The Equality Bill 2008-9 and church responses to it

Abstract

The Equality Bill 2008-2009, which will extend both to England and Wales, and to Scotland, covers age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It also requires public authorities to do more to tackle the effects of socio-economic disadvantage. The Bill has received a hostile response among some religious groups, while the response of the large churches (including the Church of England) has been to welcome its principal aims while contesting aspects of its detail - particularly in terms of lobbying for opt-outs and provisions which would allow continued discrimination on grounds of sexuality and gender by faith bodies on grounds of 'upholding beliefs'. In this paper, Savitri Hensman assesses the issues and suggests that the churches need to move forward positively, on theological and practical grounds, in affirming comprehensive equalities in the public sphere. She also tackles the harm that discrimination and inequality causes, not least to the most vulnerable and those suffering prejudice.

Promoting equality is essential for individuals to fulfil their potential, for the creation of a cohesive society and for a strong economy. A substantial body of equality legislation has been introduced over the last four decades, protecting millions of people from discrimination and promoting greater equality. But the legislation has become complex and hard to understand. The Equality Bill will simplify and strengthen the law. - Government rubric [1]

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1. Legislative background and commentary

An Equality Bill [2], aimed at strengthening protection against discrimination and social inequality, is going through Parliament. [3]

The Bill will extend both to England and Wales, and to Scotland. A Legislative Consent Motion will be sought in relation to powers for Scottish Ministers to impose specific public sector duties on public bodies in Scotland and possibly in relation to other devolved matters. Similar powers will be provided for Welsh Ministers in relation to public bodies in Wales.

Northern Ireland has a separate body of discrimination law and is in the process of considering whether and when to take forward parallel legislation. (Proposals will be published on 15 June 2009, and Ekklesia is monitoring this situation also.)

Supplementary documents, including ‘A Fairer Future- The Equality Bill and other action to make equality a reality’, an Equality Impact Assessment, an easy read version for people with sight restrictions, ‘A Fairer Future’ (Wales), ‘Assessing the Impact of a Multiple Discrimination Provision’ and a Joint Committee on Human Rights (JCHR) Memo are also available as download documents. [4]

The Equality Bill 2008-2009 covers age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It also requires public authorities to do more to tackle the effects of socio-economic disadvantage.

There are some limited situations when religious institutions will still be allowed to discriminate – for instance they can refuse to employ ministers who are women, married or gay – but, in the current wording of the Bill, there are fewer loopholes. Community workers employed by faith-based organisations, for instance, will be protected from discrimination.

In February 2009 Ekklesia published a briefing document on the definition and application of/to ‘religion or belief’ in previous recent equality and non-discrimination legislation and the European and international frameworks. [5] We have commented on the wider human rights concept in a briefing paper [6], a series of articles [7] and a short assessment [8].

2. Responses from faith bodies

Aspects of the proposed law have been criticised by church leaders, who have claimed that they may interfere with religious freedom, though their views do not always reflect the attitude of people of faith at a grassroots level. This throws light on the concerns of religious institutions and their role in public life.

At a national as well as local level, some churches and other faith-based bodies are generally in favour of promoting fairness for minorities and vulnerable sections of society. However, public awareness of this may be drowned out by vocal protests against state interference in the freedom of religious groups to discriminate.

Campaigns by those afraid they will get into trouble because of stronger equality laws often disregard the actual experience of people damaged by being treated as less than fully human, and may in the long term further undermine the position of religion in secular circles. Nevertheless there are many people of faith who have been active in promoting greater equality.


3. Discrimination – a real problem

‘They called me “queer” because I never played football and hung around with girls. I got beaten up and had my face slashed. The teachers didn’t know how to deal with it. I had to leave school because of the threats.’

‘I just felt like I didn’t belong. Not ever.’

