In my earlier analyses of the Sexual Orientation Regulations, I failed to report that in addition to Clause 7(3), there is a further special exemption for “organised religion” at Clause 16 which deals with Qualifications Bodies. Clause 16(3) reads:
(3) Paragraph (1) does not apply to a professional or trade qualification for purposes of an organised religion where a requirement related to sexual orientation is applied to the qualification so as to comply with the doctrines of the religion or avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.
I’m not entirely clear what this is intended to refer to as far as the Church of England is concerned. Is ordination to be considered as a trade qualification?
The DTI guidance note says:
48. Regulation 16(3) provides an exception in relation to qualifications for purposes of an organised religion, which is similar to the exception in regulation 7 (see above), and to section 19 of the SDA. Where a qualification is for purposes of an organised religion, it allows the body to apply a requirement related to sexual orientation so as to comply with the doctrines of the religion or avoid conflicting with followers’ religious convictions. This could apply to qualifications required to be a minister of a particular religion, for example, to the extent that such a position constitutes a profession or trade for the purposes of regulation 16. Regulation 16(3) is consistent with Article 4.1 of the Directive, although it does not copy out its wording. This is because a requirement which meets the criteria defined in regulation 16(3) is necessarily a genuine and determining occupational requirement which is applied proportionately, within the meaning of Article 4.1.