House of Lords - Merits of Statutory Instruments

Select Committee on Merits of Statutory Instruments Fifteenth Report

APPENDIX 4: DRAFT SEX DISCRIMINATION ACT 1975 (AMENDMENT OF LEGISLATION) REGULATIONS 2008: EXPLANATORY INFORMATION

Letter from the Government Equalities Office

Discrimination Law Review

1. The concerns you raise relate on the one hand to the proposals for an Equality Bill contained in the Discrimination Law Review Green Paper, and on the other to the draft Sex Discrimination Act 1975 (Amendment) Regulations. The latter have been replaced by a UK-wide version which was today laid before Parliament. I shall address each of these in turn.

Equality Bill proposals

2. We are carefully considering the responses to the consultation on the Discrimination Law Review. On the question of extending specific protection from harassment in the field of goods, facilities and services, etc. and the exercise of public functions beyond the strands and areas to which it currently applies, your concerns have been noted, as have the issues raised in Weatherup J's judgment on the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 ("the Northern Ireland Regulations"). This matter remains under consideration, and the Government intends to publish a response to the consultation in due course, setting out the proposed way forward.

3. In respect of protection from discrimination on grounds of sexual orientation, the Government has taken as its starting point the balance struck in the Equality Act (Sexual Orientation) Regulations 2007 ("the GB Sexual Orientation Regulations"), which was endorsed by the Joint Committee on Human Rights.

4. As to the interpretation of regulation 16(8) of the Northern Ireland Regulations and its counterpart, regulation 14(8) of the GB Sexual Orientation Regulations, we are clear that the only obligation upon religious organisations providing a service on behalf of and under contract with a public authority is to ensure that the service in question is provided on an equal basis, irrespective of sexual orientation.

5. We are also clear that the GB Sexual Orientation Regulations do not apply to the curriculum in the abstract, but could impact on the way things are taught in schools, by reinforcing the principles that are reflected in existing statutory and non-statutory guidelines . This means that a teacher in any school will still be able to express his or her personal religious or ethical views on sexual orientation provided this is done in an appropriate manner and within a suitable context. What is unacceptable, however, and caught by these regulations, is for a teacher to turn a blind eye to homophobic bullying or to single out a lesbian, gay or bisexual pupil for criticism on the grounds of his or her sexual orientation. This effectively underscores the point in Weatherup J's judgment, on which all parties were in agreement, 'that "bullying" was unacceptable and there could be circumstances in which an explanation of the religious belief would amount to what would be commonly understood as "bullying". (para 84)

6. To date, we are only aware of one case being brought under the GB Sexual Orientation Regulations, and this case does not involve the manifestation of a religious belief. Should evidence of material interference with the freedom to manifest religious belief be brought to our attention, we will consider it when developing our proposals for an Equality Bill, while bearing in mind that, as expressed in Article 9 ECHR, the right to manifest a religious belief is a qualified right and that a balance needs to be struck between it and the rights of others not to be discriminated against. As Weatherup J also noted in respect of the Northern Ireland Regulations, "A court considering a particular case will be obliged to apply the Regulations in a compatible manner and give effect to the Convention rights." (para 65).

Implementing the EU Gender Directive

7. Your letter also expresses concern about the proposal to extend protection from harassment to people in relation to gender reassignment and in particular your belief that the religious exemption contained in the draft Sex Discrimination Act 1975 (Amendment) Regulations 2007 is too narrow. Before addressing these points, I would like to set out the context to these Regulations insofar as they apply to gender reassignment.

8. 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 (SDA) to prohibit, in the employment sphere, discrimination, and subsequently harassment, against people intending to undergo, undergoing or who have undergone gender reassignment.

9. 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 direct discrimination and harassment on grounds of gender reassignment, to the provision of goods, facilities and services and the management and disposal of premises. 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.

Application to religious organisations

10. The draft Regulations insert into the SDA section 35ZA(c). This makes clear that the provision of goods, facilities and services (not normally provided on a commercial basis) at a place … occupied or used for the purposes of an organised religion" is one of the "excluded matters", in respect of which the amended SDA does not provide protection on grounds of either gender reassignment, or sex. You will note that the reference here is to the provision of goods facilities and services, not acts of worship or devotion, which are not in any event within the meaning of "services" etc. under the Directive or the SDA, whether they take place on religious premises or not. There is therefore no need to make specific provision for such acts.