Twenty-five years ago, research by Lorraine Trenchard and Hugh Warren for the London Gay Teenage Group threw more light on the sometimes harrowing experiences of young lesbians and gay men. While some had positive experiences, others suffered through lack of accurate information, prejudice and victimisation. One-fifth of the participants had attempted suicide. Other research around that time, such as that of Michael Burbidge and Jonathan Walters for the Joint Council for Gay Teenagers, told a similar story. [9]

At that time, though some laws existed to prevent discrimination on grounds of ethnicity and gender, these were not fully effective. Against other forms of unjust treatment, for instance on grounds of disability, age and sexual orientation, there was little protection in the law, though some public authorities, employers and service providers had a more enlightened attitude. Socio-economic inequality also blighted many lives.

While children and adolescents were the most obviously vulnerable, adults too were at times deeply hurt by discrimination not only in practical terms but also emotionally and spiritually. While many were used to shrugging off threats and insults and adapting to hardships, sometimes a particular experience could get under their guard, piercing through their shell.

By then, after decades of unsuccessful attempts by therapists to change people’s sexual orientation, reputable professionals had largely given up on such practices. But some organisations tried to ‘counsel’ people into heterosexuality, usually with damaging consequences. ‘Craig’s’ account on a website gives a flavour of an experience which was, unfortunately, far from unique. [10]

‘A friend told me about this preacher from abroad who would be speaking at the local church. Interested, I went to this church and it had a profound effect on me.’ He described the pastor’s attempts to ‘counsel’ him: ‘a great deal of what he called counselling began which consisted of me in one chair and him, his wife and an elder from the church around me… I was told that homosexuals – whether they practise or not – are possessed by demons… I was quite a sensitive young man – I can’t stress that enough – and if I’m honest a very naïve young man. I became convinced of what they were saying and the process that resulted was one of tremendous guilt and the Pastor’s answer to this was the demon had to be removed… Then the pastor suggested I have an exorcism. I agreed to it.’ In the end, he left the church, but later ‘the religious side of things had one final fling and I wound up in a psychiatric ward. I was suffering very badly from depression and I tried to kill myself.’

Supposedly religious reasons were also sometimes used to try to justify the oppression of women and disabled people. It was not only ‘mainstream’ faiths which did this: in some New Age circles, for instance, there was a popular belief that if people failed to ‘heal their lives’ it was their own fault. However faith was a source of strength to some who campaigned for justice for all.

In the 1980s, there was a backlash against attempts by local councils and others to counter discrimination. While these were sometimes clumsily done, they had an important purpose. However some newspapers and the government of the day treated them largely as an interference with freedom, ridiculing or attacking them.

Problems such as domestic violence were often regarded as a private matter in which the state should not interfere, though attitudes were changing and there was more awareness of the need to listen to those on the receiving end of abuse, not just those dishing it out to others.

4. Examining the situation today

Today, the situation is far better in many ways. The law and social attitudes have progressed, with greater protection on a range of grounds. There is wide recognition of the dangers of institutionalised racism and other ways in which systems, not just individuals, may humiliate or exclude people.

Yet stark socio-economic inequality and hostility to migrants are serious social problems, and there are fears that the recession will make things worse, especially for women. And homophobia continues to take its toll. Research published by Stonewall in 2009 found that nine-tenths of secondary school teachers and two-fifths of primary school teachers were aware that children and young people, regardless of their sexual orientation, were experiencing homophobic bullying, name calling or harassment in their schools. [11]

Opponents of greater equality for lesbian, gay, bisexual and trans (LGBT) people have sometimes sought to justify this on religious grounds. For example in 2006 some firefighters faced disciplinary action because they refused to give out fire safety leaflets to marchers at a Glasgow LGBT event. The Roman Catholic Archbishop spoke out in their favour: “The duty to obey one's conscience is a higher duty than that of obeying orders”. The behaviour of adoption agencies was another controversial issue. [12]

In 2007 an Employment Tribunal found that the Bishop of Hereford had unlawfully discriminated against John Reaney, an outstanding candidate for a youth work post who was gay though currently celibate. He was turned down after prolonged and humiliating questioning by the Church of England bishop which left him ‘very embarrassed and extremely upset’ and feeling like ‘a total waste of space’.

