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.
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