11. It is not possible to exclude from the Act the provision of goods, facilities and services by organised religions or religious organisations more generally, as the Directive does not contain an exemption allowing this (it looks to the type of service provided, not to the body providing it). Nor is it possible to introduce an exemption for individual religious believers, because the creation of an 'individual conscience clause' would render the Regulations unenforceable and therefore ineffective for the purposes of implementing the Directive.

12. However, the Regulations do not oblige anyone to provide a specific service, so they will not for example require doctors to carry out any surgical procedure to achieve gender reassignment, if they are not specialist in this area. However, as the Chief Medical Officer has confirmed that gender dysphoria is a medical condition that may need treatment and that that treatment may be carried out by the NHS, as well as privately, a doctor presented with a patient who believes they are suffering from gender dysphoria would be expected to refer that patient to a specialist. This is in line with the General Medical Council's guidance in Good Medical Practice (2006), which is clear that doctors must treat their patients with respect whatever their life choices and beliefs. They must not unfairly discriminate against them by allowing personal views to affect adversely their professional relationship with their patients or the treatment provided or arranged.

13. A small business - for example, a B&B service, or a care home - will also be required to treat its service users on an equal basis irrespective of gender reassignment status. Where the concern of those operating such a business 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.

14. The Regulations will require adoption agencies to offer the same service to all individuals or couples who apply to adopt, irrespective of whether they are planning to undergo, are undergoing or have undergone gender reassignment. This is not equivalent to a right to adopt; it is a right to undergo the same stringent assessment process as all other prospective adopters to determine whether you are suitable to provide a child with a loving, stable and permanent family. Decisions as to which parents a child should be placed with for adoption have to be taken by professionals on an individual case by case basis depending on the specific needs of the child. Ultimately it is a matter for the court to decide whether to make an adoption order in favour of particular adoptive parents.

15. Faith based adoption or fostering agencies taking advantage of the transitional arrangements under the Equality Act (Sexual Orientation) Regulations 2007 will still, until the end of 2008, be able to refer someone they perceive to be lesbian, gay or bisexual to other agencies which they believe are able to assist.

Harassment

16. Your letter also expresses concern that the draft Sex Discrimination Act (Amendment) Regulations use the same definition of harassment as that set aside in the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. However, that provision was set aside primarily on procedural grounds. The court was free to do so because there is no European Directive prohibiting discrimination and harassment on grounds of sexual orientation in the provision of goods, facilities and services.

17. The present draft Regulations, are implementing a Directive requirement. The definition of gender reassignment harassment in the SDA which currently applies in the employment field is similar to that used in legislation covering race, age, sexual orientation disability and religion or belief in employment, and race in relation to goods, facilities and services. We believe that adopting a different approach to gender reassignment in the context of goods, facilities and services would create inconsistencies in the law - both within the SDA and between the SDA and other discrimination legislation.

18. We have noted your concerns about the "extended reach" of the harassment provision, because a person needs show either an offensive environment 'or' that their dignity was violated, whereas the definition contained in the Directive requires both to be satisfied. However, as the two limbs largely overlap, any extension 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.

19. Additionally, the Gender Directive is a minimum rather than 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.

20. Turning to your specific questions of coverage, the draft harassment provision would not cover church organised acts of worship outside their premises and/or private pastoral discussions carried out in someone's home involving a Church Minister, as these would not be classed as a provision of a service to the public. We would expect the courts to construe the legislation in this way, having regard to the other services listed in the legislation and Article 9 ECHR rights. However, as always it will ultimately be up to the courts to determine its precise effect.

21. Equally, the draft Regulations would only regulate the position between the supplier (whether or not for payment) of a good, facility or service and a customer. Informal conversations between fellow shoppers, whether they are at a church bookshop or anywhere else, fall outside the scope of the SDA, the Directive and discrimination law more generally.

6 March 2008

Memorandum by the Christian Institute

Introduction

1. The Christian Institute submitted a memorandum to the Merits Committee in December last year regarding the Draft Sex Discrimination Act 1975 (Amendment) Regulations 2007, brought forward to implement the EU Gender Directive. We are grateful that the Committee passed our memorandum to the Government Equalities Office (GEO) for its response. Both the memorandum and the GEO response were subsequently included as Appendix 2 to the Committee's 5th Report of Session.

