UK Equality Bill
The Church of England has produced an excellent response to the government’s initial proposal for a single equality bill in the UK. Here are the best bits.
Gender reassignment (10.1 – 10.15)
50. We note that the Gender Directive is to be implemented by way of Regulations under the European Communities Act in the first instance. We regret the proposal to legislate in this way, rather than by primary legislation: it seems undesirable to us to legislate in such a sensitive area by a means which does not allow any detailed amendment of what is proposed. However, we welcome the proposal that the new provisions concerning gender reassignment do not apply in relation to the provision of goods, facilities or services at a place occupied or used for the purposes of an organised religion.
51. We note, however, that paragraph 10.14 of the consultation paper leaves open the question of whether the Single Equality Bill should contain exceptions to allow religious organisations to treat people differently on the grounds of gender reassignment. We welcome the acknowledgement in that paragraph that it is necessary to strike a balance between the rights of transsexual people and freedom of religious expression. The need to strike such a balance, and the manner in which such balance is to be achieved, has already been recognised in existing legislation concerned with gender reassignment.
52. For example, section 19 of the Sex Discrimination Act 1975 (as amended) allows a requirement not to be undergoing or have undergone gender reassignment to be applied in relation to employment in order to comply with the doctrines of a religion or so as to avoid conflicting with the strongly-held religious convictions of a significant number of the religion’s followers. And section 5B of the Marriage Act 1949 (as inserted by Schedule 4, paragraph 3 of the Gender Recognition Act 2004) relieves clergy of the Church of England of the obligation to marry a person whose gender they reasonably believe is an acquired gender. The current position is that those with strongly held religious convictions are not required to act in a manner that would conflict with those convictions in relation to gender reassignment. That position continues to be reflected in the draft Regulations.
53. We would have serious concerns if it were proposed that the Single Equality Bill should alter the balance achieved by the Regulations and embodied in current legislation. The issues that arise with regard to gender reassignment and the Church are very similar to those which arise in relation to sexual orientation. Our position in relation to that ground are set out in our submission to the consultation on the Equality Act (Sexual Orientation) Regulations, a copy of which is attached. Our submissions with regard to exceptions for religious organisations were largely accepted by the Government.
54. A person whose gender has been reassigned is regarded for legal purposes as being of the acquired gender and the corresponding sex. However, there are many in the Church who – while acknowledging the legal consequences of gender reassignment – would not, in the light of their religious convictions, be able to accept that such a person was, in fact, of the acquired gender. So for example, were a person, as a result of gender reassignment, to acquire female gender – therefore for legal purposes being regarded as being a woman – and enter into a sexual relationship with a man, there are a significant number of people within the church who would (as a result of their religious convictions) regard that relationship as being a same-sex relationship.
55. However, because the person in question would for all legal purposes be regarded as being of the acquired gender and corresponding sex, the provision of goods, facilities and services to that person would not come within the legislative framework that deals with discrimination on the ground of sexual orientation, and therefore the exceptions that are available to religious organisations and ministers of religion in relation to that ground would not apply. That would, for example, mean that a member of the clergy might be legally required to solemnize the marriage, or conduct a service of blessing after civil marriage, of a person who had undergone gender reassignment, thereby conducting or endorsing what many Christians would consider to be a same-sex marriage. We cannot believe that that is your intention. Certainly we would regard such a requirement as wholly wrong.
56. We therefore submit that the most satisfactory way of addressing the issue would be to apply, in relation to discrimination on the ground of gender reassignment, the same set of exceptions as is currently contained in regulation 14 of the Equality Act (Sexual Orientation) Regulations for the benefit of organised religion.
I love that phrase in para 55 – “We cannot believe that is your intention”. Any way, very clearly the Archbishop’s Council is saying that many in the church would not see gender reassignment surgery in any way altering the sex that God gave to a human. Once XY, always XY as it were. I think this is an important point and I’m glad they explicitly spelled out the consequence of the provisional proposals in this area.
Next up is a subject that we touched on when discussing the Sexual Orientation Regulations.
Harassment (14.25 – 14.28)
58. We agree that it is desirable to protect people from being placed in hostile, degrading, humiliating or offensive environments. The law already provides specific protection against harassment at work across all strands of discrimination and we welcome that. In relation to race and gender protection already exists or is planned in relation to a wider range of activity. In relation both to harassment on grounds of religion and belief and on grounds of sexual orientation there are, however, substantial difficulties with achieving any satisfactory extension of the law. There is a manifest need to strike a balance between potentially conflicting rights and a clear difficulty in defining harassment in a way that does not rest too heavily on the perception of the person who feels something said or done to be offensive to them.
59. We have in mind here the right to manifest one’s religion or belief, and the right to freedom of expression. We therefore welcome the assurance in paragraph 14.5 of the consultation paper that the government will only legislate if to do so would be a proportionate response to a real problem and would not result in unintended consequences such as limiting the right to express a legitimate view or hold a different belief. From the point of view of the Church, particular issues arise in relation to harassment on the grounds of religion and belief, and sexual orientation.
60. As a matter of principle, we are concerned that the consultation paper envisages the possibility of extending protection against harassment to the ground of sexual orientation but not to religion and belief; or alternatively of extending only a cut-down form of harassment protection to religion and belief. At paragraph 6 we drew attention to the falsity of the argument that results in lesser protection being accorded to religion and belief than to other protected grounds. To extend full protection against harassment to some grounds but not to religion and belief would result in the creation of a hierarchy of rights with religion and belief in the lowest place. We cannot accept that this should be the case.
