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St
Alban’s (Grand Cayman) & St Mary’s (Cayman Brac) |
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The Sexual Orientation Regulations 2007 FREQUENTLY ASKED QUESTIONS
For churches, charities, organisations and individuals in England, Wales and Scotland Seek justice
Love Mercy
Walk humbly with God Index
of questions INTRODUCTORY
IMPACT
ON CHURCHES AND VICARS / MINISTERS
IMPACT
ON OTHER CHRISTIAN ORGANISATIONS
IMPACT
ON CHRISTIAN CHARITIES
IMPACT
ON CHRISTIAN PREMISES
IMPACT
ON EDUCATION
MISCELLANEOUS
FREQUENTLY
ASKED QUESTIONS NB
NONE OF THE FOLLOWING INFORMATION CONSTITUTES LEGAL ADVICE. IT IS FOR
GENERAL GUIDANCE PURPOSES ONLY. ANY ORGANISATIONS OR INDIVIDUALS WHO
WISH TO KNOW HOW THE SEXUAL ORIENTATION REGULATIONS WILL APPLY
SPECIFICALLY TO THEIR SITUATION WILL NEED TO SEEK PROFESSIONAL LEGAL
ADVICE. INTRODUCTORY
QUESTIONS What
are the Sexual Orientation Regulations (SORs)? Using
power created by the Equality Act 2006, the Government has proposed a
new law making it illegal for anyone who provides goods, services,
facilities, premises, education or public functions to discriminate
against that person on the grounds of their sexual orientation i.e.
whether they are homosexual, heterosexual or bisexual.
Why should a Christian have a problem with the Regulations? Christians
are commanded to love all their neighbours irrespective of sexual
orientation. Generally, a Christian would happily provide goods and
services to people of different sexual orientations with no
discrimination – as Christians we earnestly desire the repentance
and salvation of all heterosexuals and homosexuals. The truly
important question is not whether someone is homosexual or
heterosexual, it is whether they will turn from their sins and
acknowledge Jesus Christ as their Saviour. However,
the Bible is clear that the only lawful sexual relationship for which
we were created is a relationship between a man and a woman in the
context of a legitimate marriage. The Bible is therefore clear that
all practising homosexual relationships are wrong. Consequently, any
law which forces Christians to promote or assist sinful sexual
behaviour (whether homosexual or heterosexual) forces Christians to
sin themselves. Worryingly this is what the SORs will do in certain
situations if they become law. Consider
one example: under the SORs the requirement not to discriminate on the
grounds of sexual orientation means that a Christian printing company
would be acting illegally if they were prepared to print a book about
the importance of marriage, but refused to print a book promoting
homosexual relationships, including homosexual sex. Although
it is only in a limited number of cases that a Christian would need to
exercise the freedom to discriminate on the grounds of sexual
orientation and although different Christians might have different
views on exactly when they would and when they would not wish to
withhold services in order to keep to the Bible’s teaching, the
principle of being free to uphold Biblical teaching is universally
important to all Christians. What activities are covered by the Regulations? Anyone (whether an individual or an organisation) who
provides goods, services, facilities or premises, or any school or
public authority, will be covered by the Regulations. The idea of ‘goods, services and facilities’ is
extremely broad and applies even if you provide those things for free[1].
The Regulations give the following examples of the sort of things
covered: (a)
access to and use of a place which the public
are permitted to enter, (b)
accommodation in a hotel, boarding house or
similar establishment, (c)
facilities by way of banking or insurance or
for grants, loans, credit or finance, (d)
facilities for entertainment, recreation or
refreshment, (e)
facilities for transport or travel, and (f)
the services of a profession or trade[2] This list illustrates the
incredible breadth of the coverage of the SORs. Do the Regulations just apply to England? There
are two sets of similar, but not identical SORs. The first applies to Northern
Ireland and can be found at http://www.opsi.gov.uk/sr/sr2006/20060439.htm.