2. On 16 November 2007, The Christian Institute also wrote to [the] Head of Discrimination Law in the GEO, to raise concerns about the implementation of the EU Gender Directive. We received a response on 6 March 2008 (enclosed) and there was substantial overlap between that letter and the GEO comments in the Committee's report.

3. As the Committee will be aware, the draft Regulations were withdrawn and have now been reintroduced as the Sex Discrimination (Amendment of Legislation) Regulations 2008. The substantive provisions are largely the same, although the Regulations now apply to both Great Britain and Northern Ireland instead of just Great Britain as was formerly the case.

4. The Christian Institute remains extremely concerned about the transsexual harassment and discrimination laws introduced by the Regulations. We believe that the religious exemption provided by the Government is too narrow, that it is possible to have a much broader and more reasonable exemption, and therefore by failing to provide a more comprehensive exemption the Government is violating the rights of religious believers guaranteed by the Human Rights Act.

5. The purpose of our submission to the Merits Committee at this time is to raise issues that were not properly answered by either the GEO response included in the Committee's 5th Report or the recent letter we received.

The narrow religious exemption

6. The GEO's comments on page 31 of the 5th Report make it clear that the religious exemption was deliberately narrowed between the June draft of the Regulations and the version published in December (the same as that in the current version) in order to cover such services as those provided by church bookshops. Our concerns about the narrowing of the exemption in this way related mainly to the affect the harassment provisions could have on conversations conducted at such a venue. We raised these concerns in our previous submission (see page 32 of 5th Report). The GEO answered them but appeared to have made the assumption that we were referring to conversations between two customers. In fact, our concern relates to a conversation between a customer and a supplier.

7. A Christian who is selling books over the counter may well wish to share something of their faith with a customer as a part of their Christian witness. If a Christian shared the biblical position on transsexualism with a customer undergoing gender reassignment this may be taken to be an offensive environment sufficient to trigger a harassment complaint.

8. The freedom of religious believers to manifest their beliefs by sharing them with others has been recognised by the European Court of Human Rights in Kokkinakis v Greece. That case acknowledged that bearing Christian witness "corresponds to true evangelism, which a report drawn up in 1956 under the auspices of the World Council of Churches describes as an essential mission and a responsibility of every Christian and every Church". The Court also declared: "Bearing witness in words and deeds is bound up with the existence of religious convictions."

9. It is our contention that the application of the harassment provisions to a transaction in a Christian bookshop would be an infringement of Article 9 rights to freedom of thought, conscience and religion in conjunction with the Article 10 right to free speech. Christians in such situations will be denied the opportunity to share their faith for fear of giving offence.

10. We are aware that the right to manifest one's religion or beliefs is not absolute. However, this does not mean that it is a right to be arbitrarily trampled on. It may only be subject to such limitations as are necessary in a democratic society in pursuit of a legitimate aim. This should be considered a high threshold and is one which we submit the Government has failed to satisfy in the present case.

Summary concerns

11. In summary, the following concerns remain:

Harassment law

Church activities off-site, e.g. pastoral discussions in a person's home or a meeting in a public venue.

12. The GEO contends that pastoral conversations between a minister and an individual in that person's home will not be regarded as a 'good, facility or service' under the terms of the legislation (page 32 of the 5th Report). If this is correct, which is open to doubt, does the Government accept that a talk by a minister at a meeting in a public venue could contravene the harassment law? (As the GEO has accepted, the definition of harassment goes beyond the EU Directive (page 8 of the 5th Report).)

Discussions between service provider and customer at, for example, a church bookstall, Christian bookshop or café could be caught by the harassment law.

13. The Government is intent on overriding religious liberty and free speech in this way (see above). It is simply not correct that the harassment law in the Northern Ireland Sexual Orientation Regulations was set aside "primarily on procedural grounds" (page 33 of the 5th Report). The procedural defects constituted only one of the five reasons given by Justice Weatherup; others included human rights concerns.

Discrimination law

Does the religious exemption protect Christian care homes and conference centres which on the grounds of their Christian ethos cannot provide residential accommodation to a practising transsexual? Their position is not at all clear.

Christians in professions or in business, e.g. medical professionals asked to participate in gender reassignment, B&B owners asked to give a double room to two men (one of whom is a male-female transsexual), or wedding photographers asked to photograph the wedding of two such people, are specifically excluded from protection.

14. It is accepted that the Regulations will not compel someone to provide a service they do not already supply. However, the GEO continues to deny any protection to religious believers in professions or businesses. This is contrary to the approach taken by Mr Justice Weatherup in his judgment on the Northern Ireland Sexual Orientation Regulations.

