Select Committee on Merits of Statutory Instruments Fifth Report


APPENDIX 2: DRAFT SEX DISCRIMINATION ACT 1975 (AMENDMENT) REGULATIONS 2007 - WRITTEN EVIDENCE


Memorandum by the Christian Institute and responses by the Government Equalities Office

Christian Institute

The Government has published the above Regulations to implement the EU Gender Directive. This Directive is supposed to be brought into UK law by 21 December 2007. The Regulations cover discrimination and harassment laws on the grounds of sex in the provision of goods and services. The Government has decided to implement the Directive in a way which infringes religious liberties and free speech.

The Government is also applying the discrimination and harassment laws to transsexuals (on the grounds of 'gender reassignment'). Introducing a transsexual harassment law in the area of goods and services has serious implications for religious freedom and free speech. Likewise, the discrimination law threatens to curtail religious liberty in some circumstances. These Regulations parallel the Sexual Orientation Regulations passed earlier in 2007 (however the Sexual Orientation Regulations were not required by EU obligations).

Government Equalities Office

In the 1996 ruling P v S and Cornwall County Council, the European Court of Justice established the principle that the right not to be subjected to direct discrimination on grounds of sex includes changing sex, or gender reassignment. Following that ruling the Government amended the Sex Discrimination Act 1975 to prohibit discrimination and harassment against people undergoing gender reassignment (and those who intend to undergo or have undergone gender reassignment) in the employment sphere.

While the Gender Directive does not expressly confer protection on the grounds of gender reassignment, the approach in P v S applies equally in this context, as is recognised in a joint European Council and Commission statement. In the Government's view it is therefore a requirement of the directive to extend such protection, both as regards discrimination and harassment on grounds of gender reassignment, to the provision of goods, facilities and services and the management and disposal of premises. It is on this basis that the Government consulted on its proposals.

In contrast to the GB Sexual Orientation Regulations, the scope of the Directive does not extend to education, media and advertising, or to the performance of public functions. This is reflected in the draft implementing regulations, which are intended to cover services set out in Article 50 of the Treaty establishing the European Community:

(a) activities of an industrial character;

(b) activities of a commercial character;

(c) activities of craftsmen;

(d) activities of the professions."

In our view, activities consisting of religious worship/observance are outside the scope of the Directive.

Christian Institute

There is a religious exception in the Regulations. But this exception is much too narrow. (It is narrower than that proposed by the Government in the Draft Regulations earlier this year: the draft Sex Discrimination Act 1975 (Amendment) Regulations 2007, issued 25 June 2007.) The EU Directive itself would permit a far broader exemption.

Government Equalities Office

S35ZA is intended to make explicit that provision of goods facilities and services fall outside scope of the Directive. These might include e.g. arrangements for seating in church for a carol service, but not the acts of worship or observance which take place there, since they would not be within the scope of "facilities or services" under the SDA or the Directive anyway.

In light of the consultation, we became aware that the original drafting approach to "excluded matters" (now dealt with in section 35ZA) could result in a situation where e.g. a person undergoing gender reassignment could lawfully be refused service at a Church bookshop, which is an activity of a commercial character and therefore covered by the Directive, which requires us to outlaw such discrimination. For this reason, the drafting of what now appears in s35ZA was revised.

Christian Institute

The narrow religious exception

Regulation 12 contains "excluded matters", to be added to the Sex Discrimination Act 1975 as section 35ZA. It reads as follows:

"Each of the following is an excluded matter for the purposes of sections 29 to 31-

(a) education (including vocational training);

(b) the content of media and advertisements;

(c) the provision of goods, facilities or services (not normally provided on a commercial basis) at a place (permanently or for the time being) occupied or used for the purposes of an organised religion."

The religious exception applies to both discrimination and harassment laws and contains two tests: 1) The goods or services must be of a kind that are not normally provided on a commercial basis. 2) The activity must be at place occupied or used for the purposes of organised religion.

Both 1) and 2) must be met for a person/organisation to obtain the exemption. For example, it appears that distribution of Holy Communion at a church is protected. It is not a commercial act and it is located on clearly religious premises.

Government Equalities Office

It is not possible to exempt the provision of goods, facilities and services of the kind to which the directive applies, by organised religions or religious organisations more generally, as the directive does not contain an exemption allowing this.

Likewise, it is not possible to introduce an additional exemption for individual religious believers, for example, the Christian owner of a commercially-run bookshop or café, because the creation of an 'individual conscience clause' would introduce a test that is so subjective, it would render the Regulations unenforceable and therefore ineffective for the purposes of implementing the directive.