The second set of Regulations applies to England, Wales and Scotland and can be found at http://www.opsi.gov.uk/si/si2007/draft/20075920.htm.
Unless
otherwise stated, all references made in this Information and Action
Pack will be to the England, Wales and Scotland Regulations. What
is the timetable for the Regulations – when will they actually
become law? The
Northern Ireland Regulations were brought into force on 1st
January 2007 and are now fully operational. The
England, Wales and Scotland Regulations are due to come into force on
the 30th April 2007. A short debate and vote took place in
a House of Commons Committee on the 15th March, and there
will be a final debate and vote on the Regulations in the House of
Lords on Wednesday 21st March. Please
sign-up for e-mail updates at www.lawcf.org
(for lawyers) or www.christianconcernforournation.co.uk
(for non-lawyers) to receive the latest news. Will the Regulations criminalise Christians? No.
The SORs are a civil not a criminal law. This means that (with
a few minor exceptions) the SORs do not criminalise anyone: they do
not create power for the police to arrest people. Instead,
the SORs make certain behaviour unlawful, so that an individual[3]
can sue someone who they allege has discriminated against them on the
grounds of sexual orientation. This is a private legal action
generally taken by individuals, rather than a legal action taken by
the state. Will the Regulations make parts of the Bible illegal? No. The Regulations will not make parts of the Bible illegal. They do however have serious implications for following the teaching of the Bible (see below). What are the main problems with the Regulations (doesn’t regulation 14 (the religious exemption) provide all the
protection Christians need)? There
are a number of problems with the Regulations (many of which are set
out in greater detail below). For example: 1)
The Regulations automatically assume that homosexual civil
partnerships are fully equivalent to heterosexual marriages and
therefore it is assumed that any discrimination (in the
provision of goods and services) between married couples and
homosexual civil partners is illegal[4]. 2)
There is a crucial gap in the protection of vicars and ministers[5]
so that it will be illegal for them to teach their congregation that
they should follow the Bible’s teaching on sexual morality even
where this conflicts with the SORs[6]. For example, it would be
illegal for a vicar to cite the example of the Christian printing
company and then say ‘it is better to follow the Bible’s teaching
and risk being sued than to be complicit in sin by printing leaflets
promoting gay pride’. 3)
There is no protection for individuals to guarantee their
freedom of conscience – the only exemption for religious belief
(Regulation 14) applies to organisations rather than
individuals. Therefore an individual Christian GP, for example, would
have no freedom of conscience to refuse to give a reference
recommending homosexual parents as suitable for adopting because the
GP did not believe it would be right / in the best interests of a
child to be raised without a father and a mother. This does not make
sense in light of a doctor’s freedom to refuse to recommend /
perform an abortion on the grounds of conscience under the Abortion
Act. 4)
There is no specific protection for faith schools which are
bound by the law in the same way as all schools (see further, below).
Also, there is a substantial danger that it will be illegal under
the SORs for faith schools to continue to teach that extra-marital
sexual relationships are wrong. 5)
There is no protection for commercial Christian organisations,
however strong their Christian ethos (e.g. a Christian printing
company will be acting illegally if they refuse to print fliers
promoting gay sex). 6)
There is no protection for many voluntary organisations which,
although run by Christians who are motivated by their faith, are not
strictly 'religious' in the language of the legislation (e.g. a
Christian homeless shelter would not be able to hold the policy that
‘we will not provide services to someone if this were to promote
homosexual practices’). 7)
There is no protection for a church or other religious organisation
where they receive funding from the local authority to provide goods
or services such that if a church receives state funding to run,
for example, an overnight homeless shelter, it will lose all
the protection under Regulation 14 and would not even be able to
refuse membership of the church to openly practising homosexuals[7]. 8)
There is a danger that it will be unlawful for vicars to be able to
continue to preach that same-sex relationships are sinful because
preaching itself is not protected by the religion exemption and may
contravene Regulation 9. It
is true that Regulation 14 does offer a substantial degree of
protection to churches and other religious organisations that are not
‘solely or mainly commercial’ and which do not provide goods,
services etc on behalf of a public authority under a contract. So, for
example, under the Regulations, in the vast majority of cases, a
church will be free to refuse to let out a church hall to a
group wishing to promote homosexual practices (see further information
about churches, below). However, as the list (above) shows, there are
still many problems with the Regulations. Is it a defence to argue “I am not treating this person differently
(discriminating) because they are a homosexual, I am treating them
differently because of my religious beliefs”? No. The question is simply ‘would you have a treated a heterosexual person (in the same circumstances) in the same way as you treated the homosexual person’. If the answer is ‘no’ then it does not matter what your motivation or reason was. Is it a defence to argue “I am not treating this person differently
(discriminating) because of their sexual orientation
but because of their sexual practices”? No.
