Has the ASA got in a muddle over sexual orientation?

My thanks to Ruth Gledhill, Jill from Anglican Mainstream and others who have sent me the original advert from Sandown Presbyterian Church, together with the ruling (which you can read for yourself by clicking here). In this post I’m going to examine the advert and the ruling and comment on what the ASA judgement implies for Christian witness in this country.

This is the full text of the advert:

THE WORD OF GOD AGAINST SODOMY"

Last year in the ‘gay pride parade’ a banner stating "Jesus is a Fag" was carried by one of the participants. The supporter of homosexuality was able to walk through the streets of Belfast displaying this offensive placard in spite of the presence of the PSNI, representatives from the Commission and the march organisers. The act of sodomy is a grave offence to every Bible believer who, in accepting the pure message of Gods precious Word, express the mind of God by declaring it to be an abomination. (Leviticus, ch18 v22, Thou Shalt not lie down with mankind, as with womankind; it is an abomination.) This unequivocal statement clearly articulates Gods judgement upon a sin that has been only made controversial by those who are attempting to either neutralise or remove the guilt of their wrongdoing. As a result, we are now witnessing a hostile spirit being exerted against the testimony of Gods precious Word and those who adhere to its teachings. It is imperative that everyone whose faith is centred upon the authority of the divinely inspired scriptures maintain a strong and public stand for the ethical and moral standards that will ultimately exalt the nation. (Proverbs, ch14 v34, Righteousness exalteth a nation; but sin is a reproach to any people.)

The issue of human rights is no longer a basis for this parade, as successive governments have legislated for the lowering of the age of consent, the authorisation of civil partnerships and the inheritance rights of a nominated partner. It is a cause for regret that a section of the community desire to be known for a perverted form of sexuality, which in certain incidences has provoked the unacceptable and totally unjustifiable response of violence. Such a response, however, must not intimidate the church into silence.

We are obliged under God to publicly challenge the vices of this generation with the divine assurance that the gospel of redeeming grace can change a persons life by making them a new creature in the beloved Lord Jesus Christ. (1st Corinthians, ch6 vs9-11, know Ye not that the unrighteous shall not inherit the kingdom of God? Be not deceived: neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind, Nor thieves, nor covetous, nor drunkards, nor revilers, nor extortioners, shall inherit the kingdom of God. And such were some of you; but ye are washed. But ye are sanctified, but ye are justified in the name of the Lord Jesus, and by the spirit of our God.)

The message of the gospel is purifying, positive and precious all because the Lord Jesus Christ shed his sinless blood on the cross of Calvary to take away sin. We invite you to join us … as we assemble in the park … for a gospel witness against the act of sodomy. This parade is not a welcome addition to our city, neither is it a positive celebration of a profitable lifestyle flaunting a form of sexuality that generations of men and women have righteously resisted and by Gods grace will continue to resist. Romans, ch1 v17".

OK, let me begin with a criticism of the advert. Sodomy. What does it mean? In modern English (and particularly its usage in the law) we understand the word sodomy to refer to the practice of penetrative anal sex. I don’t think most people hear that word and think it refers to all forms of homosexual activity. Yet, if we look at the specific Bible verses involved in this discussion, the actual specific sexual act is never really covered. We can have a long discussion over the exact meaning of the words in 1 Cor 6:9, but I think we need to begin this discussion with a gentle reminder to my conservative friends that anal sex is NOT the be all and end all of gay sex. In fact, most men who engage in same-sex activity don’t engage in anal sex.

So, either the writers of the advert don’t understand the modern usage of the word sodomy or they are completely ignorant about gay sex. Either way, a little more cultural awareness wouldn’t be amiss.

Now we’ve got that out of the way, let’s explore the judgement.

The ASA received seven complaints:

1. four complainants believed the ad’s content was homophobic and, therefore, offensive and

2. six complainants believed the ad was likely to provoke hatred and violence against the lesbian, gay, bi-sexual and transgender (LGBT) community.

The second complaint was rejected by the ASA on the following grounds:

We understood that the complainants were concerned because the ad called for an outdoor meeting to be held in protest of the act of sodomy and to voice disapproval of the Belfast Gay Pride parade on the same day as the parade was arranged; they believed this action could be read as an attempt to spread hatred and incite violence against supporters and members of the Pride movement and LBGT community.

