different sexual orientations are not wrong per se, but homosexual practice is in itself wrong.

5) In our view the Regulations need substantial amendment in order to avoid breaching articles 9 and 10 of the European Convention on Human Rights.

6) Our analysis of the practical and principled impact of the draft Regulations indicate that they will have an extremely widespread effect on all Christians living in Great Britain. The effect will be on Christians both individually and corporately.

7) We challenge a number of the assumptions made in the Regulatory Impact Assessment, and conclude that the Regulations will be detrimental to sexual health, economically disadvantageous, and that in order to implement them, a far greater amount of time, money and legal advice will be required than the Government have anticipated. The Regulations will have a profound effect on, and significant cost to, hundreds of thousands of secular and Christian charities, organisations, businesses and associations.

Proposals

Bearing in mind the conclusions set out above, the Lawyers’ Christian Fellowship proposes a number of solutions in order to help the Government ameliorate some of the problems which we have drawn attention to.

Defining sexual orientation discrimination more accurately

As outlined above, one possible way of addressing all the problems we have identified would be by defining more accurately what is meant by ‘sexual orientation’ discrimination so that the new law would only capture:
a) homophobic discrimination (where homophobia is defined as an irrational prejudice against a person based on a dislike of their homosexual behaviour or their sexual orientation towards people of the same sex) rather than discrimination based on a religious doctrine regarding homosexuality, and

b) discrimination on the grounds of sexual orientation, but not discrimination on the grounds of sexual conduct.

In our opinion this would go a long way to dealing with some of the problems outlined. However, we acknowledge that it would be hard to operate these distinctions in practice. This does not detract from their validity, it points to the fact that views, opinions and religious doctrine relating to sexual orientation are not simple and do not lend themselves to broad-brush legislation. However, because of the Government’s commitment to bringing these Regulations in, we will go on to consider other methods for redressing the problems we have outlined above.

Exceptions to the general prohibition

The other obvious way to deal with the weaknesses which we have drawn attention to, would be to provide focussed and necessary exceptions to the general prohibition on sexual orientation discrimination. There are two obvious precedents and legislative paradigms for this.

Model 1: Part 2 of the Equality Act 2006

Part 3 of the Equality Act 2006 (which is of course the enabling statute for these Regulations) states in s81 that:

(1) The Secretary of State may by regulations make provision about discrimination or harassment on grounds of sexual orientation […]
(3) The regulations may, in particular-
(a) make provision of a kind similar to Part 2 of this Act;

The clear guidance from the enabling legislation is to look to Part 2 of the Act for guidance. This is not undermined in any way by s81(3)(e) which states that the Regulations may provide for exceptions ‘whether or not of a kind similar to those provided for by Part 2 of this Act or any other enactment relating to discrimination or equality’. In numerous other places the Government commit themselves to considering these draft Regulations in the same way as Part 2 of the Equality Act (see for example para 3(1) of the consultation). On page 65 of the consultation (part of the Regulatory Impact Assessment) it is stated:

‘In tackling discrimination on the grounds of sexual orientation, the government intends to take a similar approach, where appropriate, to that taken in other legislation in the provision of goods, facilities, services, premises and public functions.’

The implication is that Part 2 of the Equality Act will be a good starting point for considering any exceptions which may be needed to protect religious groups. The implication is also that the Government can adopt other forms of exemptions, but would presumably only do so if there were some logical justification for this. However, the consultation indicates no predisposition to follow this approach: the exceptions provided for in the Equality Act Part 2 to protect religious freedom are not placed into the proposed Regulations (even though both deal with the topic of goods, services and facilities).

If the current Regulations were to be given all the exceptions found in Part 2 of the Equality Act (sections 56 to 64), we think that this would go a very substantial distance to address the concerns we have outlined. In particular, the following sections of Part 2 of the Equality Act would have to be mirrored in the proposed 2006 Regulations:

s52 Public Authorities: general

(1) It is unlawful for a public authority exercising a function to do any act which constitutes discrimination […]
(4) The prohibition in subsection (1) shall not apply to-
(k) action in relation to-
(i) the curriculum of an educational institution,
(ii) admission to an educational institution which has a religious ethos,
(iii) acts of worship or other religious observance organised by or on behalf of an educational institution (whether or not forming part of the curriculum),
(iv) the governing body of an educational institution which has a religious ethos,
(v) transport to or from an educational institution, or
(vi) the establishment, alteration or closure of educational institutions.

s57 Organisations relating to religion or belief

(1) This section applies to an organisation the purpose of which is-
(a) to practice a religion or belief,
(b) to advance a religion or belief,
(c) to teach the practice or principles of a religion or belief,
(d) to enable persons of a religion or belief to receive any benefit, or to engage in any activity, within the framework of that religion or belief, or
(e) to improve relations, or maintain good relations, between persons of different religions or beliefs.

