Getting equal

Proposals to outlaw sexual orientation discrimination in the provision of goods, facilities and services in Northern Ireland

September 2006

1.  Introduction

1.1 Law Centre (NI) welcomes the opportunity to comment on the Government’s proposals to prohibit unlawful discrimination on the grounds of sexual orientation in the provision of goods and services.

1.2 The Law Centre is a public interest law non-governmental organisation.  The Law Centre works to promote social justice and provides specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in Northern Ireland. 

1.3 Below we set out some general comments, followed by our response to the specific questions posed in this consultation.    

2.  General Comments

2.1 The Law Centre has welcomed positive developments in legislation protecting the rights of lesbian, gay, bisexual and transgendered persons in Northern Ireland over the last number of years and we strongly support the proposal to extend the scope of anti-discrimination law in Northern Ireland to prohibit discrimination on the grounds of sexual orientation in the provision of goods, facilities and services.  This is an important addition to the right to be free from discrimination on the grounds of sexual orientation in employment and training established by the Employment Equality (Sexual Orientation) Regulations (NI) 2003.  It also brings the protection for the lesbian, gay and bisexual (LGB) community in Northern Ireland more into line with that offered to other groups.  We consider that these regulations will positively complement the Section 75 statutory equality duty and for this reason, are to be further welcomed.

2.2 We welcome Minister Hanson’s statement of principle that ‘in a modern and diverse society, it is not acceptable for someone to be discriminated against because of their sexual orientation.1 It is not enough, however, simply to act to prohibit discrimination.  The prohibition on discrimination must be accompanied by positive steps to ensure the full realisation of the right, including strong enforcement and remedial regimes.  This is particularly important in NI where, historically, there have been strong local mores opposed to homosexuality.2

2.3 LGBT persons in Northern Ireland face significant levels of disadvantage and discrimination.  Although data relating to the needs and experiences of the LGBT community in Northern Ireland is not well developed, recent research highlights some of the issues.  Research commissioned by the NIHRC in 20043 highlighted a number of areas in which the rights of LGB people in Northern Ireland were inadequately protected.    Research conducted by Youthnet recorded significant levels of experience of homophobic bullying and harassment of young LGB people in Northern Ireland.4 A recent survey by the Equality Commission for Northern Ireland of awareness of equality issues among the population, suggests that there is considerable work to do to change attitudes in Northern Ireland to LGB persons: a considerable minority of respondents indicated that they would mind if a relative or friend was in a relationship with a LGB person (29.1%).5   

2.4 Moreover, the same survey reported low levels of awareness of legislation prohibiting sexual orientation discrimination.  Only 33% of respondents were aware of the Employment Equality (Sexual Orientation) Regulations in stark contrast to the 84% level of awareness of both the Sex Discrimination Order and Fair Employment and Treatment Order. A strong, energetic and well-resourced campaign will therefore be particularly important for increasing awareness of these new rights and obligations amongst the Northern Ireland population.  Such a campaign should set targets for increasing awareness and monitor the outcomes to ensure that targets are met.

2.5 While we strongly support the proposal to bring forward new regulations to prohibit sexual orientation discrimination in relation to the provision of goods, facilities and services, in general terms, we are concerned that the proliferation of anti-discrimination regulations in Northern Ireland may serve to further confuse the general public and therefore seek urgent reform of the equality law framework by way of a Single Equality Bill. 

2.6 We have a number of general concerns about the proposed regulatory scheme set out here.  We are worried that the envisaged regulations will not bring the prohibition on sexual orientation discrimination fully into line with the legislation prohibiting discrimination on other grounds.   For example, an express prohibition on harassment is not included in the regulations.  Further, an extensive range of exemptions may, if enacted, threaten to undermine the overall principle and effectiveness of the legislation.  In broad terms, the principle of ‘levelling up’ of protection should apply across all the relevant grounds and the possibility for exemption from the principle of non-discrimination should be strictly and narrowly construed, in line with the jurisprudence from the European Courts of Justice and Human Rights.  

2.7 Finally, children may be particularly vulnerable to bullying, harassment and discrimination arising from their relationship to a parent/guardian or other family member or friend and we are particularly concerned that the specific needs and rights of children may not be sufficiently accounted for in the proposed scheme.  

