Updating the sex discrimination act
Affinity (formerly the British Evangelical Council, founded in 1952) is a network of evangelical denominations, church groupings and independent causes. Representing approximately 1,200 congregations, it is probably the largest association of exclusively Bible-centred churches in the UK.
We would like to comment on a number of issues raised in the Consultation, and have set out our observations in the order in which they appear in the Consultation document, indicating the question number to which they refer.
Question 6: Gender re-assignment
We deplore all forms of harassment, and therefore support the strengthening of the Act to deal with this problem.
However we are concerned about the implications of Section (c) of this Question - “harassment on grounds of gender reassignment.”
We feel that there is a very real possibility, from the context implied by Section 5(3)(a)(ii) of the draft Regulations, that legitimate and unthreatening attitudes to the issue of gender re-assignment might be interpreted as “harassment.”
In any workplace, the following situation might easily arise:
- Employee C discovers that Employee B has undergone gender re-assignment.
- Employee C knows that Employee A is an evangelical Christian, and asks him (or her) privately what he (or she) thinks about the issue of gender re-assignment.
- Employee A, not aware of the involvement of Employee B in gender re-assignment (Employee B not having been mentioned at all in the conversation), replies that he (or she) does not think it possible, in the light of the Bible’s teaching, for a biological change of gender to take place, both for biological and theological reasons.
- A little while later, Employee C tells Employee B that Employee A does not think that any gender change can be genuine, whereupon Employee B confronts Employee A, accusing him (or her) of claiming that Employee B’s gender change is a fake.
- Employee B feels undermined and slandered by his (or her) perception of Employee A’s conduct, and makes a formal complaint to an Industrial Tribunal that Employee A has engaged in “unwanted conduct that has the effect of creating an intimidating, humiliating, offensive environment for Employee B.” [Section 5(3)(a)(ii) of the draft regulations].
All Employee A has done is to express a genuinely-held conviction, in answer to a question, in a third party conversation, about an issue in a context not related to a particular person.
In fact it is Employee C who has caused the problem, but he (or she) will not be caught by the regulations, as his (or her) conduct will not be, in the mind of Employee B, “unwanted.” On the contrary, Employee B is more likely to feel indebted to Employee C for informing him (or her) about what Employee A had said.
Employee A has little defence against the regulations, since intention is not a requirement. The regulations bear upon him (or her) in a three-pronged attack:
- His (or her) conduct was “unwanted” by Employee B.
- It had the “effect” of creating a “humiliating” environment for Employee B.
- In assessing the “effect” of the “unwanted conduct” Section 5(4) requires that particular regard is taken of the perception of Employee B.
We are not arguing that on any test of reasonableness, an assessor would conclude that the conduct had not had the effect alleged. On the contrary we can easily imagine that Employee B might feel diminished by what had happened. The point is that not all “effects,” however distressing, are caused by culpable, unjustified or unreasonable conduct.
It would be extraordinarily unreasonable and unjust for Employee A to be faced with legal action against him (or her) in the circumstances described above. Employee A is not hostile to Employee B or engaged in a campaign against him (or her). Employee A is not even deliberately highlighting an issue and hawking it round the office. He (or she) is simply answering a straightforward question about his (or her) beliefs, on a matter, not relating to a particular person, which someone has specifically asked about.
The only glimmer of a defence for Employee A is in the first line of paragraph (3)(a), where it is implied that for an offence to take place, Employee A would have to know that Employee B intended to undergo, was undergoing or had undergone gender re-assignment, since under the Regulations this would have to be the ground that led to the action complained of.
In the sample incident we have described above, it is clear that the ground of the incident was not connected with Employee B, and therefore Employee A would not be guilty of an offence under these Regulations.
However the question arises as to where the burden of proof lies in connection with whether Employee A knew about Employee B’s involvement in gender re-assignment or not? Some people are very ready to believe that others are not telling the truth, and a simple denial by Employee A that he or she was aware of Employee B’s involvement in gender re-assignment will not necessarily stop the case in its tracks. The Industrial Tribunal may take the view that Employee A was lying.
These are not fanciful fears arising from a persecution complex. None of the sequence of events described in our sample incident is at all surprising, extreme or abnormal. One can imagine each stage occurring in quite an ordinary way.
Thankfully, there are not likely to be many incidents of this kind. For one thing, there will not be many cases of gender re-assignment, and secondly, not all of them, even if everything happened in accordance with our sample incident, would lead to a formal complaint being made by Employee B against Employee A. Although it is diminishing, there is still within “the British way of life” a characteristic personal tolerance, and a willingness to give others the benefit of the doubt and not make a crisis and a confrontation out of every issue.
However, we submit that the Regulations still leave too much room for anyone in the situation of Employee A to be at risk of prosecution, and we strongly assert that the Regulations should be re-worded to provide Employee A with greater protection.
We would propose therefore the deletion of the words “or effect” at the end of paragraph (3)(a) and the deletion of paragraph (4), which is contingent upon (3)(a).
We have no argument at all against the word “purpose” in (3)(a) since we believe it should be unlawful for anyone to intend the effects described in (3)(a)(I) and (3)(a)(ii).