However the tribunal did not rule out the possibility of banning partnered gays and lesbians from similar non-clergy positions in future, and the Archbishops' Council afterwards expressed satisfaction that churches and other religious organisations continued to enjoy “important protection” in “ensuring that their recruitment policies can reflect the organisation's beliefs”. [13]

At the end of 2008 an employment appeal tribunal made it clear that people in public service could not pick and choose whom they served when it found against an Islington Council registrar, Lilian Ladele, who had refused to conduct civil partnerships supposedly on the grounds of her Christian beliefs. The right to practise one’s own faith does not amount to being free to abandon one’s duties. [14]

The practical consequences if this were not the case would be grave. If, on religious grounds, a registrar could refuse to register marriages in which one of the partners had been previously divorced, a police officer who was teetotal himself could refuse to break up a fight in a pub or a vegetarian paramedic could excuse herself from going to the aid of someone choking on a hamburger, chaos would result. Indeed many would believe that the most basic religious duty – humility before the Divine and compassion for others – would be neglected.

5. Objections to the Equality Bill

Unsurprisingly, some newspapers and organisations are critical of aspects of the Equality Bill, which seeks to pull together and clarify a range of laws on equality issues, strengthen protection against discrimination and promote equality. “The ‘Equalities’ Bill is something straight out of George Orwell’s novel 1984, which painted a terrifying vision of Britain under totalitarian socialist rule,” according to Sunday Express columnist Leo McKinstry. “Tradition, masculinity, ¬social cohesion, heritage and patriotism are all sources of shame in Labour’s brave new world.” [15]

While hard-line lobbying groups complaining of ‘persecution’ of Christians have been vocal, [16], criticisms by recognised public religious bodies have been rather more moderate, tending to focus on the attempt in the Bill to clear up confusion about the strictly limited circumstances in which they and their followers can discriminate.

At a conference in May 2009 organised by Interfaith Alliance UK, the Lesbian and Gay Christian Movement and the Trades Union Congress LGBT Committee [17], government minister Maria Eagle explained that: “Values of equality and social justice are held by many within as well as outside faith communities. The circumstances in which religious institutions can practice anything less than full equality are few and far between. While the state would not intervene in narrowly ritual or doctrinal matters within faith groups, these communities cannot claim that everything they run is outside the scope of anti-discrimination law. Members of faith groups have a role in making the argument in their own communities for greater LGBT acceptance, but in the meantime the state has a duty to protect people from unfair treatment.”

In the current wording of the Bill, organisations could still discriminate on grounds of sex, marital status and sexual orientation if required for the purposes of “organised religion”. But this is now defined as applying only to situations where, in terms of employment, this wholly or mainly involves promoting or explaining the doctrines of the religion or leading or assisting in the observation of religious practices or ceremonies. [18]

The Church of England’s Archbishop’s Council has declared that it broadly supports the aims of the Bill, but is opposed to “a substantial narrowing of the exemption”, so that senior posts such as that of a diocesan secretary would not be covered: “We shall be raising the issue with the Government, and are likely to support the tabling of amendments that would preserve the status quo”. [19]

The Council [20] is urging MPs, ‘Bodies which are not public authorities but which are exercising public functions, such as religious organisations working in the public sector, may be required by the new duties to act against their ethos. Room for religious difference in a diverse society must be protected.’ In addition ‘we are very concerned that the scope of the exemption currently available under the Employment Equality (Sexual Orientation) Regulations 2003 in relation to employment for the purposes of an organised religion is proposed (without any consultation or assessment of the practical implications) to be reproduced in a form which is considerably more restrictive’.