3.  Response to Consultation Questions

Q. 1 Do you agree that the new sexual orientation regulations should apply to goods, facilities and services?

Yes.  The omission of such protection has been an anomaly in the rights for LGB persons to be free from discrimination.  The extension of protection by these regulations will underscore the values of dignity and respect for the fundamental rights of the whole of the community in Northern Ireland.  For these reasons, it is important that exceptions to the legislation are narrowly framed.  Law Centre (NI) strongly supports the extension of the prohibition against sexual orientation discrimination in the provision of goods, facilities and services and in the exercise of public functions.  We are encouraged that the regulations will apply, on the face of it, to schools education, housing, advertising and private clubs. 

Q. 2 Should the concept of goods, facilities and services have the same scope as in other equality enactments, in particular Part 3 an Part 4 of the RR(NI) Order 1997?

We are broadly content that the same concept of goods, facilities and services apply here as in relation to the RRO and we are pleased that, subject to consideration of Q. 3 below, no exception will be permitted to allow businesses to limit access to their goods and services on the basis of an individual customer’s actual or perceived sexual orientation.

Q. 3 Do you agree that we should provide an exemption from the prohibition on sexual orientation discrimination so that services to meet a specific and justified need can be provided separately to different groups on the basis of their sexual orientation?

As we have argued above, an exemption from the principle of non-discrimination should be narrowly construed.  We understand that the purpose of such provision is to address the forms of disadvantage and exclusion that have been experienced by members of the LGB community in Northern Ireland and we recognise that targeted measures may be required to address the needs of these groups.  We are therefore content that this exception should only apply where there is clear and widely accepted justification for separate services and the measures taken are strictly proportionate to needs to be met. 

Q. 4 Do you agree that premises should be covered by the sexual orientation regulations?

Yes.  We welcome the extension of the prohibition of sexual orientation discrimination to the disposal or letting of premises and we note that this would make these regulations compatible with other anti-discrimination legislation in Northern Ireland. 

Q. 5 Do you agree that an exemption should be provided for selling or letting of private dwellings as described in this consultation paper?

In keeping with the need for equivalence between this and other anti-discrimination provisions, we recognise the basis for this exemption.  We are pleased that no exemption will apply in relation to the letting of rooms in a private home which is used as a commercial business, such as a bed and breakfast or guesthouse.  We would caution that the need for this exemption, along with other exemptions, is kept under scrutiny; as Stonewall have argued in their response to the DTI consultation in GB, ‘In 2006, it seems no more acceptable that the law intentionally provides for a landlord or one of their relatives to object to sharing their bathroom or kitchen with a black person than it does for them to object to sharing with someone who is lesbian or gay.’[6]  We look forward to further consultation on this issue, and indeed on the range of exemptions that apply across the full body of anti-discrimination legislation in Northern Ireland as part of the process of developing a Single Equality Bill for Northern Ireland.

Q. 6 Do you agree that private members clubs should be included in the sexual orientation regulations?

Yes, we welcome the inclusion of private members clubs in the regulations. 

Q. 7 What is your view on our proposal that both private and members clubs and associations should be permitted to include having a particular sexual orientation as a membership criterion, but only where this criterion is explicitly connected to the purpose for which the club has been established?

We consider that there will be a number of instances where the sexual orientation of members is an important component of membership of private and members clubs, where the sexual orientation of its members is closely and legitimately associated with its primary purpose.    We are therefore content that this exemption should only apply in such narrowly defined circumstances and look forward to further elaboration of the terms of the regulations in this regard by way of a Code of Practice.  

Q. 8 Do you agree that the new sexual orientation regulations should apply to public functions as well as to goods, facilities and services?  Do you think that any specific additional exceptions might be needed from a prohibition on sexual orientation discrimination in the exercise of public functions?

We support the application of the new sexual orientation regulations to public functions.  We see this as an important complement to the obligations on public bodies arising under the terms of Section 75 of the Northern Ireland Act (1998). This will include the activities of the police and local authorities and we welcome the clarification that the regulations will apply to anyone exercising a public function, including where the function is undertaken by a private or voluntary body on a public authority’s behalf.

