Joint Committee On Human Rights Sixth Report

5  Education

Applicability to the curriculum

60. The Consultation Paper proposes that the new Regulations prohibiting discrimination on the grounds of sexual orientation should cover access to and the provision of education in schools in both the maintained and independent sectors.[49] It makes clear that under the Regulations schools when selecting pupils for admission will not be able to treat a prospective pupil differently because of his or her sexual orientation (or that of their parent or some other person associated with them), nor will they be able to deny certain privileges or opportunities, such as the chance to become a prefect or take part in a school trip, because of a pupil's sexual orientation, nor apply disciplinary policies differently to homosexual pupils or behaviour. It makes clear that schools will also need to ensure that their current bullying policy takes proper account of the need to tackle homophobic bullying with the same seriousness as bullying motivated by other factors.

61. However, the Consultation Paper indicates that the Government will be considering whether the Regulations should cover teaching in schools[50] and whether any special provision needs to be made to enable faith schools in both the maintained and independent sectors to balance the new obligations not to discriminate with their need to operate in a way that is consistent with their school's ethos.[51] It therefore asks for views as to whether there are any circumstances in which schools, or a part of the schools sector, should be exempted from the regulations, and whether there are any areas of activity for schools for which special provision should be made.

62. The Northern Ireland Regulations cover education. They make it unlawful for state and independent schools to discriminate against a person on grounds of sexual orientation in the terms on which it offers to admit him or her to the school, or by refusing to accept an application for admission, or in the way that it affords a pupil at the school access to any benefits or by refusing access to them, or by excluding a pupil from the school or subjecting him or her to any other detriment.[52] They also make it unlawful to subject to harassment any pupil at the school or applicant for admission.[53] The Regulations also impose a general duty in the state sector to secure that facilities for education provided by it and any ancillary benefits and services are provided without discrimination on the grounds of sexual orientation.[54] There are no exemptions for faith schools, nor is there any specific exemption for the curriculum.

63. There appears to be considerable uncertainty of views as to whether the Northern Ireland Regulations apply to the curriculum taught in schools. In a written answer to Lord Lester, Lord Rooker said that "the regulations are not concerned with what is taught in schools. That is rightly a matter for the Department of Education."[55] Lord Rooker repeated this in the debate on the Northern Ireland Regulations in the House of Lords:[56] he said that the Northern Ireland Regulations are not concerned with what is taught in schools but in ensuring fair and equal access to education and the facilities and services associated with it. He said it is not the Government's intention to attack religious ethos, teaching or practice, and that the Regulations contain an exception intended to "protect the doctrinal nature of religious observance."

64. Others, however, regard the curriculum as being covered by the Regulations. The Fair Employment and Treatment Order 1998, which prohibits discrimination on the grounds of religion in the provision of goods and services, provides broad exemptions for schools which would cover the curriculum. The NI Sexual Orientation Regulations, however, contain no specific exemption for the curriculum. In the absence of such an exemption, they argue, the breadth of the general duty not to discriminate is such that the curriculum would be covered by the prohibition. Faith schools in particular are concerned that if the Regulations apply to the curriculum, they will not be free to decide what is taught and how it is taught in line with the faith basis of the school.

65. We welcome the Government's acceptance that the prohibition of discrimination on grounds of sexual orientation should apply to all schools in both the maintained and the independent sectors, without any exemption for particular types of school such as faith schools. In our view, it follows from the fact that protection against sexual orientation discrimination is rooted in recognition of the equal dignity of every individual that there should be no exemptions for faith schools. Such an exemption would be likely to lead in practice to breaches of pupils' rights not to be discriminated against on the basis of their sexual orientation, contrary to Article 14 in conjunction with Article 8 and Article 2 of Protocol 1.

66. We are concerned, however, by the Government's position in relation to the Northern Ireland Regulations that the prohibition on sexual orientation discrimination does not apply to the curriculum, that is, the substance of what is taught in schools. The Government appears to believe that if a faith school were not free to teach its doctrinal beliefs about sexual orientation as part of its curriculum, this would amount to an attack on the "ethos" of the school. It appears to regard Article 9 ECHR as requiring the curriculum to be exempted from the prohibitions contained in the regulations.

67. We do not consider that the right to freedom of conscience and religion requires the school curriculum to be exempted from the scope of the sexual orientation regulations. In our view the Regulations prohibiting sexual orientation discrimination should clearly apply to the curriculum, so that homosexual pupils are not subjected to teaching, as part of the religious education or other curriculum, that their sexual orientation is sinful or morally wrong. Applying the Regulations to the curriculum would not prevent pupils from being taught as part of their religious education the fact that certain religions view homosexuality as sinful. In our view there is an important difference between this factual information being imparted in a descriptive way as part of a wide-ranging syllabus about different religions, and a curriculum which teaches a particular religion's doctrinal beliefs as if they were objectively true. The latter is likely to lead to unjustifiable discrimination against homosexual pupils. We recommend that the Regulations for Great Britain make clear that the prohibition on discrimination applies to the curriculum and thereby avoid the considerable uncertainty to which the Northern Ireland Regulations have given rise on this question. We further recommend that the Government clarifies its understanding of the Northern Ireland Regulations on this matter.

49   CP at para. 3.24. Back

50   CP para. 3.29. Back

51   CP para. 3.31. Back

52   Reg. 9(1). Back

53   Reg. 9(2). Back

54   Reg. 11(1). Back

55   HL Deb, 13 December 2006, col. WA198. Back

56   HL Deb 9 January 2007 cols 208-209. Back

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