TUC Response on LGB goods and services consultation
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Getting Equal: Proposals to Outlaw Sexual Orientation Discrimination in the Provision of Goods and Services
Response to the Consultation by the Trades Union Congress
Introduction to the TUC response: Our Key Principles
This short introduction sets out the context in which the answers to the individual questions in the consultation are answered and the answers need to be read in conjunction with these paragraphs in order to establish the central principles that underlie the TUC position on these issues.
The TUC was deeply involved in the lobbying to ensure that the proposed regulations now the subject of consultation were included in the Equality Act 2006. It has been our fundamental position that discrimination on grounds of sexual orientation is no less unacceptable than discrimination on any other ground currently prohibited by law, and that while lesbians, gay men and bisexuals remained without protection from discrimination in any area of life, they would continue to be seen as unequal overall.
Representing 6.5 million members organised in 66 affiliated trade unions, and following the policy of TUC Congress and of the TUC LGBT Conference, and acting on the advice of its LGBT Committee, the TUC speaks on behalf of the trade union movement in welcoming the commitment to outlawing discrimination in goods, facilities and services on grounds of sexual orientation made by the Government, and the proposed regulation that will carry through this commitment.
The approach on which our response to this consultation is based is that equal treatment must mean what it says, and that no exemptions should be permitted that would reduce the impact of the proposed regulations to anything less than the level of protection provided to any other group in society. The only exception to the ban on discrimination should be provisions to allow services specifically targeted at LGB people, whether commercial or social, to be maintained. This is because the LGB community, as a community, continues to face widespread prejudice and discrimination in society. Although the climate is improving, and the lead provided by Government action is and remains a vital component of this process, prejudice remains both widespread, and sometimes deep-rooted.
The same principles apply to the TUC's view on the enforcement of the proposed regulations, where it will be essential to ensure both that the same priority is given to sexual orientation cases as to any other, and also (and critically) adequate resources, and appropriate expertise, are made available.
This response follows the order of the consultation paper and answers each question in turn. In some cases, the answers to one question are essentially the same as the answer to a previous question. In these cases, an abbreviated reply is given.
Meanings
In this response, for the sake of brevity, 'SO' stands for 'sexual orientation' and 'regulation' means the proposed new regulation that is the subject of the consultation, unless otherwise specified.
The Scope of the Regulations
Question 1: Do you agree that the new SO regulations should apply to goods, facilities and services?
Yes. If the law is to recognise the right of LGB citizens to equal treatment and if the law is to challenge commonly-held prejudices against LGB people, it is essential that LGB people should have the same protection against discrimination as is provided by the other anti-discrimination laws.
Question 2: Should the concept of goods, facilities and services have the same scope as in other equality enactments, in particular Part 2 of the Equality Act 2006?
Yes. For the same reasons given in answer to Q.1, it is essential that the protection against discrimination on grounds of sexual orientation has the same scope as is offered by the law to other groups in society, and in particular that the provisions of the Equality Act 2006 should have the same scope for both sexual orientation and for religion/belief. Failure to provide equal scope may lead to the conclusion that LGB people may have some rights, but are not entitled to equality. This was one of the primary concerns expressed at the time that the Equality Act 2006 was making its way through Parliament, when the government decided to add protection for religion/belief but not, initially, for sexual orientation. Following strong lobbying, in which the TUC and its affiliate unions played a prominent part, this omission has now been rectified. It must not be permitted to recur under any other guise in the drafting of the regulation.
Question 3: Do you agree that we should provide an exemption from the prohibition on sexual orientation discrimination so that services to meet a specific and justified need can be provided separately to different groups on the basis of their sexual orientation? What specific activities would such an exemption need to apply to?
Yes, in principle. It is right that services set up to cater for a need that is particular to, for example, gay men or lesbians, should continue to be able to function effectively. It is necessary to understand, in order to explain such exceptions, that the need for such services often arises because of the prejudice faced by LGB people in society, such that mainstream services are found to be unwelcoming or lacking in understanding. There are several types of service where users will want to be confident that they share their sexual orientation with other users or that the service provider caters particularly for their particular needs.
