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.
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
61. However, the Consultation Paper indicates that
the Government will be considering whether the Regulations should
cover teaching in schools
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.
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.
They also make it unlawful to subject to harassment any pupil
at the school or applicant for admission.
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.
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."
Lord Rooker repeated this in the debate on the Northern Ireland
Regulations in the House of Lords:
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.