The Government have never accepted this distinction in law and neither
(to date) have the courts[8]. Is it a defence to argue “I
am treating this homosexual person in the same way I would treat any
unmarried person”? On
the whole, the answer is ‘no’. The Regulations state expressly
that treating homosexual couples who have a registered civil
partnership, differently from married couples, will always be assumed
to be unlawful[9]. However,
a Christian B&B owner who refuses to let a double room to an
unmarried heterosexual couple and also refuses to let a double room to
a homosexual couple who do not have a civil partnership, will not be
discriminating unlawfully. The difficulty is that if the B&B owner
allows married heterosexual couples to book a double room, then he
will be acting illegally if he refuses to allow a homosexual couple
with a civil partnership to do the same. Doesn’t
Regulation 3(3)(d) mean that providing I can ‘reasonably justify’
my discrimination, I will be alright? No. Firstly, there are two different types of discrimination covered by the SORs: direct discrimination and indirect discrimination[10].
In relation to the Christian printer scenario (for example) it is a case of direct discrimination because the printer would print a book promoting marriage (a heterosexual relationship) but would not print a book promoting homosexual relationships: this is a straightforward case of treating the homosexual person less favourably on the ground of sexual orientation. In such direct discrimination situations, any justifications for discriminating are, in legal terms, irrelevant.
It is only in cases of indirect discrimination that there is a legal opportunity to justify what you have done. Indirect discrimination would be, for example, where you apply a requirement that everyone (homosexual or heterosexual) who uses your premises, must sign a statement of faith. The rule is applied to everyone equally, but may indirectly discriminate against homosexuals who are not willing to sign up to the Bible’s teaching on sexual morality. In such a case, if you can ‘reasonably justify’ why a statement of faith must be signed, then it will not be unlawful discrimination.
What constitutes a ‘reasonable justification’ is entirely up to the courts, but where a commercial service is being provided, religious considerations are unlikely to be considered a reasonable justification for indirect discrimination.
Is
it true that the Christians who are concerned about these Regulations
are just a small minority? No.
The official responses to the Government’s consultation on the
Regulations by the Church of England, the Catholic Bishops’
Conference, the Evangelical Alliance, CARE, Anglican Mainstream,
Affinity, Christian Institute and many others expressed broadly
similar concerns about the impact of the Regulations. Since then, the
Archbishops of Canterbury and York, as well as the Bishop of Durham
and the head of the Roman Catholic Church in England, have spoken out
publicly in supporting those concerns. In Northern Ireland, on the 20th
December, a detailed joint statement was issued by the Presbyterians,
Roman Catholics, Church of Ireland and Methodists, criticising the
content of the Regulations and calling for amendments to be made. Do the Regulations protect homosexuals from violence and bullying? No.