Law should be about intent and not about effect, since effect can be accidental and always has to be defined subjectively. Any law under which people cannot be certain whether they are committing an offence or not is a bad law. This case is worse than that, since it is one where Employee A could be found guilty of a breach of the Regulations, in a situation where it would never have occurred to him that he was breaking the law.
Paragraph (4) is no help in this respect since its intention is to verify whether there have been effects, rather than to assess how those effects were caused, and whether any conduct by anyone involved is blameworthy.
Question 12
Although a range of specific professional occupations come within the category of “office-holder” our observations are only intended to relate to ministers of religion, as this is our area of interest and with which we are particularly familiar.
Office-holder status is appropriate
We strongly contend that the present office-holder status of ministers of religion is not only correct in terms of the nature of the work of a minister of religion, but we also believe that it works well in practice, and has stood the test of time.
Consistency of treatment
Any attempt to bring office-holders into the scope of the SDA is inconsistent with the present relationship between ministers of religion and statutory employment legislation.
It will cause nothing but confusion if ministers of religion are subject to statutory employment legislation in some aspects of the relationship between ministers and those who appoint them, but not in others.
We cannot at all understand why it should be thought appropriate that a tribunal should judge a case of harassment in the church (if one was found to exist), while not being in a position to judge the justification for a redundancy.
It is odd that the DTI should be vigorously driving the case to bring ministers of religion within the scope of the SDA, while equally vigorously resisting the pleadings by AMICUS at every meeting of the Clergy Working Group to bring ministers of religion into the scope of Section 23 of the Employment Relations Act 1999. On employment relations, the government favours a voluntary system (as we also do) for the provision of greater employment protection for ministers of religion, rather than bringing them into the statutory framework. But we would also welcome the greater consistency which would result from leaving office-holders out of the scope of the SDA.
Separation of Church and State
The great advantage of keeping clear water between ministers of religion and statutory employment legislation is that it ensures the separation of the doctrine, theology, and intricacies of church life and practice, within a wide range of faith communities, from the jurisdiction of the State.
Issues of this type could not come under the umbrellas of mainstream employment law and regulation, through tribunals, courts and statutory duties, without the impression being given that the State was the ultimate arbiter in religious matters.
This would create the potential to bring into the public domain, sometimes for judicial resolution, a whole raft of specific and complex church governance issues, as well as introducing the possibility of fresh “freedom of religion” arguments about matters which we all thought were resolved several hundred years ago.
The model which the DTI has chosen to follow in connection with the delivery of greater employment protection for clergy, suggests that there is no need for State intervention through the law if the same good practice can be delivered in other ways. We wholly support this approach, not only because it avoids the necessity of the State’s intervention in the life of the Church, but also because it allows ministers of religion to retain the status of office-holder, which gives them greater freedom in the way they work than they would have if they became employees.
We propose therefore that office-holders are not brought within the scope of the revised SDA.
Question 13: Safeguards for doctrinal convictions of churches
We greatly welcome Section 20 of the draft regulations, revising Section 19 of the 1975 Act. All the relevant issues which are vital to the conscience, doctrine and convictions of our churches and their members are fully, rightly and succinctly covered by the new wording.
The ability to operate lawfully on the basis of such convictions is essential, and will bring benefit to the churches and thus to the State.
We would, however, have preferred to see the new concept of “civil partnership” more clearly separated from the references to “marriage” in paragraphs (3)(c) and (d) of the Section, for the following two reasons:
When consulting over the Civil Partnership Bill, the government went out of its way to assert that civil partnership was not marriage, even though many of the entitlements and privileges provided to civil partners under the Act are precisely the same as those already possessed by married couples.
It would cause further serious damage to marriage, and thus to the stability and happiness of society, if our contemporary generation was lulled by carelessness, indifference or sheer inaccuracy, into a presumption that marriage and civil partnership were the same thing and were both “marriage.”
Even the Daily Telegraph, in a news item headed “Vicar in first same-sex wedding” (Wednesday, 25 May 2005, page 6), wrongly stated that a female vicar “is to marry her long-term girl-friend.” If the Daily Telegraph can so easily make that kind of mistake, one can easily imagine the general public doing so unless clear distinctions are constantly drawn.
To be consistent with the government’s position when promoting the Civil Partnership Bill, and to avoid public confusion, a greater separation of the two categories of relationship is required.
The number of civil partnerships will be minuscule compared with the number of marriages, and does not justify the way in which the two categories of relationship are even-handedly linked in paragraphs (3)(c) and (d) of the Section.
In passing, we would also express our disappointment that the Consultation document uses the word “narrow” in paragraph 106 on page 34, since this adjective merely introduces a subjective opinion. The paragraph would have had exactly the same meaning if the word “narrow” had been omitted. The impression is given that the word has been included in order to give some additional reassurance to a constituency which might have been hoping that the revised SDA would permit no exceptions at all. The use of the word implies that any exceptions to the SDA are granted with reluctance, rather than because they are right, justified and beneficial. This is unnecessarily unhelpful. The DTI should have the courage of its (in this case, correct) convictions.
Submitted by Rod Badams on behalf of the Affinity Social Issues Team
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