Such considerations will apply to some health service provision that will be specific according to sexual orientation, and to some advice and counselling services. It would apply likewise to services that provide information, support and advice to particular communities, such as LGB telephone advice services, where belonging to a particular sexual orientation might be a necessary attribute not only of service providers (who will often be volunteers) or managers, but also of users. It will also apply to purely commercial activities, in which awareness of the particular needs of LGB customers has been a significant attraction, such as holiday companies or financial services, and it is welcome that the consultation paper recognises this reality and adopts an approach that would enable such operations to continue legally, providing they do not, in making clear that their operations are designed to suit the interests of LGB customers, seek to turn away non-LGB clients.
Question 4: Do you agree that premises should be covered by the SO regulations?
Yes. For all the reasons given already, and for the particular reason that discrimination by the vendor/letter in the selling or letting of premises can be especially hurtful and have serious consequences for those affected, we believe that the regulations should provide equal protection in this area as well.
Question 5: Do you agree that an exemption should be provided for selling or letting of private dwellings as described?
Insofar as this exemption is common to all anti-discrimination law, yes. It will be important however that the exemption is tightly drafted so as to prevent abuse by prejudiced landlords working to deny LGB people the right to rent space. It should not be permissible for (say) prejudiced owners of small hotels, B&B establishments (etc.) to make superficial alterations to the arrangement of their premises or means of functioning in order to avoid their obligation not to discriminate, and the drafting of the regulation should take this possibility into account.
Question 6: Do you agree that private members' clubs should be included in the SO regulations?
Question 7: What is your view on our proposal that both private members clubs and associations should be permitted to include having a particular sexual orientation as a membership criterion, but only where that criterion is explicitly connected to the purpose for which the club has been established?
Historically, clubs, bars and social groups (for example) have come into being specifically to provide for LGB people who have felt unwelcome in existing and mainly heterosexual establishments, or who have chosen to use such places as the only way to meet others of the same orientation, or who need a safe space to share with others in pursuit of a particular activity. In many cases, the existence or otherwise of such establishments have been the bedrock of local LGB communities. We would be concerned if there were to be a risk that LGB people might be denied the choice of using such welcoming and safe environments through a wrong application of the law now under consultation. The regulations therefore need to be drafted to achieve the objective laid down in paragraphs 3.20 and 3.21 of the consultation paper.
Question 8: Do you agree that the new SO regulations should apply to public functions as well as to goods, facilities and services? Do you think that any specific additional exceptions might be needed from a prohibition on SO discrimination in the exercise of public functions?
As we have indicated in the introduction, the TUC believes that discrimination on the grounds of sexual orientation should be treated in the same way as discrimination on any other ground currently covered by legislation. Therefore, we welcome the intention of this question to cover public functions.
There are no additions that we would propose to those already listed in paragraph 3.25. This list reflects that which exists for other areas of anti-discrimination law and there is no justification for extending it in this area alone.
Education
Question 9: Do you agree that schools should be covered by the SO regulations?
Question 10: Are there any circumstances in which you consider that schools, or a part of the schools sector, should be exempted from the regulations?
Question 11: Are there any areas of activity for schools for which you consider special provision needs to be made?
The TUC warmly welcomes the proposal to extend protection against sexual orientation discrimination to cover access to, and the provision of education, in schools in both the maintained and independent sector. It believes that this must be followed through firmly and without exemptions. If this is done, it will contribute powerfully to changing the climate in far too many schools where homophobic bullying continues to be a serious problem, based in a culture that has historically not yet reached the point of making sufficient challenge to deep-rooted prejudices that have played on issues of the 'corruption of youth'. Until the understanding that LGB sexuality is as natural and normal as heterosexuality is enabled to permeate widely throughout the education system, the task of ending centuries of prejudice will continue to be an uphill struggle.