15. Justice Weatherup cited with approval the Canadian case of Ontario Human Rights Commission v. Brockie [2002] 22 DLR (4th) 174 which involved a Christian printer, Mr Brockie. Mr Brockie had refused to print letterhead for an organisation, Archives, which promoted publications, information and records by and about homosexuals. It was held in the Ontario Superior Court of Justice that Mr Brockie should print the letterhead but he could not be required "…to print material of a nature that could reasonably be considered to be in direct conflict with the core elements of his religious beliefs or creed." (para. 88)

16. Mr Justice Weatherup noted: "On the above approach the believer is not required to undertake action that promotes that which the essence of the belief teaches to be wrong. Even after consideration of the fact specific case of Mr Brockie some further definition would be required as to the precise material that he could refuse to print. The test for permitted action is objective in that it is only material that could 'reasonably' be considered to be in direct conflict that he may refuse to print." (para. 88)

17. The judge continued: "That he [Mr Brockie] was engaged in commercial activity was not a complete bar to protection of religious belief. Such an approach is clearly not consistent with the loss of protection for a religious organisation whose sole or main purpose is commercial, as provided by regulation 16(2)(a)." (para. 88)

18. The Brockie case indicates that even in the realm of commercial activity, sometimes considered to be at the periphery of protection, religious believers have rights guaranteed by the Convention. This is particularly significant. It demonstrates that a 'commercial bar' can be incompatible with the Convention. It should therefore be removed. Furthermore, if Christians have such rights in the commercial arena, how much more the Government should respect these rights in other areas.

19. There is no logical reason for lack of protection for individual Christians (professionals, businessmen etc) in goods and services discrimination laws in the UK, especially as individuals are just as likely to face hostile litigation as an organisation. Under the Human Rights Act, UK legislation is meant to secure the rights of individuals as well as organisations. Indeed, government has the protection of one class of individuals in mind in bringing forward anti-discrimination legislation, so it should be mindful of individuals who could be adversely affected by such laws.

The Directive permits a broader exemption

18. The Government argues (page 33 of the 5th Report) that the Directive does not permit a broader religious exemption than that included in the draft Regulations. We do not accept this argument. Case law is clear that the Government has flexibility in implementing such EU Directives, and as the GEO itself has said (page 35 of the 5th Report):

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.

19. The Directive does not dictate the scope of the religious exemption but clearly states the importance of freedom of religion by mentioning it in paragraph 3 of its Preamble. We believe that the Government's approach to implementing the Directive has neglected the importance of religious freedom and has not given proper consideration to how this right can be protected.

20. The scope for domestic provisions including elements not expressly mentioned in the Directive is illustrated by the GEO itself. When referring to the definition of harassment (page 33 of the 5th Report) the GEO contends that, although only one limb of the harassment test needs to be satisfied under domestic law as against both in the Directive, there is the "quid pro quo" of a further objective test which is "not found explicitly in the Directives". The GEO goes on to observe that "some have argued that the domestic definition of harassment is tighter than the European definition". This constitutes a recognition and acceptance of the fact that the domestic definition of harassment may be different to the European definition. If this can be true of harassment, there is no reason why this could not be true of a religious exemption.

21. We believe that the Directive leaves the scope of a religious exemption up to national Governments, with the obvious intention that this would be done in accordance with human rights obligations. In this respect, the UK Government has conspicuously failed in its duty to strike the proper balance between the rights of transsexuals and the rights of religious believers.

12 March 2008

Memorandum by the Lawyers' Christian Fellowship

1. We draw the special attention of the House to the Regulations according to the Merits Committee's terms of reference as the instrument may:

Inappropriately implement European Union legislation;

Raise issues of political or legal interest likely to be of interest to the House.

2. The regulations dealing with trans-sexuality will have important and far-reaching implications not only in themselves, but will also colour and set a precedent for a significant number of areas of discrimination in the forthcoming Single Equalities Bill, yet there is no opportunity for Parliamentary debate and amendment. The regulations raise important issues of fundamental rights on freedom of speech and freedom of religion.