(3) Nothing in this Part shall make it unlawful for an organisation to which this section applies or anyone acting on behalf of or under the auspices of an organisation to which this section applies-
(a) to restrict membership of the organisation,
(b) to restrict participation in activities undertaken by the organisation or on its behalf or under its auspices,
(c) to restrict the provision of goods, facilities or services in the course of activities undertaken by the organisation or on its behalf or under its auspices, or
(d) to restrict the use or disposal of premises owned or controlled by the organisation.

(4) Nothing in this Part shall make it unlawful for a minister-
(a) to restrict participation in activities carried on in the performance of his functions in connection with or in respect of an organisation to which this section relates, or
(b) to restrict the provision of goods, facilities or services in the course of activities carried on in the performance of his functions in connection with or in respect of an organisation to which this section relates.

(5) But subsections (3) and (4) permit a restriction only if imposed-
(a) by reason of or on the grounds of the purpose of the organisation, or
(b) in order to avoid causing offence, on grounds of the religion or belief to which the organisation relates, to persons of that religion or belief.

(6) In subsection (4) the reference to a minister is a reference to a minister of religion, or other person, who-
(a) performs functions in connection with a religion or belief to which an organisation, to which this section applies, relates, and
(b) holds an office or appointment in, or is accredited, approved or recognised for purposes of, an organisation to which this section applies.

On top of these provisions, we see it as imperative that the protection given in sections 58, 59, 60 and 61 of the Equality Act should also be provided in relation to these Regulations. In addition to mirroring the Part 2 exemptions, it is the view of the Lawyers’ Christian Fellowship that in order to comply with Britain’s obligations and European law, and in order to maintain freedom of religion, it is also crucial that two further provisions be added.

Firstly, the Part 2 protection (particularly by virtue of s57) attaches to ‘organisations’ relating to religion or belief. This means that the provisions will not always protect individual believers who hold to Biblical doctrine regarding homosexuality. For example, a Christian who holds a religious doctrinal view that homosexual practice is wrong would not be protected by the Part 2 exemptions if the organisation, charity etc in which they work did not share that doctrinal view. This is extremely serious because it is in relation to individuals that the state needs to be especially strong in protecting religious freedoms, and it is individuals who can challenge their treatment under the Human Rights Act, if they feel their freedom of religion has been undermined unjustifiably.
Example 1: A Christian teacher working in an Anglican school who refused to teach that homosexuality is equal to heterosexuality, would not be acting illegally, because the school itself has a requirement that their teachers do not teach that the two sexual orientations are equivalent, and the school is protected by the Part 2 style exemptions. However, an individual Christian teacher in a secular state school who refuses to teach homosexuality and heterosexuality are equal (and thereby discriminates on the grounds of sexual orientation in the provision of education), would have no protection from Part 2 – the school itself has not applied the requirement and therefore no protection accrues to the teacher as an individual believer.

The logical conclusion of the above point is that all Christian teachers working in state schools could be sacked if they refuse to teach the equivalence of heterosexuality and homosexuality because that refusal would breach the Regulations as the current proposals stand. Those teachers would have a strong case for a breach of their article 9 right to freedom of religion and article 10 right to freedom of expression.

Secondly, we do not think that section 57 (2) should be mirrored in the 2006 Regulations. s 57(2) states ‘this section [i.e. the exceptions] does not apply to an organisation whose sole or main purpose is commercial’. We think that to suggest that exceptions should be denied to such organisations demonstrates a misunderstanding of the whole concept of Christianity. Christianity permeates every part of life and for Christians, their belief in the Bible means that they seek to put the Bible’s teaching first in every aspect of their life, whether this is home life, life as part of a religious organisation, or commercial life. Therefore a Christian belief and ethos will be just as strong and important in the context of commercial organisations as it will in any other context. The potential infringement of religious freedom will be just as great to deny those who work at or run a commercial Christian organisation the ability to live according to Biblical doctrine, as it would be to deny a church that ability.