There are already numerous other criminal laws which protect against
violence, bullying and other related behaviour, but these Regulations
deal with the provision of goods, services and facilities. Are Christians who oppose the Regulations homophobic? Homophobia
is an irrational prejudice towards someone because of their
homosexuality. Christians’ view of all people is based squarely on
the word of God - the Bible, and there is nothing irrational in that
belief. The Bible teaches that we should love our neighbours as
ourselves (that command was not limited to heterosexuals) and that in
love we should speak the truth. Part of that truth is that the only
rightful sexual relationship God intended was between a man and a
woman in a monogamous marriage. This is not a homophobic view. Aren’t
Christians who oppose these Regulations too focussed on the issue of
homosexuality? The
following quotation from Martin Luther explains with clarity why
Christians must engage with the current legislation being put forward
which raises issues surrounding homosexuality: ‘If I profess
with the loudest voice and clearest exposition every portion of the
Word of God except precisely that little point which the world and the
devil are at that moment attacking, I am not confessing Christ,
however boldly I may be professing Him. Where the battle rages there
the loyalty of the soldier is proved; and to be steady on all the
battle front besides, is mere flight and disgrace if he flinches at
that point.’ (Luther's Works. Weimar
Edition. Briefwechsel [Correspondence], vol. 3, pp. 81f.). Shouldn’t
Christians spend more time showing love and being inclusive to
homosexuals rather than opposing this law? It
is the role of all Christians to be salt and light to the world and to
show love and compassion to everyone in society. We are speaking for
the benefit of society because it is not good for anyone if conscience
is increasingly blocked out of public life. Societies where conscience
isn’t valued are eventually societies where people largely cannot
trust each other. The effects are then felt by the gradual
disintegration of society. But more importantly, as Christians we are
also compelled by God’s love to speak Gospel Truth into a society
crying out for help. As fallen humans, we are all sinners under
God’s judgment, but offered forgiveness and reconciliation with God
through the blood of Jesus. Our message of the Gospel to turn from sin
and trust in the Saviour makes no sense if Christians are not also
opposed to legislation requiring us to condone sinful behaviour. When
the Government is about to introduce laws demanding that some
Christians be complicit in sinful behaviour then as Christians the
most loving thing to do is to speak out. Is
public opinion against the Christian viewpoint on the Regulations? In
an independent Opinion Poll of 1000 people (21st Nov 2006)[11],
72% of the general public supported the main concern about the
Regulations: their impact on freedom of conscience. IMPACT
ON CHURCHES AND VICARS Are there exemptions from this law for churches? Yes.
Regulation 14 provides certain exemptions from the law for religious
organisations and these exemptions will apply to churches. The
exemptions allow churches (and other religious organisations, see
below) to discriminate on the grounds of sexual orientation (a)
by restricting membership of the organisation (b)
by restricting participation in the activities
undertaken by the organisation (c)
by restricting the provision of goods,
facilities and services in the course of activities undertaken by the
organisation, or (d)
by restricting the use or disposal of premises
owned or controlled by the organisation. It
is important to note that the restrictions listed above (a) to (d) are
only permissible where 1)
it is necessary to apply the restriction ‘in order to comply with
the doctrine of the organisation’ or 2)
the restriction needs to be imposed ‘so as to avoid conflicting with
the strongly held religious convictions of a significant number of the
religion’s followers’.[12] There are also several key areas in which even
churches will not (or may not) benefit from these Regulation 14
protections. For example: A)
Where churches provide goods, services, facilities or exercise
public functions on behalf of a public authority (e.g. local
authority) under a contract (e.g. a contract where the local
authority funds the church to provide services on its behalf)[13] they will not have
protection in relation to any of their activities (this appears
to be a mistake in the drafting of the law). For
example, if a church receives funding from the local council to run a
soup kitchen, overnight homeless shelter, family centre etc, it will
lose all the protections under Regulation 14 and would not even
be able to refuse membership of the church to openly practising
homosexuals. B)
Where
a vicar teaches their congregation that they should follow the
Bible’s teaching on sexual morality even where this conflicts with
the SORs they will have no protection from Regulation 14 (preaching
is not covered by (a) to (d) above). For example, it would be
illegal for a vicar to cite the example of the Christian printing
company and then say ‘it is better to follow the Bible’s teaching
and risk being sued than to be complicit in sin by printing leaflets
promoting gay pride’. This appears to be an unintended consequence
of the law. C)
Where a vicar is preaching that homosexual practices are
sinful, there is a slight possibility it could constitute a
‘practice’ which would be ‘likely to result’ in unlawful
discrimination on the grounds of sexual orientation. Again, it seems
that the SORs were not intended to have this result. Do the exemptions just apply to certain denominations? No.