3. These regulations and the proposed further draft Sex Discrimination Act 1975 (Amendment) Regulations 2008[18] should be considered within the context and coherence of a Single Equalities Bill, with proper Parliamentary scrutiny. The need to conform to a deadline of 27^th December 2007 (which has been missed in order to allow for the drafting of GB-wide regulations including Northern Ireland) is questionable, since although these draft regulations seek to implement the European Gender Directive there is no explicit European Directive outlawing goods, services and facilities for trans-sexuality.[19]

4. In our opinion, if there had been such an explicit Directive for trans-sexuality or for sexual orientation a closer examination would have been made of the issues of freedom of speech and religion with a focus upon the relatively small areas in the provision of goods, services and facilities for trans-sexuals where religious beliefs conflict. This conflict does not arise in the normal provision of goods, services or facilities but only arises for the minority of circumstances where the object is that of promoting or encouraging trans-sexuality, which goes against the religious conscience. The Gender Directive is drafted and based upon discrimination between men and women only and not on sexual orientation or trans-sexuality. There is an important difference here because the religious conflicts of conscience do not arise in relation to discrimination between men and women but may do so in relation to sexual orientation and trans-sexuality. Also, European Directives in the past have paid special attention to Northern Ireland.[20]

5. For the above reasons and due to the failure to consult properly, we would request the Committee to ask the Secretary of State to withdraw this instrument to await the Single Equalities Bill as controversial matters on fundamental rights and freedoms should be dealt with in primary legislation.

Background

6. The Explanatory memorandum explains that the instrument implements the European Gender Directive in Great Britain and Northern Ireland.[21]

7. The instrument outlaws discrimination in the access to and supply of goods, facilities and services for trans-sexuals.

8. The instrument fails to implement the European Directive and implement European Union legislation appropriately:

Freedom of Religion exception too narrow

9. Recital 3 of the European Gender Directive makes it clear that when prohibiting discrimination, it is important to respect other fundamental rights and freedoms including the protection of private and family life and transactions carried out in that context and also the freedom of religion.[22]

10. In our opinion, the draft regulations and the explanations in the Explanatory memorandum fail to respect the freedom to religion and do not strike the correct balance. The exception for religion is too narrowly drawn and fails to meet the concerns raised by the respondents from Northern Ireland to this issue and the concerns of the Christian Institute in the fifth report to this Committee[23].

11. In over 200 of the 243 responses to the Northern Ireland consultation (over 82%), the issues raised were:

"the need for strong exemptions for religious activities which extend beyond church premises; concern about the proposals potentially restricting religious freedom and freedom of speech; fear of litigation for Christians sharing their faith and its moral teachings with others; and strongly held views that freedom to share religious beliefs is an essential part of the freedom to manifest a religious belief."

These were issues also said to be raised by the Christian Institute.[24]

12. The exception for the provision of goods, facilities or services are only for those (not normally provided on a commercial basis) at a place (permanently or for he time being) occupied or used for the purposes of an organised religion. This is too narrow an exception for the freedom of religion both for discrimination and for harassment. This compares with the wider exception within the parallel sexual orientation regulations which allow religious organisations to restrict activities on the basis of the doctrine or the strongly-held religious beliefs of a significant number of its followers.[25]

13. Article 9 of the Human Rights Act on freedom of thought, conscience and religion is about allowing people to exercise their religious freedom, not about stopping them from expressing their religion. Manifesting religion includes practising it. The limitations allowed are only those necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. In addition, Section 13 of the Human Rights Act 1998 refers to the need for a court to have particular regard to freedom thought, conscience and religion.[26]

Not including 'commercial' in the freedom of religion exception

14. The fact that the exception for religion does not also include activities performed on a 'commercial basis' cannot be justified. Recital 3 of the European Gender Directive places no such restrictions. In addition, Article 9 also applies generally in a public or private place and there is no commercial/non-commercial distinction made in Articles 9 or 10 of the European Convention for freedom of religion and freedom of speech. Freedom of religion is not restricted to non-commercial activities.[27]

15. The regulations as drafted mean that Christian Bed and Breakfasts, Church booksellers, Christian printers, and Christian photographers may all potentially be placed in circumstances where they have legal obligations in "comparable situations", which may mean acting against their religious conscience or facing potential allegations of discrimination and/or harassment. For example, a Christian printer would not object to printing material for a person who was trans-sexual but would object on the grounds of orthodox religious belief, to being required to print material that promoted trans-sexuality.

