Section B: Discrimination On Grounds Of Sexual Orientation
Definitions
"Sexual Orientation" and "Discrimination"
Section 35 of the Equality Act 2006 sets out the definition of sexual orientation for the purposes of the Act.
For the precise wording of the provisions you will need to refer to the Act through the website link on page 2. General comments on these provisions are given below. Interpretation of the provisions is a matter for authorities and their advisers, and of course ultimately for the courts.
What Does Discrimination on Grounds of Sexual Orientation Mean?
Discrimination on grounds of sexual orientation means treating a person less favourably than another person is or would be treated because of:
(i) their sexual orientation;
(ii) the sexual orientation they are perceived to have; or
(iii) the sexual orientation of someone else with whom they are associated, such as a parent, relative or friend.
Discrimination can be either direct or indirect:
Direct discrimination on the grounds of sexual orientation happens when a person is treated less favourably than another person is, or would be, in the same circumstances and that treatment is because of their sexual orientation or that of a person with whom he or she is associated, such as a parent.
Indirect discrimination on the grounds of sexual orientation happens where a provision, criterion or practice is applied to everyone but it has the effect of putting a person of a particular sexual orientation at a disadvantage - and it cannot be reasonably justified by reference to considerations other than sexual orientation.
It is also unlawful discrimination to victimise someone by treating them less favourably because of anything they have done or intend to do in relation to these regulations, such as making a complaint or giving evidence for a complainant.
How The Regulations Apply To Schools
The Equality Act (Sexual Orientation) Regulations 2007 ('the regulations'),
make it unlawful for a school to discriminate against a person:
- in the terms on which it offers to admit him or her as a pupil
- by refusing to accept an application to admit him or her as a pupil
- in the way in which a pupil is afforded access to any benefit, facility or service
- by refusing access to any benefit, facility or service
- by excluding him or her
- by subjecting him or her to any other detriment.
All public, grant-aided and independent schools in Scotland are covered by the regulations, which make it unlawful for the responsible body of a school to discriminate on grounds of sexual orientation in the exercise of their functions. The responsible body in public schools will be the education authority, in grant-aided schools will be the manager of the school and in independent schools it will be the proprietor.
Discrimination is unlawful in civil law rather than being a criminal offence. A person who believes that he or she has been discriminated against unlawfully may bring a case to a sheriff court, which can award damages, including compensation for injury to feelings. Other possible options, in addition to such an award, may include an order of reduction (quashing the original decision and remitting the matter back to the decision maker for reconsideration), an interdict (prohibiting an unlawful act), or an order of specific implement (requiring a certain action to be performed).
Implications for schools
General
Schools that already employ non-discriminatory practices and adhere to Scottish Executive guidance should already be acting within the spirit and letter of the regulations.
Schools will need to make sure that gay or lesbian pupils, or the children of gay or lesbian parents, do not receive different and less favourable treatment from that given to other pupils. They should check that there are no practices which could result in unfair, less favourable treatment of such pupils. They will need to ensure that homophobic bullying is taken as seriously and dealt with as firmly as bullying on any other ground.
Pupil admissions
Education authority school places are usually allocated by geographical catchment areas, with parents able to submit a placing request to the council for their child to attend another school. An authority can only turn down such a request on one of several grounds set out in law, and an appeal system is in place if the parent or child nonetheless feels they have been discriminated against.
Under the sexual orientation regulations, the parent or child could also, or alternatively, seek redress for any discrimination through the courts, in both education authority and grant-aided or independent schools. A court would have the power both to reduce (i.e. quash) the decision not to award a school place and to award damages for the discrimination itself.
The regulations also apply to discriminatory behaviour in the arrangements surrounding the admissions process, such as open evenings and published material. Schools must not seek to deter applications, or deny admission, to pupils on the basis of their sexual orientation, or that of their parents. They must be careful, also, to ensure that such practices cannot be implied.
Teaching and the curriculum
The regulations should have no effect on teaching and the curriculum in schools. The 5 - 14 National Guidelines for Personal and Social Development highlight the need to create within the school a warm, caring, supportive atmosphere in which all individuals, pupils, staff and parents know that they are valued. In addition, statutory guidance on the conduct of sex education, issued in Circular 2/2001 to Directors of Education in March 2001, expresses the importance of sex education being non-discriminatory and sensitive to the diverse backgrounds and needs of all young people. If schools continue to adhere to this guidance, dealing sensitively and appropriately with issues around sexual orientation, then they should already be acting in compliance with the regulations. Schools should, nonetheless, make sure that they do not discriminate in delivering any part of the school curriculum or extra-curricular activity. So, for example, they must not prevent a pupil from taking part in a residential school trip because he is, or is perceived to be, gay, or make a pupil get changed for PE separately from the other boys because he is gay, or prevent a girl from being head prefect because she is a lesbian.
Whilst the 5-14 Guidelines in relation to Personal and Social Development set out the requirements for education authority schools, they also provide useful guidance for independent schools and following them would help to ensure that independent schools are best placed to meet the requirements of the new regulations.
Conflict with religious freedom
Protection in the area of discrimination on grounds of religion or belief and the right to manifest one's religion or belief has already been addressed in Part 2 of the Equality Act 2006. The intention of these regulations is to ensure that pupils are not discriminated against on the grounds of their own, or their parents', sexual orientation. They do not prevent denominational schools from delivering appropriate teaching in accordance with their beliefs. In Scotland, denominational schools teach religious and moral education according to the 5-14 National Guidelines, or in the case of Catholic schools the religious education guidance agreed with the Scottish Catholic Education Service. This framework is considered sufficient to ensure that schools deal appropriately with subjects and situations where sexual orientation is a relevant issue.
The regulations do not prevent a teacher from expressing views on sexual orientation, based on their particular religion, provided this is done in an appropriate manner and context (for example when responding to questions from pupils, or in a religious and moral education class). However, conveying a belief within an educational context in a way that harasses or berates a particular pupil or group of pupils is unacceptable and may constitute unlawful discrimination.