While we appreciated the complainants’ concern, we considered that the ad did not in itself incorporate language likely to incite a violent emotional response. We considered that it would be clear to readers that it represented the views of a specific group, which were not universally held, and would be deemed extreme by some. We acknowledged, therefore, that the ad conveyed an opinion that was controversial for some readers but concluded that it was unlikely to provoke hatred or violence against the LGBT community.

On this point, we investigated the ad under CAP Code clauses 8.1 (Matters of opinion) and 11.1 (Violence and anti-social behaviour) but did not find it in breach.

Quite right too. You simply can’t rule that someone is provoking a violent response unless they are actually explictly advocating or deliberately eliciting (and that is quite hard to prove) such a response. The language of the ASA ruling is very clear – "the ad did not in itself incorporate language likely to incite a violent emotional responsethe ad conveyed an opinion that was controversial for some readers but concluded that it was unlikely to provoke hatred or violence against the LGBT community".

However, the ASA found Sandown Presbyterian Church guilty on the first allegation, that of being homophobic.

The ASA noted the ad prominently stated "Published by the Kirk Session of Sandown Free Presbyterian Church" and recognised that readers would understand that the text was representative of the beliefs of a specific group and indicative of their opinion only. We considered, however, that some of the text used in relation to homosexuality, for example, "… declaring it to be an abomination …", "… God’s judgement upon a sin …", "… remove the guilt of their wrongdoing …", "… a cause for regret that a section of the community desire to be known for a perverted form of sexuality …", went further than the majority of readers were likely to find acceptable.

We considered that particular care should be taken to avoid causing offence on the grounds of sexual orientation, and concluded that this ad had caused serious offence to some readers.

On this point, the ad breached CAP Code clause 5.1 (Decency) but did not breach 8.1 (Matters of opinion).

It seems that this case has brought up an issue that I have raised before, when the initial SORS were proposed for Northern Ireland. Back then (in December 2006) I wrote the following:

My biggest problem with the SOR is I want to know how they will define what a homosexual person is. Will it be defined by biological factors like race or sex discrimination? At the moment without ever meeting you I can take your DNA and tell straight away what sex you are and what race you are. The essence of the discrimination laws of the 1960s and 70s was that these things were natural and immutable and therefore normal variances of human biological development. It is impossible to change your sex (despite chopping bits off or adding them) as your chromosomes will remain XY or XX regardless. The same with race – to change your race you would need to modify every single cell in your body.

When we look at sexual orientation we can’t do the same thing. There is nothing in your genes, your brain or anything biological or biochemical that indicates straight away “yes, this person is gay”. So we’re left with personal identification – i.e. that people are classified as gay NOT because there is some clear biological criteria under which that can be ascertained but rather because they simply claim to be so. Now that’s not to deny in any sense that people are correctly reporting their homosexual orientation (been there, done that – if anybody had told me ten years ago that I was deluding myself about what I was experiencing sexual orientation wise they would have been wrong – period) but it is to point out that the terms under which that identification can be confirmed are different to race and sex. The bottom line is, I would like to see a very clear legal definition of what a gay person is and how it can be clearly identified.

If that happens and the only answer is “someone who engages in sex with someone of the same sex, or who is sexually aroused by someone of the same sex” then we are left with two problems. The first is that the first definition (someone who engages in sex) describes a behaviour separate to orientation and therefore places homosexual activity in the same position as smoking or drinking, both of which are legally discriminated against already (no-smoking zones and bans, alcohol free city-centre zones). To elevate the right to gay sex above the right to smoke is of course blatantly ridiculous.

The second definition (sexually aroused by someone of the same sex) describes a biological response which we can record, but not one which we can source (i.e. we can scientifically observe sexual arousal but we can’t determine prior to the experiment on a fresh subject what that observation is likely to be and why – i.e. the source of orientation). We’re back to the same problem – we can’t adequately, scientifically clarify why sexual orientation is, unlike race or sex.

Perhaps Sexual Behaviour Regulations would be better, but the political problem with that is that it would protect a particular minority behaviour above others.

So, how about this – I wonder about the legality of refusing to rent your private room (B&B or otherwise) to two men on the basis NOT of their orientation but of their sexual practice. As far as I can see there’s nothing in the legislation to prevent that. I’m dying to see the first test case where the prosecution says “no, it was discrimination on the grounds of sexual orientation” and the defence replies “prove the sexual orientation of the plaintiff in the same way that you can race or sex and we’ll give way”.