There are no circumstances in which schools, in any sector, should be exempt from the regulations. If LGB people are to be treated equally with other citizens, the role of school education is a critical factor. The prevalence of continued widespread prejudice, which is particularly pronounced among some young people of school age, will only be challenged effectively where the education system, in all its parts, makes it clear that to be lesbian, gay or bisexual is normal and natural, and no less deserving of respect. The consequences of homophobia (and transphobia) for LGBT pupils and students are recognised in the research literature as including truancy and school refusal, under-performance at school, increased risk of mental impairment, low self-esteem which is linked to more risky sexual behaviour and risk of self-harm, including attempted and successful suicide.
If bodies representing faith schools make contrary arguments, the TUC believes that they should be challenged to explain how their views conform to the Government's own targets to reduce attempted and successful suicide (for example, the Health of the Nation White Paper, 1992), how they match the constant exhortations to 'drive up standards' and they are consistent with the 'Five Outcomes for Children' set out in Every Child Matters.
Although the consultation paper refers specifically to a range of subjects in which issues of sexuality are most likely to be immediately relevant (e.g. paragraphs 3.31 and 3.32), we believe that the regulations should make it clear that such issues might be raised within a school in many other parts of the curriculum, and that the right approach to sexual orientation must be taken in the teaching of all areas. This needs to be spelt out, otherwise schools may choose to adopt the narrowest possible interpretation of their duties.
The statement in paragraph 3.33, however, causes the TUC alarm and concern, for the following reasons.
It has already been clarified by the High Court that the exemption 'for the purposes of organised religion' contained within the Employment Equality (Sexual Orientation) Regulations 2003 is to be narrowly construed to apply, in effect, to ministers of religion only. Even though the TUC believes that this exemption remains wrong (and see the next section of this response), it is nonetheless the current interpretation of the courts, but even within this interpretation there can be no justification for allowing a school with a particular faith ethos to override the law of the land by disregarding the obligation to teach that people of a different sexual orientation are equal citizens, are due equal respect and are to be treated no differently from any other person. If the purpose of schooling includes preparing young people for life as responsible adults respecting difference and diversity in society, it is quite unacceptable to suggest that when it comes to sexual orientation, this consideration no longer applies.
The TUC is aware that a number of religious organisations including those involved in education are likely to press for exemptions to be put in place, to enable them to continue to teach that homosexuality is variously inferior, or a 'sin' (etc.), according to the doctrines of their religion. While it may be difficult for schools run by some (but far from all) faith groups to reconcile their own prejudiced views with their legal obligations, that is a problem for them, created by their own interpretation of their doctrines. On principle, the law should not allow exceptions for bigotry. It is rightly not legal for schools to teach that people of other races, for example, are inferior human beings (Race Relations (Amendment) Act), or that disabled people can be treated as anything other than citizens with equal rights (Disability Discrimination Act 2005). In the spirit of the commitment to equal treatment that otherwise runs through these regulations, the only consistent application of this principle will be to deny any exemption for prejudice. Otherwise, some sections of the community will not be taught the need for equal respect for LGB people, but rather the contrary, with potentially damaging repercussions both for community relations, and for individual LGB people.
In particular, LGB pupils in such schools will continue to suffer terrible oppression. It will be particularly hard for a school to apply the provisions of the regulation concerning homophobic bullying as outlined in paragraph 3.30 if at the same time, they are allowed to teach that homosexuality is inferior (etc.).