The exemptions apply to all denominations and cover vicars / ministers
/ pastors or any other person in a church who: (a)
performs functions (within that religious organisation) in
connection with a religion or belief, and (b)
holds an office or appointment in, or is accredited, approved
or recognised for the purposes of that religious organisation.[14] Will vicars be required to take ‘gay weddings’ (Civil Partnership
ceremonies)? No. Regulation 14[15] (see above) means that vicars will not be required to take gay weddings or bless homosexual partnerships (note the point, above, that this does not apply if churches are providing services on behalf of a public authority, under a contract). Will vicars be required to give communion to or baptise practising
homosexuals? No. (Note the point, above, that this answer does not apply if churches are providing services on behalf of a public authority, under a contract) Will churches be required to hire out their halls to groups promoting
homosexual practices? No. In most cases churches will be able
to refuse to hire out their halls in such a situation (note the point,
above, that this does not apply if churches are providing services on
behalf of a public authority, under a contract). However, a church which runs, for example, a
family centre in separate premises, may not have freedom
to refuse to hire out the centre to groups promoting homosexual
practices if the premises are not closely enough linked to the church
itself, such that the family centre could be described as a separate
organisation, and where that separate organisation does not count as a
religious organisation in the Regulation 14 definition (for example if
the premises’ main purpose is to provide services to the general
public, rather than just to benefit Christians). Note also that a church which is selling its
whole legal interest in premises (e.g. if it is selling the whole
church) will not be able to discriminate on the grounds of
sexual orientation in relation to who purchases the church.[16] IMPACT
ON OTHER CHRISTIAN ORGANISATIONS Are all Christian organisations protected by Regulation 14? No.
Only Christian organisations which have as their main purpose one or
more of the following: (a)
to practice a religion or belief (b)
to advance a religion or belief (c)
to teach the practice or principles of a religion or belief or (d)
to enable any persons of a religion or belief to receive any
benefit, or to engage in any activity within the framework of that
religion or belief[17] will
be able to benefit from the religious exemption. There is a large
question-mark over the exact scope of these 4 ‘purposes’,
particularly purpose (d). Even
where a Christian organisation falls within one of the four purposes,
if it provides goods, services, facilities or exercises public
functions on behalf of a public authority (e.g. local
authority) under a contract (e.g. a funding contract where the
local authority funds the Christian organisation to provide services
on its behalf) they will not be exempted from the Regulations. This
is why many Christian adoption agencies will be forced to close:
because they receive funding from the local authority and they will
therefore not be able to discriminate on the grounds of sexual
orientation: they will not be allowed to take the view that it is
right for children to be adopted into families which have a mother and
a father. Equally,
a Christian organisation ‘whose sole or main purpose is
commercial’[18]
will not have any protection, however religious they are. This is why
a Christian printing firm will be acting illegally if they refuse to
print posters promoting homosexual practices. Note
that a Christian organisation can take part in commercial
activities and still be protected by the Regulation 14 exemption, as
long as commerce is not its sole or main purpose. IMPACT
ON CHRISTIAN CHARITIES Is there an exemption from the Regulations for Christian charities? No.