16. It is useful to consider the Northern Ireland Judicial review case on the parallel sexual orientation regulations (hereinafter called "NISORJD"). In that case[28] it was recognised that the manifestation of religion by teaching, practice and observance in maintaining the choice not to accept, endorse or encourage homosexuality, engaged Article 9 of the European Convention as regards the freedom of thought, conscience and religion.

17. The NISORJD considered the Canadian case of a printer called Mr. Brockie. He acted for customers who were homosexuals but he would not assist in the dissemination of information intended to spread the acceptance of a gay or lesbian lifestyle. The judgment of the Court found that there had been interference with Mr. Brockie's freedom of religion in that he was being forced to act in a manner contrary to his religious belief. The NISORJD recommended the approach adopted in the Brockie case in relation to such examples "…in relation to the provision of goods, facilities and services, the use of premises and the provision of public services."[29]

18. In consideration of the above matters, the exception for religion in this fourth draft of the regulations is far too narrow. At the very least it is appropriate for this draft to remove the words in brackets to the exception for religion of "(not normally provided on a commercial basis)" and to change the draft back to the original first two drafts of these regulations. This would then extend the exception to a place occupied or used for the purposes of an organised religion such as a Church bookshop. However, this still would not cover the Christian printer, so it is appropriate to further widen this exception.

19. In addition, the current exception means that individual religious beliefs are not respected once an individual is not within the confines of this restricted exception in the draft regulations (see note 4). Again, this is not a limitation imposed by Recital 3 or by Articles 9 and 10 of the European Convention.

20. A suggestion to overcome this problem as well as the change proposed in note 8, would be at the end of this exception after the words "organised religion" to insert "or at any place, in circumstances where it is reasonable to restrict the provision of goods, facilities or services so as to avoid conflicting with a person's strongly held religious beliefs."

Harassment

21. It is of serious concern that the narrowly-drawn exception for religion will mean that the harassment provisions will apply to all of the above examples (see points 6. and 9. above). The Getting Equal Consultation in Great Britain on the parallel Sexual Orientation Regulations mentioned that when harassment was debated by Parliament in the House of Lords during the passage of the Equality Act 2006, there was considerable concern about establishing a threshold of what would constitute harassment by a goods or service provider; about extending harassment beyond the employment sphere with added concerns on the balancing implications for freedom of speech, and that it was best to wait for the Single Equalities Bill, to ensure a coherent approach.[30]

22. Again, these Regulations and the proposed forthcoming regulations (the draft Sex Discrimination Act 1975 (Amendment) Regulations 2008) will together adopt a non-coherent approach to discrimination and harassment matters and will not wait for the Single Equalities Bill.

23. There were no harassment provisions in the Sexual Orientation Regulations (SORs) for Great Britain (excluding Northern Ireland) for goods, facilities and services, and the NI SORJD quashed the provisions in Northern Ireland. The Explanatory Memorandum to this instrument stated that harassment was set aside and that, "that ruling turned on the adequacy of the Consultation on the draft Regulations"[31] and that "the harassment provision in the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 was set aside primarily on procedural grounds"[32]. An examination of the actual case reveals that it was not just on procedural grounds but also on the basis of the harassment provisions themselves and the religious belief considerations.

24. To quote from Weatherup, J in the NISORJD case, "I found an absence of proper consultation on the harassment provisions. By reason of that finding and of the extended reach of the harassment provisions beyond that of discrimination and statutory harassment, the wider definition of harassment than that appearing in the European Directive, the concerns of the Joint Committee and the added consideration required when the offending matter is grounded in religious belief, the harassment provisions in the Regulations will be quashed."[33]

25. The wider definition of harassment referred to in that case (and not corrected in these Regulations) is because in Article 2(c), the European Gender Directive definition of harassment uses the conjunctive "and" after the reference to violating the dignity of a person, whereas the Sexual Orientation Regulations and these regulations use the disjunctive "or".

26. In terms of the question of making amendments to these draft regulations to bring them in line with the European Gender Directive, it has been argued by the Government Equalities Officer that this harassment definition is the same as that used in the employment sphere and would create inconsistencies in the law.[34] However, amendments are made within these draft regulations in relation to other matters to bring them into line with the European Gender Directive. For example, amendments on exceptions to bring them in line with Article 3(3) of the Gender Directive for education and the context of media.[35] Therefore there is no good reason why in this part of the European Directive, on a narrower harassment definition specifically for goods, facilities and services, replacing "or" with "and" should not be amended.