Conclusion: Firstly, the enabling legislation and the comments made in the consultation indicate that the first point of consideration regarding any exceptions to the Regulations, should be Part 2 of the Equality Act.

Secondly, we think it is illogical for the Government not to have automatically mirrored the exemptions in Part 2 of the Act (or in The Employment Equality Regulations), when drafting the current 2006 Regulations.

Thirdly we think that to incorporate the Part 2 exceptions for organisations relating to religion and belief (plus the other sections relating to charities, faith school and public functions) into the proposed Regulations, would go a long way to dealing with the problems we have identified.

Finally however, we think it is absolutely essential that two alterations be made to the Part 2 exemptions in order to address the problems with the current draft of the Regulations: i) it must be made explicit that there is an exemption for individuals who provide goods, services (etc.) who have a genuine belief in a religious doctrine concerning homosexuality, and ii) the exemptions must apply as much to organisations who operate partially, mainly or solely as commercial entities.

Model 2: The Employment Equality (Sexual Orientation) Regulations 2003

Page 65 of the consultation also hints at the fact that the Government will consider the example of the Employment Equality (Sexual Orientation) Regulations 2003 when drafting the current Regulations. We think that the exemptions provided in the 2003 Regulations to protect religious groups could also be used to remedy some of the current problems we have identified with the 2006 Regulations. If the wording from the 2003 Regulations was applied to the proposed 2006 Sexual Orientation Regulations, the exceptions (with the appropriate words altered) would therefore read along the lines of:

‘the prohibition on discrimination on the grounds of sexual orientation in the provision of goods, services, facilities, premises, education and public functions does not apply where: a) the provider (or a member of the provider’s organisation) applies a requirement in respect of sexual orientation
i) so as to comply with the doctrines of a religion or
ii) because of the nature of the goods, services, facilities, premises, education or public functions provided, and the context in which they are provided, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers and
b) either
i) the person to whom the requirement is applied does not meet it or
ii) the provider is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that the person meets it’.

To reflect the same issues identified in relation to model 1, we have added a section (in section a)) that protects individuals as well as organisations.

Conclusion: The exceptions provided by the Employment Equality Regulations, if applied to the proposed 2006 Regulations, would also go a long way to dealing with the problems we have identified. Again however, it would be of crucial importance that they protected the right of individual believers to act in accordance with Biblical doctrine

Summary of proposals

1) Sexual orientation discrimination should be defined more accurately so that the Regulations only prohibit homophobic discrimination and discrimination on the grounds of sexual orientation, whilst leaving those who hold genuine religious doctrinal beliefs free to discriminate on the grounds of homosexual conduct.

Alternatively:

2) The protections afforded in the Equality Act 2006 Part 2, designed to guarantee freedom of religion, should be mirrored in the proposed Regulations. In addition, there must be a clause added to protect the religious freedom not just of organisations, but also of individual believers. Finally, the protections for religious organisations should extend to organisations which could be described as wholly or mainly commercial.

Alternatively:

3) The protections afforded in the Employment Equality (Sexual Orientation) Regulations 2003, designed to guarantee freedom of religion, should be mirrored in the proposed 2006 Regulations. In addition, there must be a clause added to protect the religious freedom not just of organisations, but also of individual believers.

Specific answers to the consultation questions

Questions 1

In principle, we do not accept that there is justification for these Regulations. In the event of the Regulations being implemented, then in order to prevent Christians with genuinely held religious views that homosexual conduct is wrong from suffering discrimination themselves, proposals 1), 2) or 3) (above) should be accepted.

If the government do not agree to any of these proposals then we cannot accept that the Regulations should apply to goods, facilities and services, because were they to do so, they would prevent Christians from acting in accordance with Biblical teaching about homosexuality and would on, occasion, force Christians to act against their beliefs, thus denying them the freedom to exercise their religion, as guaranteed by art 10 of the European Convention on Human Rights.

