TUC challenges new sexual orientation discrimination laws

At the end of September 2003 the TUC announced that it is to co-ordinate a union-backed legal challenge to new Government regulations on sexual orientation. The new regulations come into force in December 2003. The TUC believes that although the regulations are designed to prevent discrimination they will actually allow pension schemes and religious organisations to continue to discriminate against lesbian and gay workers.

The Regulations will allow discrimination if, being of a particular sexual orientation is ‘a genuine and determining occupational requirement’, and it is ‘proportionate’ to apply that requirement in the particular case. The TUC are concerned about regulation 7(3) as this contains a more specific exception applicable only to employment which is ‘for purposes of an organised religion’. The reference to regulation 7(3) is to that regulation within Employment Equality (Sexual Orientation) Regulations 2003.

The employer may apply a requirement as to sexual orientation ‘to comply with the doctrines of the religion’, or ‘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’.

The TUC’s point is that under Regulation 7(3) employers will effectively be able to prevent gay, lesbian, or bisexual people from working for any school, voluntary organisation, charity, or private company with a religious ethos.

2020 review

The TUC challenge above was to the proposed Employment Equality (Sexual Orientation) Regulations 2003. That regulation came into force despite the protests. Thereafter, and in the run up to the implementation of the Equality Act 2010 there was considerable lobbying by those for and against the religious exemptions with both sides holding strong views.

The new Act maintained the employment exception for organised religions largely in the form enacted in regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003. Organised religions, therefore, enjoy a specific regulation that allows them more latitude than other employers to discriminate on grounds related to sexual orientation. Specifically, unlike other employers, who are only able to apply a requirement to “have” a particular sexual orientation, organised religions can apply a requirement “related” to sexual orientation. In addition, organised religions, unlike other employers, are not required to demonstrate that applying a requirement “is a proportionate means of achieving a legitimate aim”.

The law is currently found in The Equality Act 2010, sch. 9, pt. 1, para. 2. The religious exception that permits an employer to apply a “requirement related to sexual orientation” under certain circumstances is grouped with the following other permissible requirements: “to be of a particular sex”; “not to be a transsexual person”; “not to be married or a civil partner”; “not to be married to a person of the same sex”; “not to be married to, or the civil partner of, a person who has a living former spouse or civil partner”; and a “requirement relating to circumstances in which a marriage or civil partnership came to an end”. Several of these requirements are relevant to organised religions that wish to discriminate on the grounds of sexual orientation.