27. It is submitted that like the parallel Sexual Orientation Regulations, it would be far better to have no harassment provisions at all in these draft regulations. Harassment on top of discrimination does not operate at the level of minimal interference with the manifestation of religion. The subjective nature of such harassment provisions and their implications for both free speech and freedom of religion are of real concern here.

Issues of privacy

28. Part of paragraph 8 of Schedules 1 and 2, looks at single-sex provision of goods, facilities or services, occupied or used for the purposes of religion and being restricted to men. This appears to be drafted on a variation of the Sex Discrimination Act 1975 which is based on discrimination only on the basis of sex (men/women) rather than a consideration of sexual orientation or trans-sexuality. It would appear that paragraph 8 needs to add "or women" after the word "men" in (1B). Trans-sexuals may undergo treatment to change from male to female or vice versa. This may be just as much a concern in a nunnery as a monastery and for women as well as men.

29. This issue of privacy and embarrassment may be a general issue for the whole of paragraph 8. This seems to have been given more consideration in the 1999 regulations in relation to gender reassignment (trans-sexuality) for employment matters on supplementary genuine occupational matters and accommodation-sharing, but does not appear to have been fully considered here. It is relevant to both women and men not just to men.[36]

Failure to consult properly

30. The first draft Sex Discrimination Act 1975 (Amendment) Regulations were posted on the website on 12 June 2007 with the second draft on 25 June 2007.[37] A third draft of the Sex Discrimination Act 1975 (Amendment) Regulations 2007 was laid before Parliament on 28 November 2007 and is still on the GEO website on 12 March 2008. [38]This is the fourth draft of these regulations laid on 6 March 2008, which replace the Sex Discrimination Act 1975 (Amendment) Regulations 2007. These draft regulations now include Northern Ireland.[39]

31. The public consultation on these Regulations for Great Britain (excluding Northern Ireland) was part of the general consultation on the Discrimination Law Review Single Equalities Bill which ran from 12 June to 4September 2007.[40]

32. The Discrimination Law Review Consultation received around 4,000 responses showing the depth of public interest in this issue and in terms of what is happening now [41] The GEO/Women and Equality Unit link states:

Officials are currently working through the responses and will advise Ministers as soon as possible so they can take decisions in the light of the consultation. We are intending to publish a Government response to this consultation later this year, which will outline our proposals for what will be included in the Bill in greater detail.

33. This means as far as the public and the 4,000 respondents are concerned, as at 12 March 2008, there has been no response to this consultation, even if mention has been made of the need for earlier implementation of the regulations. The Explanatory Memorandum on the OPSI website published with the instrument on 10 March 2008 only provides a partial explanation of the consultation responses to the draft regulations and does not disseminate the information to the public on that legal website in that format.

34. This failure to give a public response to the consultations on these draft regulations before they have been published, contrasts sharply with the Explanatory Memorandum of these regulations which refers to Article 15 of the European Gender Directive on consultation matters and the need to disseminate information for the attention of persons concerned by appropriate means[42].

35. In Northern Ireland the consultation ran from 30 July to 21 September 2007.[43] The first Minister and deputy first Minister website says the implementation date is 21 December 2007, but again there are no public consultation responses given or any indication that the draft regulations are proceeding.

36. There do appear to be some significant differences between these regulations and the Northern Ireland draft of 3 July, which was the one consulted upon. For example, Schedule 2 for the organised religion exception has added the words "(not normally provided on a commercial basis)" and the current regulations under "excluded matters for Acts done under statutory authority" (including the religious exception), seem to have been changed. Also the paragraphs on charities and voluntary bodies have been added to.

37. The Explanatory notes to the draft regulations are too brief and in the area of "acts done under statutory authority", need to provide a much more comprehensive explanation of the changes and of their effects, particularly as it is of concern to note that this currently says this provision removes the statutory authority defence in the areas with which the Directive is concerned.

38. The parallel sexual orientation regulations have a necessary "statutory requirements" exception. Whilst this may not be equivalent to the aforementioned provision on statutory matters, it would seem an important and appropriate measure to have in such regulations. [44]

39. There are further reasons why this should be dealt with in the Single Equalities Bill. For example, it is of concern to note that in relation to Northern Ireland point 7.4 of the Explanatory Memorandum states that:

40. Although the Northern Ireland Assembly has competence to legislate on this devolved matter, because the First Minister did not agree to the inclusion of references to transgender or gender reassignment in the Northern Ireland Regulations, the First Minister and Deputy First Minister could not reach joint agreement on all of the policy proposals to implement the Gender Directive.[45]

Charities and voluntary bodies

41. Charities and voluntary bodies have an exception to allow for positive measures to combat the disadvantage linked to sex. Whilst Article 6 of the Gender Directive allows for a disadvantage linked to sex[46], it does not state to what this should apply. The real danger of positive discrimination is that it can end up being reverse discrimination.