We do not consider that any further exemptions should be envisaged within the regulations. 

Q. 9 Do you agree that schools should be covered by the sexual orientation regulations?

Yes.  Our comments in this regard are guided by the standards of international human rights law to which the UK is a party.  Article 2(2) of the United Nations Convention on the Rights of the Child (UNCRC) (1989) requires states to take ‘all appropriate measures’ to ensure that the child is protected against all forms of discrimination on the basis of the status, activities, expressed opinions or beliefs of the child’s parents, legal guardians, or family members.  Given that discrimination on the grounds of sexual orientation is already unlawful in relation to education in further and higher education under the terms of the Employment Equality (Sexual Orientation) Regulations (NI) 2003, we see no reason why, in principle, other forms of education provision should be excluded.   Young people of the 16 – 18 year age group may choose to be educated in either a school or a college of further education and we find it difficult to conceive that the protections against discrimination on the grounds of sexual orientation would differ depending on the educator provider.  We therefore strongly welcome the decision to extend the protection from discrimination on the grounds of sexual orientation to schools and are pleased that this extends to discriminatory treatment arising from the sexual orientation of a parent, carer or other friend or family member.

Concerns arise, however, in relation to the level of protection from bullying and harassment in an education environment and our comments in response to Q. 15 refer.  Homophobic bullying and harassment is a significant problem in Northern Ireland.  A survey by Youthnet in 2003 showed that 44% of respondents had been bullied at school because of their sexual orientation.  33% believed this had lead to lower academic achievement; 25% truanted; 15% dropped out and 9% changed school despite all the associated disruption thereby entailed.6  This suggests that the problem of homophobic bullying and harassment may jeopardise a child’s right to an education which engages a state’s obligations under both the UNCRC and the European Convention on Human Rights.7  The research also found that LGBT young people also more likely to attempt suicide or self-harm and are five times more likely to be treated for depression.

We do not think that the obligations on schools to act to challenge and address homophobic bullying and harassment are sufficiently robust.  The proposal here envisages a school becoming liable to a claim of discrimination only where it fails to treat homophobic bullying as firmly as any other kind of bullying.  We would prefer the legislation to encompass a vicarious liability model which is engaged where a school has failed to take the steps necessary to prevent such treatment.  This would accord better with existing legal obligations on schools to take measures to prevent all forms of bullying.  We are also critical that the ‘behaviour of pupils towards each other will not be caught directly’ by the legislation and that the consultation document fails to address the potential problem of homophobic behaviour by pupils towards LGB teachers.  Strong and comprehensive systems of pastoral support and other forms of specialist support should be available to schools to help them address the issues presented by homophobic bullying and harassment and this will need to be properly resourced. 

Q. 10 Are there any circumstances in which you consider that schools, or a part of the schools sector, should be exempted from the regulations?

We do not consider there are any grounds for exempting schools, or part of the schools sector from the regulations.  To permit such an exemption would be in violation of the principle of respect for the best interest of the child by exposing children to the risk of homophobic bullying, harassment and discrimination.  It would also be in contravention of standards enshrined in international human rights law. The consultation document focuses particularly on the issue of teaching in schools and whether this should be covered by the regulations.  To exclude teaching from the ambit of the regulations would, we believe, gravely erode the fundamental principle behind the regulations and jeopardise its overall effectiveness.  Schooling can play an extremely important role in positively influencing societal attitudes.   Our education system must reflect the values of mutual respect, understanding and tolerance.  We otherwise risk creating a climate in which homophobic bullying and harassment (and indeed other forms of bullying and harassment) is permitted to develop unchecked.    

We note that the Government has developed guidance for schools on relationship and sexuality education which encourages schools to develop a policy for delivering this part of the curriculum ‘in keeping with the ethos and moral framework of the school’.  We are strongly of the view that the ‘ethos and moral framework’ of a school must not be permitted to serve as a basis on which homophobic attitudes may be allowed to develop.   We welcome the development of a revised curriculum in 2007 which will address issues of personal development, relationships and sexuality including respect for differing views on homosexuality.