At paragraph 3.5 of the consultation it is stated, regarding the scope of the Regulations, that

In practice, courts have interpreted the scope of goods, facilities and services quite widely, ruling in individual cases that a very diverse range of activities, including many public services provided by government, are caught by the term. Goods, facilities and services provisions apply regardless of whether or not a charge is made for the service or facility being provided.

However, we strongly advocate, in line with European case law (see for example SPUC v Grogan (1991)), that both goods and services should be defined with a requirement that they are provided in exchange for remuneration. This would therefore exclude purely voluntary activities from the scope of the Regulations. In our opinion this makes sense because it is far more understandable to regulate a sector that operates for profit than it is to impose an onerous law on people who are acting altruistically. Additionally, it seems to us to be wrong to force someone who provides goods or services out of their own generosity, to provide them to someone against their will.

Question 2

In principle, we do not accept that there is justification for these Regulations. In the event of the Regulations being implemented, then in order to prevent Christians with genuinely held religious views that homosexual conduct is wrong from suffering discrimination themselves, proposals 1), 2) or 3) (above) should be accepted.

If either proposals 1), 2) or 3) (above) are accepted, then the application of the Regulations to goods, facilities and services will apply in the same way as in other equality legislation, subject to the caveat (above) that we think they should only apply if those goods, services or facilities have been provided in exchange for remuneration.

In addition, it can be stated that if the Government accept the logic of taking the same approach as in Part 2 of the Equality Act, this supports our contention that they should also acknowledge the need in relation to the 2006 Regulations, to include, at the very least, the same exceptions which are provided in Part 2.

Question 3

If the Regulations are really trying to get rid of a genuine mischief (homophobic discrimination) and the Government therefore accept proposal 1) (above) then there can be no ‘justified’ exceptions to the Regulations at all.

The very premise of this consultation question illustrates that it would be wrong to try and render illegal all discrimination on the grounds of sexual orientation (as opposed to homophobic discrimination), because there are plenty of scenarios where it is justifiable to discriminate in a non-homophobic way on this ground. Primarily, it will be justified where someone acts upon a genuine doctrinal belief. Thus we think that wholesale exceptions to protect religious freedom in accordance with proposals 2) or 3) (above) should be the priority.

If the Government do not accept our proposal 1) then we do recognise that it could result in absurdity were the Regulations to apply without exception to all activities, irrespective of whether the goods and services were specifically tailored to the needs of people of a particular sexual orientation.

Example 1: It would be ludicrous to apply the Regulations to a dating agency which provided a service just for heterosexual couples. It would deny its services to homosexuals, and therefore technically discriminate on the grounds of sexual orientation, but it would do so on the justified grounds that it was not capable of meeting the needs of homosexual clients. The same would apply vice versa to a homosexual dating agency which would not be suitable for a heterosexual looking for a partner.

In our view this difficulty simply illustrates that proposal 1) must be accepted. To try and exempt, on an ad hoc basis, every single activity which could be said to be justifiably designed to meet the need of people of just one sexual orientation, would be highly unsatisfactory from a legal point of view. Almost inevitably some justifiable activities would be overlooked, and in any case, the more exceptions that were granted, the more the basic principle of the Regulations would be undermined. For instance, a gay club might have a policy not to admit heterosexuals (the club is designed to cater for the needs of homosexuals) but this would in fact just allow discrimination to be perpetuated. No-one would suggest the flip-side – that all heterosexual clubs (designed to cater for ‘straight’ people) should be able to exclude all gay people. Thus we conclude that the Regulations will only work if they seek to eliminate discrimination on the basis of personal prejudice against people of a certain sexual orientation, rather than those who hold a religious doctrinal view regarding sexual orientation.

Question 4

In principle, we do not accept that there is justification for these Regulations. In the event of the Regulations being implemented, then in order to prevent Christians with genuinely held religious views that homosexual conduct is wrong from suffering discrimination themselves, proposals 1), 2) or 3) (above) should be accepted.

If the Government do not agree to any of these proposals then we cannot accept that the Regulations should apply to premises, because were they to do so, they would prevent Christians from acting in accordance with Biblical teaching about homosexuality and would, on occasion, force Christians to act against their beliefs, thus denying them the freedom to exercise their religion, as guaranteed by art 10 of the European Convention on Human Rights.

Question 5

We recognise the pragmatic necessity of this suggestion, and we think that it illustrates the fact that individuals in society have differing views about sexual orientation, and some hold those views very strongly.