61. Turning to more specific matters, in relation to religion and belief, it is inherent in the very existence of different religions that the followers of one religion may find it necessary – in order to expound the tenets of their own religion – to question and criticise, whether explicitly or by implication, the beliefs and practices of other religions. Such questioning and criticism is a legitimate exercise of the rights to manifest religious belief and freedom of expression. Very similar considerations apply in relation to commending the faith to those of no religion or who hold no beliefs. Evangelism amounts to the manifestation of religious belief on the part of those carrying out that activity (particularly in the case of â€˜missionary’ religions such as Christianity and Islam, for which the propagation of their beliefs to others is an obligation rather than merely an option).
62. If provision is to be made in relation to harassment on the grounds of religion or belief, it would not be sufficient to except anything done in relation to the provision of goods, facilities and services by a religious organisation or a minister of religion. That would cover activity in the context of religious services, such as preaching, and scriptural reading and exegesis, as well as other occasions when teaching and instruction is offered. But on Human Rights act grounds we would want to argue strongly that the right to manifest religious belief through evangelism/proselytising extends to individual followers of the relevant religion and should not be inhibited by the possibility that some may claim that this constitutes harassment.
63. In the context of harassment on grounds of religion and belief, we are also concerned about the position of charities which have a religious ethos. We believe that there is a real risk of challenges to the use of religious practices (such as grace before meals) or of religious symbols (such as crucifixes) on the basis that they involve â€˜harassment’ of the users of their services. Simply saying that that is not the Government’s intention will not suffice. The law needs to be drafted to deliver that intention.
64. Such risk arises in part from the widely drawn definition of â€˜harassment’ currently employed in British equality legislation, including as it does not only “creating an intimidating, hostile, degrading, humiliating or offensive environment” for the person making the complaint but also “violating [their] dignity” – a broad and uncertain concept, the parameters of which are far from clear. That risk is increased by the emphasis placed on the perception of the claimant in cases where intention is not established and the court or tribunal has to consider the effect of the conduct in question.
65. It is true that someone’s perception that they are the subject of harassment is not in itself sufficient for a claim to be guaranteed success: there is an objective test of reasonableness. But whether that test is satisfied can only finally be determined by a tribunal or court in an individual case. On these emotive issues there is therefore much potential for claims to be made against religious organisations, with all the implications that has in terms of the need to commit time and resources to defending them.
66. So, we do not find the assurances in paragraphs 14.22-24 sufficient. We believe that there is a real risk that an extension of the law would encourage litigation in a sensitive area and that that cannot be in the public interest.
67. With regard to sexual orientation and sexual activity between persons of the same sex, the Church’s long-standing teaching is well known. While a range of views on the subject is to be found within the Church of England, a substantial proportion of the Church’s members continue to maintain the traditional view. We question whether there is a practical need for further anti-harassment legislation here given the other substantial protection that the consultation paper sets out at paragraphs 14.18 and 19. If the Government were to take a different view, it would be crucial to ensure that a religion’s followers (and not just religious organisations and ministers of religion) continued to be able to express the views of their faith about homosexual conduct, including challenging people to lead lives consistent with the teaching of the Church. To deny Christians (and followers of other faiths which take a similar view) such a right would amount to an unjustified interference with the right to manifest religious belief.
68. We are also concerned that any provision in respect of harassment on the grounds of religion and belief or sexual orientation should not prevent church schools from continuing to teach in accordance with such a school’s religious ethos. We have already referred to the statutory framework that deals with sex and relationship education. It is our view that that framework should continue to operate as it does now.
Two separate points but worthy of note. First is the concern that the very expression of traditional Christian teaching on sexuality as found in Scripture would render the deliverer liable to be accused of harrassment. This is obviously not a tenable situation and that’s the crucial point of para 67 – it’s no good protecting the ministers of religion if their congregations can get sued for simply saying, “Yesterday at church my pastor said …..”.
The second point is that church schools should not be penalised for taking a traditional Christian stance in teaching morals and ethics, sexual or otherwise. This is obviously a thorny subject and the issue of state church schools will rumble on and on regardless.
Of course, the Council’s stance on Civil Partnerships fits the Bishop’s Pastoral Letter, even if some Bishops don’t follow it. Civil Partnerships between clergy are allowed as long as they are non-sexual. The Council writes:
Married persons and civil partners (8.21 – 8.22)
49. We favour retaining the prohibition of direct and indirect discrimination in employment on the grounds of marriage or civil partnership. While we understand that the “marriage bar” in employment appears to have died out, and that therefore there may be little scope for discrimination on this ground in practice, it would be anomalous – as part of a comprehensive package of equality provisions – to make discrimination on this ground lawful. We should have thought that the difficulty that has arisen with regard to married couples in the same line-management chain could be addressed by, for example, providing for an exception for objectively justifiable operational requirements.
I’m still of the opinion that the Church of England should not permit its clergy to enter into a Civil Partnership. Gay relationships create the exclusion of the possibility of marriage or singleness, the two forms of life that human beings are called to by God, and as such deny the signification of the union of Christ and the Church which marriage points to. Being in a Civil Partnership is a deliberate act which denies the possibility of entering into such a relationship (marriage) that would glorify God and what he has done for his people.
Let’s wait now and see what the Government says in response.