Q. 11 Are there any areas of activity for schools for which you consider special provision needs to be made?

In light of our comments above, we do not consider there to be any areas of activity for schools for which special provision should be made.

Q. 12 Do you consider that an exemption should be provided from the regulations for some of the activities of religious organisations?

We would welcome clarification on whether it is proposed to define a ‘religious organisation’ within the framework of the regulations.

Given the level of charitable and voluntary work undertaken by religious organisations within communities, we are pleased that this activity by religious organisations will be regulated by the regulations.  Equally, it is appropriate that the provision of services contracted by a public authority or commercial services provided by a religious organisation will be covered by the regulations.  

We note, however, that it is intended to permit exemption from the regulations for religious organisations in relation to ‘activities closely linked to religious observance or practices that arise from the basic doctrines of a faith.’  We have argued above that exceptions to the principle of non-discrimination should be narrowly defined and we note that the consultation document refers to the ‘need to …clearly defin[e]’ the circumstances in which such an exemption would apply.  We are not persuaded, however, that an exemption restricted to activities that are ‘primarily doctrinal’ is sufficiently clear and precise. 

Q. 13 Do you agree that these exemptions should be restricted to activities that are primarily doctrinal?  If there are any other activities that you consider should be covered by an exemption, what are these and why do you consider that they need to be exempted?

Like schools, religious organisations can play a very important role in shaping societal attitudes.   We do not therefore consider that any other activities should be covered by an exemption from the legislation.  

Q. 14 Do you agree that an exception should be provided for charities that provide services specifically to people because of/according to their sexual orientation?

We agree that this exemption should only be permitted to apply where the charity’s objectives specify a beneficiary group on the basis of sexual orientation and that restricting the charity’s activities to a group defined by sexual orientation is necessary to meet the needs of the beneficiary group.

Q. 15 Do you agree that the sexual orientation regulations should include direct and indirect discrimination as well as victimisation?  Are there any particular considerations or situations that should be taken into account in how such provisions are drafted?

We strongly agree that the regulations should include direct and indirect discrimination as well as victimisation.  We note that the prohibition on direct discrimination will apply where the discrimination is on the grounds of actual and/or perceived sexual orientation as well as the actual and/or perceived sexual orientation of another person with whom he/she associates.  We further welcome the proposal to extend the right of a civil partner to bring a direct discrimination claim against a provider of goods and services where he or she has been denied access to goods and/or services.  

In relation to indirect discrimination, our concern relates to the definition to be enshrined in the regulations.  In accordance with the principle of ‘levelling up’ across anti-discrimination enactments, this definition should require that the application of a provision, criterion or practice which puts persons of one sexual orientation at a disadvantage may only be objectively justified by reference to a ‘legitimate aim and the means of achieving that aim are appropriate and necessary’.9  We are concerned that the illustrative example given in the consultation document does not adequately reflect the requirements of the indirect discrimination test: the suggestion in the example is that a respondent may meet a claim of indirect discrimination by demonstrating that there is ‘good reason’ why the disputed provision, criterion or practice has been applied in the manner it has been.  

We are pleased to note that protection against victimisation is covered by the regulations and that this will extend to those who have supported another in pursuing a sexual orientation complaint or other action.

We are very dismayed, however, that the regulations will not offer express protection to LGB persons from homophobic harassment beyond the protection afforded in the workplace and in institutions of further and higher education by the 2003 Employment Equality (Sexual Orientation) Regulations (NI).  We understand that this is because of concern expressed during the passage of the Equality Act 2006 about defining harassment in the context of the provision of goods, facilities and services.  This is not an insurmountable hurdle and the failure to improve protection on this front is a lost opportunity.  

