The Gay and Lesbian Humanist Association has warmly welcomed the British Humanist Association’s submission to the Joint Committee on Statutory Instruments on the draft Employment Equality (Sexual Orientation) Regulations. The submission is reproduced below by kind permission of the British Humanist Association.
The British Humanist Association (BHA) is the principal organisation representing the interests of the large and growing population of ethically concerned but non-religious people living in the UK. It exists to support and represent people who seek to live good and responsible lives without religious or superstitious beliefs. It is committed to human rights and democracy, and has a long history of active engagement in work for an open and inclusive society.
While we seek to promote the Humanist lifestance as an alternative to (among others) religious beliefs, we do not seek any privilege in so doing, but rely on the persuasiveness of our arguments and the attractiveness of our position. Correspondingly, while we recognise and respect the deep commitment of other people to religious and other non-Humanist views, we reject any claims they may make to privileged positions by virtue of their beliefs.
We are therefore appalled at regulation 7(3) of the proposed Employment Equality (Sexual Orientation) Regulations.This is a drastic last-minute change from the version published for consultation, contradicts previous assurances given by ministers – e.g., by Ms Angela Eagle at a conference sponsored by Justice in 2001 – and provides unlimited scope for almost any religious organisation to discriminate against gays and lesbians, even when this is not on the basis of doctrine but merely the “strongly held religious convictions of a significant number of the religion’s followers”.
It amounts to a charter for bigots. What, one is forced to ask, is the essential difference between this exemption for the exercise of homophobia and a similar exemption for race hatred for organisations of a political kind where employing non-whites might well offend the “strongly held ... convictions of a significant number” of the organisation’s followers? That essential difference does not lie in the deplorable and immoral attitudes such legal exemptions would indulge. It lies instead in the unwillingness of the Government to confront bigotry when it comes with a religious label. The Government has strongly encouraged religious organisations – such as FaithWorks – to become involved in public services but seems incapable of distinguishing between welcome and legitimate participation on equal terms and demands for unjustified privileges on the basis of religious doctrine – or prejudice.
It is plausibly reported that this last minute change was forced into the Regulations as a result of heavy lobbying by Christian evangelical groups culminating in pressure from the Archbishops of Canterbury and York on Downing Street, and we suspect that the Government was particularly exercised by the unresolved doctrinal disputes over active homosexual relations on the part of members of the clergy. But the exemption they have provided goes immensely far beyond that. It will apply to any employment for the purposes of an organised religion, which might well include employment in any capacity by any church or other faith, or by a religious foundation such as the vast majority of voluntary schools – one in three maintained schools in England and Wales. It could also arguably be applied to numerous religious charities.
If any exemption had to be granted, we should have expected it to be limited to a transitional period of (say) five years and restricted narrowly to clergy and equivalent positions in non-Christian religions.
Our advice is, however, that any such exemption, even for a transitional period, would be in breach of the EU Directive, which in Article 4 allows the concession regarding genuine and determining occupational requirements to apply only within and not across the different “strands” of discrimination. The special provision for religious and suchlike organisations is in any case very limited, as the bold type in Article 4(2) in the quotation below shows:
Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.
We draw attention in particular to the following points:
There is no current legislation of relevance.
Given that there are numerous gay clergy already within the Church of England and that the Archbishop of Canterbury has ordained someone he says he knew was in an active gay relationship, and that the debate on Church policy is still raging, it is not possible to maintain that there is an existing “national practice”.
It cannot therefore be maintained that not being gay is a genuine or a legitimate or a justified or an occupational requirement for clergy, let alone any other employees.
In any case, the final words totally rule out any concession to discrimination on “another ground” than religion.
The Government must therefore rely on the pendant to the Article:
Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.
The Government are therefore forced into the position of arguing that gay clergy are either not acting in good faith or not acting with loyalty to the church’s ethos or both. Such a finding by the Government on behalf of the Church of England is utterly extraordinary, even potentially libellous, and goes beyond any ruling the Church itself has yet made.
On these grounds we invite the Committee to reject the Regulations so long as they contain Regulation 7(3).