The establishment of an exemption on these grounds will serve to send out the message that the only people allowed, legally, to discriminate on grounds of sexual orientation are those who are already prejudiced against LGB people. This would be a significant derogation from the principle of equality, all the more important in that faith schools represent a growing proportion of education provision, and that current proposals would lead to a further increase in trust schools, and it is known that faith groups would take over the running of many of them. In consequence, the offering of an exemption on grounds of homophobic doctrines would significantly worsen the overall position, it would place many LGB pupils in an extremely disadvantageous situation, and would dangerously counteract the general intention of anti-discrimination legislation to promote equality. The proposed regulations rightly deny to prejudiced hoteliers (etc.) the legal right to deny use of their facilities to LGB people, including where the reason for the prejudice is religious belief. The same principle should also apply in regard to schools.
For all the above reasons, therefore, the TUC opposes the suggestion that there should be any exemption for schools to teach anything other than that LGB people are equal and are entitled to equal treatment in all areas of life, as laid down by law. The regulation should be clear, and specific, on this point.
Religious Organisations
Question 12: Do you consider that an exemption should be provided from the regulations for some of the activities of religious organisations?
Question 13: Do you agree that these exemptions should be restricted to activities that are primarily doctrinal? Are there any other activities that you consider should be covered by an exemption, what are they and why do you consider they need to be exempted?
Paragraphs 3.36-3.38 approach this issue correctly. Services provided for the public on behalf of a public body must clearly fall within the scope of the regulations. Social and welfare services provided for a community must likewise comply with the non-discrimination provisions. Nor should activities provided by religious organisations for primarily commercial purposes be excluded, any more than any other commercial service.
The TUC does not accept that any activities of religious organisations should be exempted from the requirement not to discriminate, whether these are 'doctrinal' or for any other reason. Applying the same principle that we have argued consistently in this response that nothing in the regulation should provide LGB people with fewer rights than other groups facing discrimination are provided with by the law, we would point out that the Race Relations Act does not allow any exemption from its provisions for the activities of religious organisations, therefore there is no case for offering exemptions on the issue of sexual orientation.
It is actually the case that in many of the faiths that exist in Britain today, there are active groups of believers in that faith who are themselves LGB or T, or who are not themselves LGBT, but support those who are, and who are working to win acceptance within their particular faith group. The TUC offers its support to the work of such groups as representing the best way to bring about recognition of equality and diversity within all faith groups. Allowing any exemption is to give credence to the arguments (however 'narrowly' constrained) that it is legitimate for religious organisations to ignore the law of the land that applies to everyone else, and to undermine existing efforts to push a religious organisation to respect diversity.
Furthermore, as some of these organisations may be in receipt of public funds for various of their activities, it would be particularly grotesque that they might be permitted to teach, for alleged doctrinal reasons, a view that is opposite to, and thoroughly undermining of, the approach of Government, parliament and the law that LGB people are equal to others.
If teachers of any given faith (or indeed none) are found preaching hatred of LGB people, this is a matter that ought to be dealt with through criminal laws, either existing laws against incitement to violence, or specific laws that do not yet exist on incitement to homophobia, but should and may do so in a single equality act in the near future. If however their teaching contradicts the law that makes sexual orientation discrimination illegal without reaching such depths, then that is a problem and a contradiction for the religious organisation, and one for them to resolve. Our view is that it is not one that should be allowed for by the law, which otherwise is confirming that if one is prejudiced because of one's doctrine, then that is legal. This should not be the message given by the law.
Question 14: Do you agree that an exception should be provided for charities that provide services specifically to people because of/according to their sexual orientation?
We welcome the commitment given in paragraphs 3.39-41 to enable charities established to provide services specifically for LGB people to continue to function. This is entirely correct: the prejudice and discrimination often faced by LGB people has led to the establishment of charitable services (along with the social and support groups already dealt with under questions 6-7) that are an important part of the facilities available to LGB people, and there is a continued need for their targeted services.
Types of discrimination
Question 15: Do you agree that the SO regulations should include direct and indirect discrimination as well as victimisation? Are there any particular considerations or situations that should be taken into account in how such provisions are drafted?