The Church of England Newspaper (which is not an official publication) took a more sensationalist approach: “The government had better start building more prison space — for Christians and moral conservatives generally. We are now used to hearing of such folk being sacked and losing their appeals for daring to air any view which criticises or disapproves of gay sex. The new Equality Bill issued by Harriet Harman last week lumps together groups needing special legal status to ensure them against discrimination including disabled people, women and homosexuals, for example… Christians, and of course Muslims and others who just disagree with the Stonewall line, are being told to shut up and get into their closet — the gays are not tolerant of dissent and have got the state to crackdown. This agenda is also being pursued in schools.” [21]

Aspects of the Coroners and Justice Bill are now also being opposed by church leaders. Church of England bishops, allied with others, are seeking to block government attempts to amend the law against incitement to hatred of LGBT people by removing a ‘free speech’ clause, stating that the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices is not in itself an offence. “If, as the Government argues, removing the amendment would not lower the threshold of the offence it is hard to see any justification for doing so,” states a briefing to MPs. [22]

This also quotes an earlier submission prepared jointly with Roman Catholic bishops: “Christians engaged in teaching or preaching and those seeking to act in accord with Christian convictions in their daily lives need to be assured that the expression of strong opinions on marriage or sexuality will not be illegal…. We also draw attention to the possible ‘chilling effect’ on free speech, which formed part of the debates on religious hatred. Uncertainty in the law has the effect of inhibiting behaviour which may not in fact be illegal. People holding firm opinions on sexuality will generally be reluctant to risk the emotional and financial costs of being challenged by a neighbour or colleague and investigated by the police, even if this does not lead to prosecution or conviction.” [23]

6. Moving forward on equality

It is of course legitimate for faith-based and other organisations to question the wording of laws and policies aimed at increasing equality and preventing mistreatment of the vulnerable. Careful thought is indeed needed to avoid unintended consequences, and in a democracy it is to be expected that a variety of perspectives will be aired.

However the one-sided nature of the comments from church leaders is disturbing. The focus of Church of England and Roman Catholic official pronouncements is almost entirely on the risks to people opposed to full equality, while little concern is shown about strengthening protection for those who will otherwise continue to be harmed by discrimination. There is also not much sense of thankfulness to God for the advances that have been made in recent decades. These have benefited not only women and minorities but also men from majority communities whose horizons have been widened.

Many Christian laypeople, and those of various other faiths (alongside agnostics and atheists), have played a part in the drive for greater equality. Yet this gets far less publicity than dire warnings by senior clergymen about the dangers of going too far, and their apparent belief that religious freedom is largely about being able to treat others less favourably than oneself. The Gospel call to treat others as you would like them to treat you (Matthew 7.12) is almost drowned out, and that freedom enjoyed by those who do no wrong to their neighbour goes unmentioned (Galatians 5). [24]

Church leaders and journalists should recognise that support for the Equality Bill and similar measures is, for many people, based not simply on following the norms of secular society but rather on deeply-held beliefs and values. It is not only those worried about greater acceptance of LGBT people who have consciences. For many teachers who have watched bullying destroy the self-confidence of children and drive them to self-destruction, careworkers helpless to prevent the victimisation of clients who are ‘different’ and others who have seen the damage which homophobia and transphobia can cause, stronger laws to defend the vulnerable will be welcomed.

It is to be hoped that the public can be shown that ‘the church’ is not fixated on sexuality, and that Christians and other people of faith hold a wide range of views. [25] People of faith, alongside their non-religious or spiritually diverse neighbours, can contribute to measured debate which recognises the complex issues which lawmakers are trying to tackle, and changes in social attitudes which go beyond grudging acceptance to love and mutual respect. [26]

