Regulation 7(3) in the Employment Equality (Sexual Orientation) Regulations 2003 permits religious organisations, but nobody else, to claim an “exception for genuine occupational requirement” related to sexual orientation as distinct from a requirement to be of a particular sexual orientation. The latter exception is provided in Regulation 7(2), and may be claimed by any employer.
The Equality Bill now before Parliament proposes to alter this regulation, among others. In particular a specific definition of “the purposes of organised religion” has been added.
The adoption of the regulation in 2003 was not without controversy. I wrote extensively about this at the time and will review that history here now, for the benefit of those who were not following Thinking Anglicans six years ago.
Regulation 7(3) arose directly from a request made by the Church of England.
Here is the full text of the 23 January 2003 submission made by the Archbishops’ Council to the DTI consultation “The Way Ahead”. The crucial section reads:
…21. This does not mean that the Church challenges the principle that homosexuals should have full equality and protection before the law. On the contrary, we welcome the steps taken over recent years to combat all prejudice, to repudiate homophobic violence and to create new legal safeguards and protections. The new regulations are an important part of that process. Nevertheless, it is crucial that they do not encroach on the freedom which all religious organisations must have to set and enforce their own conduct rules in relation to those who work for and represent them.
22. What those conduct rules should be is a matter of continuing debate within the Church of England and indeed within many other Churches. The point is simply that however those internal debates are resolved, Churches and other faith-based organisations must not find themselves in a position where the law of the land is preventing them from conscientiously applying their own sincerely held doctrines and beliefs on moral issues.
23. The need to safeguard religious doctrine, belief and susceptibilities was, of course, recognised as long ago as 1975 by Section 19 of the Sex Discrimination Act. A corresponding provision was included by the Government in the Gender Reassignment Regulations of 1999. Our officials have already suggested to yours that the solution to our difficulties could be provided by a provision directly modelled on the earlier precedents.
24. We strongly urge the Government therefore to insert in part 5 of the Regulations the following provision:
“Nothing in parts II to IV of these Regulations shall render unlawful anything done for the purposes or in connection with an organised religion so as to comply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers.”
That proposal was based on what was at the time the wording of Section 19 of the Sex Discrimination Act.
The government did not accept this wording unchanged but did issue a revised draft on 7 May which included 7(3) for the first time. See here for a comparison of the two drafts. The first was what had gone out to consultation in October 2002, the second was issued on 7 May. There had been no prior notice of the changes being made to Clause 7. The text of the explanatory notes is here.
On 8 May a letter was sent by William Fittall to members of the Archbishops’ Council, members of the House of Bishops, and Diocesan Secretaries, reporting what had been achieved by Church House staff in their negotiations with the government about the Employment Equality Regulations. Here is the full text of the letter. It included this:
…The final and most difficult issue has been the implications of the draft Sexual Orientation Regulations for ourselves and other Churches and faith groups. The nub of the difficulty here is that the courts are most unlikely to make any clear distinction between orientation and behaviour. There was therefore a substantial risk that the Regulations would encroach on the freedom which all religious organisations need to determine their own conduct rules in relation to those who work for and represent them. Our concerns were shared by a number of other Churches and by the Inter-Faith Network.
The Government has moved to meet these concerns, though by adopting a different drafting approach from the one which we advocated. The Sexual Orientation Regulations now include a provision in relation to employment or professional or trade qualification ‘for purposes of an organised religion’. In such circumstances it will continue to be lawful to apply a requirement related to sexual orientation – (i) so as to comply with the doctrines of the religion, or (ii) because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly-held religious convictions of a significant number of the religion’s followers’.
We have had long and difficult discussions with government officials over the phrase ‘for purposes of an organised religion’. It will clearly provide a much greater degree of protection in relation to Church posts and officers than the earlier draft of the Regulations. But it remains to be seen how precisely the courts will interpret it, for example in relation to Church schools and other Christian organisations.
It is because of this lack of clarity and the risk of contentious and costly litigation, that our welcome for the changes which the Government has made is somewhat qualified.
On 9 June William Fittall wrote to the Joint Committee on Statutory Instruments ( JCSI), which scrutinises such documents on behalf of both houses of Parliament. The full text of his letter is reported here. He wrote:
…10. Our objectives in relation to the sexual orientation regulations are, therefore, simply put: to ensure that they do not deny faith communities a broad measure of freedom to determine what requirements in relation to sexual behaviour should apply to those who wish to serve or represent them, even though this might otherwise constitute direct or indirect discrimination in relation to sexual orientation.
11. There are, as the Committee’s questioning explored, some difficult issues here over who should be regarded as serving and representing faith communities and whether similar requirements are reasonable in relation to all of them. For some purposes the Church of England draws a distinction between its ordained priesthood and others. But we do not believe that an exemption in these regulations simply in relation to ministers of religion (including ministers of non-Christian faiths, many of whom are subject to rules on sexual behaviour no less stringent than our own) would be satisfactory. Many denominations, including our own, have large numbers of lay people who occupy key paid roles nationally or locally in the churches and their agencies, and are as a result expected to live in a manner consistent with the teachings of the church.
On Friday 14 June the JCSI reported on these regulations. They made specific criticisms of the Sexual Orientation regulations. They expressed serious doubts that this clause was lawful under the European Communities Act 1992, saying: “the body of the Directive affords no special position to religious organisations in the context of sexual orientation… (contrast religion or belief discrimination for which Article 4.2 makes special provision).” They also published various additional documents here and here. A final version of the evidence taken on 3 June can be found here.
The House of Commons Fourth Standing Committee on Delegated Legislation considered them the same day. The lengthy debate is reported verbatim, starting here. The committee eventually agreed that it had considered the regulations.
The House of Commons approved these regulations on 25 June.
The House of Lords approved these regulations on Tuesday 17 June. The two hours of debate is reported verbatim, starting here.
The Church Times carried an article about these regulations, written by me, in the issue of Friday 18 July. Here is the draft article as submitted. (The published version is sadly not available in the CT archive for 2003.)
On 21 July the National Union of Teachers announced: NUT launches legal challenge to Government sexual orientation regulations. The litigation had begun.