We note that OFMDFM is minded not to expressly legislate for harassment in these regulations at this time, but to consider the matter further in the context of the future Single Equality Bill.  While we accept that the Single Equality Bill will afford the opportunity for a major review of all equality legislation, we nonetheless consider it inappropriate to fail to legislate on this matter now for a number of reasons.  First, it is insupportable that harassment will be prohibited in colleges of further and higher education but not in schools.  This means that a young person who attends school will have less protection from harassment than a young person attending a college of further education.  Second, equivalence with other equality enactments requires that harassment on the grounds of sexual orientation in the provision of goods, services and facilities should be unlawful in the same way as harassment on the grounds of race, sex, religion and belief.  Finally, a failure to legislate at this time risks sending out a message that harassment on the grounds of sexual orientation is not as ‘serious’ as harassment on other grounds.  We fail to see why it should be more difficult to legislate to prohibit harassment because of sexual orientation than on other grounds and we would recommend serious and prompt reconsideration of this position.      

Q. 16 Do you agree that discriminatory practice should be included in the scope of the sexual orientation regulations?

We welcome the proposal to make discriminatory practice unlawful under the regulations and that the Equality Commission for Northern Ireland should have enforcement powers in respect of discriminatory practices on the grounds of sexual orientation in the provision of goods, facilities and services.  It will be important that the Equality Commission is adequately resourced to take up this new enforcement power.

Q. 17 Do you agree that discriminatory advertising should be included in the scope of the sexual orientation regulations?

Yes.  We strongly support the prohibition on discriminatory advertising in the regulations.  It is proposed that the Equality Commission for Northern Ireland be given exclusive jurisdiction to enforce this provision of the regulations.  In this case, it is important that the Commission is sufficiently well-resourced to do so.

Q. 18 Do you agree that instructions to discriminate should be covered by the sexual orientation regulations?

We welcome the proposal to cover instructions to discriminate within the terms of the regulations.  We recognise that an individual may not only be ‘persuaded or encouraged’ to do so but may also be pressurised to do so by way of inducement or threat. 

Q. 19 Do you agree that validity of contracts should be covered by the sexual orientation regulations?

Yes.  We support the proposal to make unenforceable any contractual term that seeks to exclude or limit the requirements of the legislation. 

Q. 20 Do you agree that the enforcement provisions for the sexual orientation regulations should match those for the other Northern Ireland anti-discriminations legislation?

We note that the arrangements for enforcement under these regulations will reflect those of the non-employment provisions of other anti-discrimination provisions.   We recognise that there is a need for equivalence with the other equality enactments but we look forward to a root and branch review of enforcement in relation to equality matters in the forthcoming consultation on a Single Equality Bill for Northern Ireland.

Q. 21 Do you have any comments on the proposals for how the sexual orientation regulations will be enforced and supported by the ECNI?

We consider that early guidance from the Equality Commission for Northern Ireland in the form of a Code or Practice and/or education campaign will be crucial in promoting a widespread understanding of the new regulations.  We note that it is proposed that the regulations will come into force in November 2006, just one month after the commencement of the new Employment Equality (Age) Regulations (NI) 2006.  Serious consideration will need to be given as to the resources necessary to enable the Commission to fulfil its guidance and enforcement powers under these new regulations.  The Regulatory Impact Assessment for these Regulations indicates that it is intended that ‘the costs of producing on-going guidance for the sexual orientation discrimination regulations will be fully met from within the budget of the Equality Commission for Northern Ireland’.10  What is not clear is whether this refers to the existing budget or new budget allocations to meet these new obligations.  Moreover, the Regulatory Impact Assessment does not attempt to consider the additional costs to be borne by the ECNI in respect of its additional enforcement powers under these regulations.

Finally, we are aware that the ECNI has recently completed a major consultation on the review of its Strategic Enforcement Strategy, which included consultation on the particular substantive issues that should form a key part of its strategic litigation and enforcement work.  We trust that the new challenges and opportunities arising from these regulations will be considered within the framework of the Commission’s new strategic enforcement strategy.

4.  Conclusion

We strongly welcome the proposals to extend the prohibition of sexual orientation discrimination in the provision of goods, facilities and services.  We anticipate that these regulations will send a clear message that sexual orientation discrimination of any form will not be tolerated in our society and will ultimately bring about positive change in the lives of LGB people in Northern Ireland.  We trust that the range of exemptions from the legislation will be narrowly drawn to reflect the fundamental nature of the right to be free from discrimination. We hope that you find these comments useful.  We would be happy to discuss any of the above with you or to engage in further comment as appropriate.