The problem with the ASA ruling as I see it is that they seem to have confused the issues of sexual orientation and sexual practice. The CAP Code, section 5.1 says the following:

DECENCY

(ie avoiding serious or widespread offence)

5.1 Marketing communications should contain nothing that is likely to cause serious or widespread offence. Particular care should be taken to avoid causing offence on the grounds of race, religion, sex, sexual orientation or disability. Compliance with the Code will be judged on the context, medium, audience, product and prevailing standards of decency.

5.2 Marketing communications may be distasteful without necessarily conflicting with 5.1 above. Marketers are urged to consider public sensitivities before using potentially offensive material.

5.3 The fact that a particular product is offensive to some people is not sufficient grounds for objecting to a marketing communication for it.

The important point to note here is that the decency criteria cover sexual orientation, not sexual practice. But go back to the advert, and read the relevant sections cited by the ASA ruling, and you will see that all of the quotes are to do with sexual practice and not sexual orientation.

Let me demonstrate. The first quote is "… declaring it to be an abomination …". The full context of that quote in the original advert is as follows:

The act of sodomy is a grave offence to every Bible believer who, in accepting the pure message of Gods precious Word, express the mind of God by declaring it to be an abomination.

Very clearly the advert refers to a sexual activity and not a sexual orientation. Therefore this sentence cannot fall foul of section 5.1 of the CAP Code since the CAP Code does not cover sexual practice.

The next quotes in the ruling are "… God’s judgement upon a sin …" and "… remove the guilt of their wrongdoing …". The full context is as follows:

. (Leviticus, ch18 v22, Thou Shalt not lie down with mankind, as with womankind; it is an abomination.) This unequivocal statement clearly articulates Gods judgement upon a sin that has been only made controversial by those who are attempting to either neutralise or remove the guilt of their wrongdoing.

Once again, the advert refers to a sexual activity as sinful and not the desire to commit that sexual activity. Therefore section 5.1 cannot apply because the sentence in context clearly does not address the issue of sexual orientation.

Here’s the final quote – "… a cause for regret that a section of the community desire to be known for a perverted form of sexuality …". The full context is as follows:

It is a cause for regret that a section of the community desire to be known for a perverted form of sexuality, which in certain incidences has provoked the unacceptable and totally unjustifiable response of violence.

Firstly, this is a passage that unequivocally denounces homophobic violence. However, the text "a perverted form of sexuality" is what’s really at issue here. For me this is the point at which the ASA’s case is at its strongest, but once again I would argue that given the rest of the advert, it might be reasonably assumed that "perverted form of sexuality" refers not to a same-sex orientation but rather specific sexual activity, especially given that the previous sentence refers not to sexual orientation but ages of consent for sexual activity and the freedom to assign inheritance rights to civil partners. Unless you are to argue that only same-sex oriented couples may enter a civil partnership (and such a presumption does not exist in the law in the same way that a marriage does not necessarily have to be desirously consumated to be valid) then you cannot argue that the paragraph is contextually about same-sex orientation rather than activity.

I think it’s fair to point out at this point that I am uncomfortable with the words "a perverted form of sexuality", but I don’t think such words necessarily refer to sexual orientation. I personally wouldn’t use them to talk in a non-christian environment about same-sex activity, but that’s a separate matter.

That aside, it appears to me that the ASA has got itself into rather a muddle here, by confusing sexual orientation and sexual activity. Unless you are to assume that being same-sex oriented means that you have no option but to engage in same-sex activity (and I have argued recently that such an assumption has no ground and runs counter to most historical sociological understandings) then the ASA case falls apart. It is painfully clear that three of the four examples the ASA ruling gives for the advert failing section 5.1 of the CAP code do not in any sense breach the code because they have nothing to do what so ever with sexual orientation. The fourth example can only be taken to breach the code if the quote is read out of context of the rest of the advert.

I believe that were Sandown Presbyterian Church to take this ruling to judicial review and to argue upon these lines we would get a very important ruling that would begin to lay down the interpretation of the law in this area, not just in regard to advertising and public declarations but also in connection to the SORS and other related legislation. We need some clarification exactly what does and doesn’t constitute discrimination on the grounds of sexual orientation and it seems to me that this is a good case to begin with, as the quoted texts involved refer very clearly to sexual activity.

I’d be grateful for your thoughts. Do you agree with me that the ASA seems to have confused sexual orientation and sexual activity? If not, why not? If you’re new to the blog, please make sure you read the commenting policy before posting.

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