We think not only is it vital to allow protection for individuals within their homes to both hold and act in accordance with their beliefs about sexual orientation, this right should extend (subject to any caveats mentioned above) to all individuals and organisations in public life. Therefore we think that the Government should implement either proposal 1), 2) or 3) (above). If the Government do not agree to any of these proposals then we would have to agree to the exemption outlined in this question.

Question 6

We repeat the view that if the Regulations are really trying to get rid of a genuine mischief (homophobic discrimination) and the Government therefore accept proposal 1) (above) then there should be no exceptions to the Regulations.

Therefore, if proposals 1), 2) or 3) are accepted, private members clubs should be included in the Regulations. If none of the proposals are accepted then we do not think the Regulations should apply to such clubs because we could not support the application of the Regulations to any good, facility or service.

Question 7

We repeat the view that if the Regulations are really trying to get rid of a genuine mischief (homophobic discrimination) and the Government therefore accept proposal 1) (above) then there should be no exceptions to the Regulations.

The corollary of this is that it would be wrong to permit private members clubs and associations to have a sexual orientation requirement for membership (unless this was on the grounds of a religious doctrine). To allow such a requirement would undermine the whole principle of the Regulations: the Regulations would then contain a general prohibition on discrimination and yet would allow the very same discrimination to be perpetuated, with no principled reason for doing so.

We make the point that if the Regulations seek to achieve equality and are to be fair and just, they must address ‘heterophobia’ as well as homophobia, the former being prevalent in the attitudes of some members of the homosexual community who want to be free to exclude all but homosexuals from some of their establishments and activities.

This question raises the same difficulties as Question 3. The proposal in Question 7 would allow the Regulations to be circumvented unjustly: someone could set up hundreds of new nightclubs across the country and describe the reason behind them to be the need to provide for ‘straight people only’ and would then be able to discriminate against homosexuals on the grounds of personal prejudice. This must be wrong. We therefore urge that the only exceptions regarding the Regulations should be focused on our proposals 2) or 3).

Question 8

In principle, we do not accept that there is justification for these Regulations. In the event of the Regulations being implemented, then in order to prevent Christians with genuinely held religious views that homosexual conduct is wrong from suffering discrimination themselves, proposals 1), 2) or 3) (above) should be accepted.

We would like to stress that any exceptions granted on the grounds of religion or belief should be expressly stated to apply also to organisations or individuals who have involvement in public functions or receive public funding (providing of course that they were acting based on a religious doctrine). The fact it is public functions or funding that are involved does not in any way affect the principle that those motivated by a religious doctrine must have the freedom to act in accordance with that doctrine without finding themselves in breach of the law.

If the Government do not accept any of our proposals, we do not support the application of the Regulations to public functions.
Question 9

In principle, we do not accept that there is justification for these Regulations. In the event of the Regulations being implemented, then in order to prevent Christians with genuinely held religious views that homosexual conduct is wrong from suffering discrimination themselves, proposals 1), 2) or 3) (above) should be accepted.

Again it should be stressed that there is a need for very explicit protection for individual teachers so that they are not forced to teach certain things (e.g. that all sexual orientations are equal) against their conscience because of their adherence to certain religious doctrines. It should also be stated clearly that in accordance with the Employment Equality (Religion and Belief) Regulations 2003 a teacher cannot be dismissed for failing to teach (for example) that homosexuality is equal to heterosexuality, if they are acting based on religious beliefs.

If our proposals are not accepted then we do not accept the application of the Regulations to schools.

Question 10

Such a need would only arise if proposals 1), 2) or 3) are not accepted. In such a case we would at the least expect the Government to provide comprehensive exceptions on the grounds of religious doctrine for ‘faith’ schools.

Question 11

Generally, if proposals 1), 2) or 3) (above) are accepted, then we do not think any special provisions will need to be made.

However, we do draw attention to the fact that it is made clear in the consultation document that in sex and religious educations lessons a parent can excuse their child on the ground of the nature of the information taught in those classes (paragraph 3.29). However, the same ability to excuse is not present as regards citizenship lessons. We think this is problematic because it is perfectly possible that teaching about sexual orientation could be included in such citizenship lessons. Consequently it is necessary for the Government to make it explicit that a parent should be able to withdraw their child from citizenship lessons on conscience grounds if the subject of those citizenship lessons trammels a religious doctrinal view on, for example, homosexual practice.