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REFERENCES

[1] UK Government statement introducing the Equality Bill proposal in the Queen’s Speech, 3 December 2008. Full text on the Office of the Prime Minister website: http://www.number10.gov.uk/Page17676
[2] The full text of the The Equality Bill 2008-9, together with Legislation and Explanatory Notes is available here: http://services.parliament.uk/bills/2008-09/equality.html For Linex Legal Briefing information, go to http://www.linexlegal.com/content.php?content_id=90438 (subscription). The House of Commons Research Paper is now online (in *.PDF Adobe Acrobat format at: http://www.parliament.uk/commons/lib/research/rp2009/rp09-042.pdf There is no reference in the HCR to Regulation 7 (3) in the Employment Equality (Sexual Orientation) Regulations 2003, which permits religious organisations, and no-one else, to claim an “exception for genuine occupational requirement” related to sexual orientation.
[3] The formal summary of the Bill is as follows: Make provision to require Ministers of the Crown and others when making strategic decisions about the exercise of their functions to have regard to the desirability of reducing socio-economic inequalities; to reform and harmonise equality law and restate the greater part of the enactments relating to discrimination and harassment related to certain personal characteristics; to enable certain employers to be required to publish information about the differences in pay between male and female employees; to prohibit victimisation in certain circumstances; to require the exercise of certain functions to be with regard to the need to eliminate discrimination and other prohibited conduct; to enable duties to be imposed in relation to the exercise of public procurement functions; to increase equality of opportunity; and for connected purposes.
[4] For these documents in *.PDF Adobe Acrobat format, go to the Government Equalities Office: http://www.equalities.gov.uk/equality_bill.aspx
[5] ‘Religion, belief and non-discrimination law’, by Simon Barrow. Ekklesia Research Paper, 18 February 2009 - http://www.ekklesia.co.uk/node/8700 . This examines particularly the Equality Act 2006 / 2007 and the Employment Equality (Religion or Belief) Regulations 2003, but refers inter alia to the Racial and Religious Hatred Act 2006 (and which see Ekklesia’s ‘Rethinking hate speech, blasphemy and free expression’ - http://www.ekklesia.co.uk/research/251005relhatred ) and the Human Rights Act 1998. It also refers to definition in the European Convention on Human Rights and the Universal Declaration of Human Rights adopted by the United Nations.
[6] See: ‘Contrasting church attitudes on human rights for all’, by Savitri Hensman (http://www.ekklesia.co.uk/node/8492), which focuses especially on issues around sexuality, which the Church of England and others are singling out in order to context elements of equality and non-discrimination legislation.
[7] Other material on equality and equalities from Ekklesia’s news reporting and documentation may be found here: http://www.ekklesia.co.uk/tags/1442 The series on human rights and other articles by Savi Hensman on Ekklesia are referenced by the Source Hub here: http://labs.daylife.com/journalist/savi_hensman
[8] See ‘More than just “rights”,’ by Simon Barrow - http://www.ekklesia.co.uk/node/8823 . Ekklesia has generally agreed with Stanley Hauerwas and others that a ‘rights based discourse’ and legal approach is inadequate to a more thoroughgoing Christian perspective, for a range of reasons. But it is possible to acknowledge this while disagreeing that this renders engagement with the ‘public policy agenda’ counter-productive in terms of the more radical and subversive theological engagement, and also disagreeing with those in the churches who seek to use such engagement to protect religious prejudice, institutional self-interest or unjust discrimination.
[9] Lorraine Trenchard and Hugh Warren, Something To Tell You (London Gay Teenage Group, 1984) The pattern has been repeated many times since. See, referencing Trenchard & Warren and others, Debbie Epstein, ‘The boys who behave dangerously’, in The Independent newspaper, 8 July 1999 - http://tinyurl.com/l7u4z4 .
[10] See: http://treatmentshomosexuality.org.uk/ from research funded by the Wellcome Trust from 2001 to 2004 into the oral history of such ‘treatments’ in Britain since 1950.