Christian Institute

Harassment law

The Government is introducing a broad definition of harassment. At its lowest, a person must simply show that an "offensive environment" had been created. There are alarming implications for free speech. The following examples could potentially fall outside the religious exception:

  • Pastoral discussions conducted by a vicar at the home of an individual (could fail the 'place used for organised religion' test) -

Government Equalities Office

  • This would not be classed as a provision of a service to the public or a section of the public and the courts would construe this concept narrowly in this context having regard to the other services listed in the legislation and Article 9 ECHR rights

Christian Institute

  • Conversations at a church bookstall (if selling books is regarded as a 'commercial activity')
  • Conversations at a Christian bookshop (could likewise fail the 'commercial' and 'place' test)

Government Equalities Office

  • Discrimination law only covers certain fields outside the area of employment, for example, involving the provision of goods, facilities and services. It regulates the position between the supplier and the customer, and therefore informal conversations between fellow shoppers fall outside the scope of the Directive and the SDA.

Christian Institute

The wording of the harassment law is far broader than in the Directive. The Directive's definition is:

"where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person and

of creating an intimidating, hostile, degrading, humiliating or offensive environment".

The Regulations replace 'and' with an 'or' - so a person only need show that an "offensive environment" was created.

Government Equalities Office

This definition of harassment is that used in the existing employment provisions currently in the SDA (and is similar to those used in implementing directives covering race, age, sexual orientation disability and religion or belief in employment, and race in relation to goods, facilities and services) . Adopting a different approach would create inconsistencies in the law - both within the SDA and between the SDA and other discrimination legislation.

The two limbs largely overlap (so if there is any extension it is of limited effect), and the quid pro quo of having the 'or' test is that there is a further objective test where the conduct in question is not intended to harass (it should be reasonably considered as having the effect having regard to the perception of the person in question). This additional test is not found explicitly in the Directives and in that respect, some have argued that the domestic definition of harassment is tighter than the European definition.

Christian Institute

A parallel law covering sexual orientation was struck down by the Belfast High Court in September, for this reason among others. Moreover, the wider definition of harassment could render the Regulations ultra vires under the European Communities Act 1972, by which they have been promulgated. (The 1972 Act only permits Regulations to be issued to meet EU obligations - this harassment law goes beyond any obligation imposed by the EU Gender Directive).

Government Equalities Office

The harassment provision in the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 was set aside primarily on procedural grounds.

We consulted specifically in relation to harassment in respect of gender reassignment in June-Sept 2007. It may be argued that extending the existing definition of harassment on grounds of gender outside the workplace is necessary so as not to fall foul of the non-regression principle in the Gender Directive based on domestic case law on sex harassment and P v S.

In any event, the Gender Directive is a minimum harmonisation Directive - not a maximum harmonisation Directive - and the 1972 Act allows Regulations to be made not only for the purpose of implementing Community obligations, but also for the purpose of dealing with matters arising out of or related to any such obligations.

Christian Institute

Discrimination law

Religious professionals (e.g. doctors) or businessmen (e.g. printers) are open to proceedings against them under the discrimination law if they refuse a good or service (referral for a 'sex change' operation or refusing to print a transsexual rights group's magazine). A B&B which refused a double room to a male-to-female transsexual and another man would also be acting unlawfully.

Government Equalities Office

The Regulations do not oblige anyone to provide a specific service, so they will not for example oblige surgeons to carry out gender reassignment operations, or oblige a commercial printer to print information promoting the rights of any group.

But where such a service is provided - for example, a printer is known to print leaflets for demonstrations promoting rights, or a B&B service normally makes available double rooms - the Regulations will oblige the provider to make that service available on an equal basis.

Where the concern is about the perceived sexual orientation of those intending to undergo, undergoing or having undergone gender reassignment, the legal obligations are contained in the GB Sexual Orientation Regulations.

To date, no cases have been brought under the GB Sexual Orientation Regulations, and no real-life examples of material interference have been brought to our attention, but if evidence were brought forward, we would seek to reflect this in our proposals for an Equality Bill.

Christian Institute

The orthodox Christian belief is that the practice of transsexualism is sinful. The Church of England has linked transsexualism to the ancient heresy of Gnosticism (Some Issues in Human Sexuality - A Guide to the Debate, discussion document from the House of Bishops' Group on Issues in Human Sexuality, Church House, 2003, page 249).

For Christians who believe that transsexualism is wrong, the heart of the issue is conscience. In very many cases no issue will arise under the Regulations. A Christian retailer is happy to sell to anyone. A Christian café owner will serve anyone. But there will be cases of conscience where the Regulations require a Christian to endorse or promote transsexualism. In these cases the Christian has to choose between abiding by their conscience and keeping the law.

Conclusion

The harassment law infringes free speech and religious liberty; the discrimination law will infringe Christian conscience in certain circumstances. We believe the inadequate religious exception is incompatible with EU Law on fundamental rights and freedoms. We also believe that the Regulations infringe Articles 9 and 10 of the European Convention on Human Rights, which guarantee freedom of speech and the right to manifest religious belief.

Government Equalities Office

Manifestation rights under Article 9 and Article 10 rights are qualified - not absolute - and under the HRA the courts and tribunals must interpret the legislation compatibly with convention rights based on the facts of each particular case. Transsexuals also have Convention rights which must be taken into account.


 
previous page contents

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2007