Regulation 18 provides an exemption so that any charity which is
established specifically in order to serve either homosexuals
or heterosexuals, will be allowed to continue to do so. This offers
almost no protection to the vast majority of Christian charities: most
Christian charities would very much want
to provide their services to everyone, irrespective of sexual
orientation. Regulation 18 may offer protection to Christian charities
which exist to promote marriage, but there would still be an argument
that the purpose of the charity was not to ‘benefit’ heterosexuals
as a group, but rather to ‘promote marriage’ to everyone. The
Government have made it clear that the thrust of Regulation 18 is to
benefit homosexual charities. The only examples of charities they
intend to cover are “charities
that promote LGB rights or provide counselling services for LGB
victims of domestic abuse”.[19] Note
that some, but not all Christian charities will fall within Regulation
14 (see above) and be protected by that clause. IMPACT
ON CHRISTIAN PREMISES Is there an exemption for B&Bs? No. There is no exemption under the Regulations for
B&Bs[20]. Equally, where you offer
lodgings in your own home to members of the public (for example,
students), it will be illegal to refuse to allow a practising
homosexual to use those lodgings, if you are refusing on the grounds
of their sexual orientation[21].
However, it is possible to discriminate on the
grounds of sexual orientation in relation to letting out[22]
part of your own house (or a property you own where a close relative
resides) providing that the house in question is not big enough to
accommodate more than 2 ‘households’ in addition to your own
household, or more than 6 individuals, in addition to your own
household.[23]
This is a slight simplification of a complicated clause: there are
some other criteria which must be fulfilled to qualify for this
exemption. Equally, where someone owns and occupies the whole of
some premises and does not advertise or use an estate agent, they are
able to discriminate on the grounds of sexual orientation in how they
sell or let the premises[24]. Why would a Christian want to turn a homosexual away from a B&B? It
is clear that Christians will have differing views on when it is
necessary to discriminate against a homosexual person on the ground of
their sexual orientation. The B&B example which was cited widely
in the press was not a case of a Christian B&B wanting to turn
away a single homosexual person, but a case of a Christian B&B
willingly providing separate sleeping accommodation for a homosexual
couple, but wishing to have the freedom to refuse them a double room,
because of a desire to have no part in facilitating and condoning
sinful homosexual practices. IMPACT
ON EDUCATION Are there any protections for faith schools? No. The SORs do not give any specific protections for faith schools (whether Anglican, Catholic, Muslim or other). They are treated in exactly the same way as all other schools. Will the Regulations affect the content of what is taught in schools –
the curriculum? The
position of the curriculum is, in legal terms, extremely unclear.
However, the specialist Parliamentary lawyers who advised the Joint
Committee on Statutory Instruments were adamant that the curriculum was
covered by the SORs. The Joint Committee on Human Rights stated that
they were unclear but that they believed the Regulations should
apply to the curriculum. The
SORs make it illegal for the Local Education Authority or the
Governors of a school to subject a pupil to “any other detriment”
by discriminating on the grounds of sexual orientation. The
precise meaning of that phrase is unclear. The phrase has been defined
by judges as meaning very broadly “putting at a disadvantage”[25]
and there doesn’t need to have been any physical or economic
consequences to the discrimination for it to count as a
’detriment’. This indicates that the homosexual parents of a
school child could argue that the child was ‘put at a
disadvantage’ if the school (even if it was a Christian school) was
failing to educate pupils that homosexual relationships were just as
acceptable as married relationships. Secondly,
in other pieces of legislation where the Government intended that the
curriculum should not be covered, they said so explicitly[26].
In the SORs, there is nothing which says ‘these Regulations shall
not affect the curriculum’. There
have already been reports in national newspapers that some authorities
are interpreting the Regulations as requiring schools to begin to
promote homosexuality to primary school children in a more active
manner: http://www.dailymail.co.uk/pages/live/articles/news/news.html?in_article_id=441542&in_page_id=1770
Will individual teachers be caught by the Regulations? The provisions which apply to education[27] place legal duties on the Local Education Authority (LEA) and school governors. Ho | |