[11] Stonewall, ‘Homophobic Bullying’ research: http://www.stonewall.org.uk/education_for_all/guidance/3002.asp
[12] Savi Hensman, ‘Conscience and justice’, 26 January 2007. http://www.ekklesia.co.uk/news/features/070126
[13] For coverage of the Reaney / Bishop of Hereford case and its aftermath, see: http://www.ekklesia.co.uk/search/node/hereford+reaney
[14] ‘Christian registrar's same-sex discrimination case dismissed’, Ekklesia staff writers, 27 December 2008 - http://www.ekklesia.co.uk/node/8232
[15] Leo McKinstry, ‘Harriet [Harman] and her scary new order’, Sunday Express comment – http://www.express.co.uk/ourcomments/view/98642
[16] Ekklesia co-director Jonathan Bartley has analysed and refuted this phenomenon of trying to identify equalities legislation and anti-discrimination issues pertaining to (or attached to) religion as ‘anti-religious discrimination’ or ‘Christianophobia’ in: ‘We need mediators not agitators’ (2 March 2009) http://www.ekklesia.co.uk/node/8846 ; ‘Are Christians facing persecution’ (9 May 2008) http://www.ekklesia.co.uk/node/7106 and in articles in The Guardian the Church Times and elsewhere. He predicted the rise of this phenomenon in his book Faith and Politics After Christendom (Paternoster, 2006): http://tinyurl.com/d2n99k
[17] Religious and non-religious unite to combat homophobia and transphobia’, by Savi Hensman, 18 May 2009 - http://www.ekklesia.co.uk/node/9456
[18] See Ekklesia’s analysis of definitions of religion in equalities legislation – endnote 5, above.
[19] ‘Church criticises Equality Bill definition’, by Simon Sarmiento, Church Times, 15 May 2009 (http://www.churchtimes.co.uk/content.asp?id=75171) and the further comments on Thinking Anglicans - http://www.thinkinganglicans.org.uk/archives/003791.html
[20] Archbishops’ Council of the Church of England: http://www.cofe.anglican.org/about/archbishopscouncil/
[21] Church of England Newspaper, an independent weekly publication with a predominantly conservative evangelical orientation: http://www.churchnewspaper.com/
[22] See ‘Bishops oppose repeal of Waddington amendment’, Thinking Anglicans - http://www.thinkinganglicans.org.uk/archives/003803.html
[23] Memorandum submitted by the Department for Christian Responsibility and Citizenship, Catholic Bishops' Conference of England and Wales, and the Mission & Public Affairs Council of the Church of England (CJ&I 403) – published on Parliament.co.uk: http://www.publications.parliament.uk/pa/cm200607/cmpublic/criminal/memo...
[24] Ekkklesia’s critique of the response of the churches to equalities legislation, proposals for the reform of church schools, facilities for adoption by same-sex couples and other provisions is not, as some have wrongly claimed, about a “secularist” or “neo-secularist” (Francis Davis) agenda, but is thoroughly rooted in a theological concern for the integrity, justice and viable witness of the Christian community in the world. See also, by Savi Hensman on human rights-related themes: * Being on the side of the crucified * Developing the Universal Declaration of Human Rights * Human rights are not just for individuals * The Christ child, the vulnerable and human rights * Tradition, change and the new Anglicanism * Prayerfully seeking justice and mercy
[25] The Anglican website Thinking Anglicans is providing a regular and informed information digest, commentary and space for debate on Equality Bill issues. The latest, as of 31 May 2009, is here (http://www.thinkinganglicans.org.uk/archives/003813.html) and here (http://www.thinkinganglicans.org.uk/archives/003812.html).
[26] Ekklesia will be responding to issues raised for the education sector, including schools of a religious character, through the Accord Coalition, of which it is a founding member - http://www.accordcoalition.org.uk/

Additional research by Simon Barrow

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ABOUT THE AUTHOR

© Savitri Hensman was born in Sri Lanka. She works in the voluntary sector in community care and equalities in the UK, and she is also a respected writer on Christianity and social justice. An Ekklesia associate, Savi has contributed several chapters to the recent book Fear or Freedom? Why a warring church must change, edited by Simon Barrow (Shoving Leopard / Ekklesia, 2008).