42. The parallel Sexual Orientation Regulations appear to have a more balanced and non-discriminatory approach for charities and to refer to an allowance for a particular sexual orientation.[47] There is real concern here in these Regulations about the implications for traditional family charities and/or religious charities in relation to religious beliefs on holy matrimony/ Christian marriage. This would leave only the proportionate means test of "achieving a legitimate aim".

The Gender Directive and the distinction between employment and goods, facilities and services

43. The Gender Directive on goods, facilities and services in Article 3(4) states that this shall not apply to matters of employment and occupation.[48] Whilst this may be to provide a distinction between employment services and other services, there are separate European Directives on employment matters and there is not necessarily any carry over.

44. The reference to trans-sexuality for Gender Directive (2004/113/EC) in Article 3 on scope, is only to be found in the Council minutes of the Directive, and that recalls the case of P v S and Cornwall County Council (C-13/94), which is an employment case and in particular recalls point 20 of the judgment, which states that the extension to trans-sexuality for discrimination (referring to the Employment Directives) takes account of the nature of the rights it seeks to safeguard. In our opinion, the nature of the rights are in the employment field not in goods, facilities or services and this case cannot be assumed to have wider applicability.[49]

Concluding comment

45. For the above reasons there is no imperative to implement these regulations for trans-sexuality by 27 December 2007 or as soon as possible thereafter, and such matters would be best dealt with in a coherent way with more Parliamentary accountability and scrutiny as part of the Single Equalities Bill.

March 2008

18 See points 7.6 to 7.8, which suggest there will be these regulations and further proposed regulations http://www.opsi.gov.uk/si/si2008/draft/em/ukdsiem_9780110811048_en.pdf Back

19 See http://register.consilium.eu.int/pdf/en/04/st13/st13369.en04.pdf the reference to trans-sexuality is only in the Council minutes of the 2004/113/EC Directive and refers to the case of P v S and Cornwall County Council, which is an employment case and to point 20 of that judgement, which states that it relates to the nature of the rights. Back

20 Recital (34). The need to promote peace and reconciliation between the major communities in Northern Ireland necessitates the incorporation of particular provisions into this Directive. See also Article 15 for the employment of police and teachers 2000/78/EC: http://eur-lex.europa.eu/LexUriServ/site/en/oj/2000/l_303/l_30320001202en00160022.pdf. Back

21 See 4.1. Explanatory memorandum: http://www.opsi.gov.uk/si/si2008/draft/em/ukdsiem_9780110811048_en.pdf Back

22 See European Directive Recital (3) 2004/113/EC: http://www.equalities.gov.uk/publications/dir2004_113_ec.pdf Back

23 See Appendix 2: http://www.publications.parliament.uk/pa/ld200708/ldselect/ldmerit/24/24.pdf.

See 7.26-7.28 and 7.32 of the Explanatory memorandum. http://www.opsi.gov.uk/si/si2008/draft/em/ukdsiem_9780110811048_en.pdf Back

24 See 7.31 and 7.32 of the Explanatory notes: http://www.opsi.gov.uk/si/si2008/draft/em/ukdsiem_9780110811048_en.pdf.A total of 243 responses were received, of which 211 were from individuals and 13 were from churches and church-based groups. The comment is made that the over 200 were "in the form of a single- issue campaign" but this must have been from separate individuals making an effort to respond, showing the depth of their individual concern and since reference was made to the main issues, this means that a number of issues were raised by these individual responses. No separate comment is given on the opinions of the 13 churches and church-based groups who may also have been concerned about these main and other issues. This shows that the vast majority of responses were from those with religious concerns. Back

25 See regulation 14: http://www.opsi.gov.uk/si/si2007/uksi_20071263_en_1#l1g14. Back

26 See Article 9: http://www.opsi.gov.uk/ACTS/acts1998/ukpga_19980042_en_3#sch1. Back

27 See http://www.opsi.gov.uk/acts/acts1998/ukpga_19980042_en_3#sch1. Back