Question 12

Yes. See our proposals 1), 2) and 3) above.

Question 13

We think that our proposals 1), 2) or 3), based on principle, would deal fully with the need to protect those who hold genuine doctrinal religious views regarding homosexuality.

We also suggest that the basis of this question in the consultation shows a misunderstanding about religious doctrine. As we have already said, religious doctrine and religious belief permeate all other areas of life for those who hold the religion’s views. In this sense, anything done by an adherent to a religion will be ‘primarily doctrinal’. If a religious doctrine states that homosexual practice is sinful and should not be accepted or encouraged, then myriad activities will have to be exempted in order to allow people to act consistently with the doctrine. We think it is far better to use our proposals which cover all areas relating to those who act on religious doctrine that to attempt to exempt certain specific activities here and there.

Question 14

In principle, we do not accept that there is justification for these Regulations. In the event of the Regulations being implemented, then in order to prevent Christians with genuinely held religious views that homosexual conduct is wrong from suffering discrimination themselves, proposals 1), 2) or 3) (above) should be accepted. If proposals 1), 2) or 3) (above) are accepted, then we do not think any special provisions will need to be made.

Again, we think that this identification that there will need to be some exceptions to the Regulations illustrates the flaw in the proposals. However, again we are of the opinion that rather than trying to exempt specific activities here and there, it would be more satisfactory to exempt the one form of discrimination which will always be justified: discrimination on the grounds of a genuinely held doctrinal belief that homosexual practice is wrong.

Question 15

Proposal 1) (above) illustrates how we think the scope of these Regulations should be determined. Additionally, it is important to note that we only accept the sense in making victimisation unlawful if the Government accept the need for our proposals 1), 2) or 3) to be adopted.

In any case, we do not think that indirect discrimination should be rendered unlawful. The problem that the Regulations are trying to address is the unfair and unjustified discrimination against people on the grounds of their sexuality. The problem is deliberate discrimination, not ‘accidental’ discrimination. In fact, we think there are very few circumstances where it would be possible to indirectly discriminate on the grounds of sexual orientation, and we also think that the complexity and criticism of the indirect discrimination test used in other areas of law, suggests it would be best to steer clear of it.

Question 16

In principle, we do not accept that there is justification for these Regulations. In the event of the Regulations being implemented, then in order to prevent Christians with genuinely held religious views that homosexual conduct is wrong from suffering discrimination themselves, proposals 1), 2) or 3) (above) should be accepted.

If these proposals are not accepted then we do not support the application of the Regulations to any area, including discriminatory practice.

Question 17

In principle, we do not accept that there is justification for these Regulations. In the event of the Regulations being implemented, then in order to prevent Christians with genuinely held religious views that homosexual conduct is wrong from suffering discrimination themselves, proposals 1), 2) or 3) (above) should be accepted.

If these proposals are not accepted, then we do not support the application of the Regulations to any area, including advertising.

Question 18

In principle, we do not accept that there is justification for these Regulations. In the event of the Regulations being implemented, then in order to prevent Christians with genuinely held religious views that homosexual conduct is wrong from suffering discrimination themselves, proposals 1), 2) or 3) (above) should be accepted.

If these proposals 1), 2) or 3) are not accepted, then we do not support the application of the Regulations to any area, including instructions to discriminate.

Question 19

We thing that it is unnecessary and unduly complicated to make the validity of contracts susceptible to a finding under the Sexual Orientation Regulations that something is unlawful discrimination. In any case, such a ruling under the Regulations would make the enforcement of the contract unlawful, and the contract would therefore, according to normal contract principles, either be void for illegality, frustrated, or in any case, unenforceable and therefore worthless. To specifically legislate any further in this regard would, in our opinion, be superfluous.

Question 20

In principle, we do not accept that there is justification for these Regulations. In the event of the Regulations being implemented, then in order to prevent Christians with genuinely held religious views that homosexual conduct is wrong from suffering discrimination themselves, proposals 1), 2) or 3) (above) should be accepted.

If these proposals are not accepted, then we do not support the enforcement of the Regulations.

Question 21

See our comments on page 9.