Yes, the TUC agrees that the regulations applying to sexual orientation should offer the same protection as is available under all other anti-discrimination provisions. It is particularly important that the regulation covers association or assumed sexual orientation, given that it often occurs that people are attributed a particular sexual orientation on the basis of images and stereotypes, which may well not be accurate, and any subsequent discrimination must also be caught, regardless of whether the alleged sexual orientation turns out to be accurate.
Question 16: Do you agree that discriminatory practice should be included in the scope of the SO regulations?
This is a potentially important measure enabling those suffering discrimination as a result of unwritten policies (that would, if written down, breach the law) and may be widespread.
Question 17: Do you agree that discriminatory advertising should be included in the scope of the SO regulations?
Question 18: Do you agree that instructions to discriminate should be covered by the SO regulations?
Yes, in order to be consistent with the rest of the proposed protection, it will also be necessary to include both advertisements and instructions to discriminate, as proposed.
Question 19: Do you agree that the validity of contracts should be covered by the SO regulations?
Yes, it must not be legal in any matter to have provisions that allow acts of discrimination.
Enforcement
Question 20: Do you agree that the enforcement provisions for the SO regulations should match those for the other equality enactments?
Yes, enforcement is an essential accompaniment to a legal right, and it is correct that it is proposed that the same mechanisms apply in this case as in other cases of discrimination law.
Question 21: Do you have any comments on the Government's plans for how the SO regulations will be enforced and supported by the CEHR?
The creation of the CEHR offers a significant opportunity to make it clear in practice that discrimination on grounds of sexual orientation is taken as seriously as discrimination on any other ground. It is essential that, both in the drafting of the regulations themselves, as well as in mechanisms provided for their enforcement, this same equality is demonstrably maintained.
At no point in the past have LGB people had access to statutory services providing support, advice or representation to enable people to challenge discrimination. Nor will they have any such support for the twelve months between the enactment of these regulations and the promised arrival of the CEHR. During this period, it is vital that the Government acts to provide the missing support, advice and representation for LGB people to be able to claim their rights. This should certainly be done with a campaign to alert both businesses and individuals to the enactment.
Alongside this, the TUC proposes that existing agencies be equipped to provide support and advice as an interim measure for the year before the CEHR is established and that this be widely advertised. In the absence of such support, many cases of discrimination are likely to remain unchallenged through the lack of any means for individuals to enforce their rights.
The TUC has expressed elsewhere its concerns about the proposals for establishing the CEHR as they stand. In the context of LGB rights, the prime areas for anxiety are:
That intentionally, or unintentionally, a hierarchy will be established in the organisation in which some areas of discrimination are treated as more important than others, and therefore that some areas, such as sexual orientation, may receive less than a fair share of the CEHR's resources;
That a philosophy of 'economy of scale' will lead to a reduction overall in the resources allocated to the CEHR compared with those provided for the existing commissions, even though the CEHR will have taken on additional areas not already covered by a commission. Any such approach will inevitably risk the consequence of a hierarchy being established in practice inside the CEHR, whatever the intentions of the government, as resources are found to be inadequate to meet demand;
That sufficient care is taken to ensure that the CEHR, from its governing body down and through its staffing arrangements, ensures that it has authoritative and experienced persons familiar with LGB issues, and who are themselves openly recognised as LGB, as part of the staff. As in any area of discrimination, dealing with allegations of sexual orientation discrimination may well require particular sensitivities as well as the knowledge by the claimant that the person they are talking to is able to emphasise directly with them.
That given the small number of other organisations equipped to represent LGB people in their legal cases, the CEHR has sufficient resources to assist in, and a policy of, taking sexual orientation discrimination cases through the courts.
That particular attention is paid to the importance of ensuring access to CEHR support at local/regional level. This may be of special importance to LGB people who have, as already outlined, relatively fewer possible points of support and advice than other people, unless they are members of a trade union.
Ends.
For further information:
Peter Purton,
Equality & Employment Rights Department.,
Trades Union Congress
Great Russell Street
London WC1B 3 LS
020 7467 1271
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