Law and Sexuality

A commentary and resource on Law and Sexuality by Professor Chris Ashford and guests

When Rights Collide

The media are still focused on the phone hacking stuff (possible economic disaster in Italy and Spain is pushed to the ‘by the way’ news slot), and so it’s unlikely that an extraordinary story from the UK Equality and Human Rights Commission is going to get much of a look in. It should.

Yesterday, the Commission released a statement indicating (if it was given leave), that it would be bringing a legal action arguing that Judges have interpreted the law too narrowly in religion or belief discrimination claims, and it is now seeking to intervene in four cases at the European Court of Human Rights all involving religious discrimination in the workplace.

The Commission will propose the idea of ‘reasonable accommodations’ which they argue, will help employers and others manage how they allow people to manifest their religion or belief.

They even offer an example of a Jew asks not to have to work on a Saturday for religious reasons, his employer could accommodate this with minimum disruption simply by changing the rota. This would potentially be reasonable and would provide a good outcome for both employee and employer.

This has in turn led to Stonewall riding into battle. Stonewall Chief Executive Ben Summerskill said in a further press release:

“Stonewall is deeply disturbed at the EHRC’s statement announcing applications to intervene in European Court cases of claimed discrimination against Christians in the workplace. The case features two individuals, Lillian Ladele and Gary McFarlane, who have refused to provide public services to gay people.

The Commission should be crystal clear that if it seeks to defend the claimed right of any public servant to turn away any user of a public service, it will face strong opposition. Gay taxpayers currently contribute £40 billion a year to the cost of Britain’s public services and no lesbian and gay person should ever be deprived of access to them.”

Quite right too, but it’s worth remembering the function of the EHRC. In the words of the Commission, it has a ‘statutory remit to promote and monitor human rights; and to protect, enforce and promote equality across the nine “protected” grounds – age, disability, gender, race, religion and belief, pregnancy and maternity, marriage and civil partnership, sexual orientation and gender reassignment.’
This has meant that the Commission has a barmy set-up of trying to represent a ‘batch’ of ‘minority’ interests which anyone who has ever sat on an equality group will tell you, doesn’t work. Now we see those groups in conflict. This move by the Commission is all the more extraordinary for it apparently didn’t consult with its own board – which would surely have flagged up these issues.
The most obvious difficulty that would arise from a successful move by the Commission is that those Christians who do not want to conduct a Civil Partnership – or down the line – a possible gay marriage – could decline on religious grounds. In parts of the country with a large Muslim or other orthodox religious population, it’s not inconceivable that it might become difficult to have a civil partnership conducted at all. What about the cleaner in a large hotel who doesn’t want to change the bedding in the bedroom of a gay couple – where the cleaner is one of many and someone else could do the room – a successful action by the Commission would arguably render such behaviour acceptable.
This case is about discrimination and ultimately the Commission is trying (and failing) to find a third-way between discriminating against the religious, and discriminating against homosexuals. I often tell students that understanding the law is about the application of values and ideas. There is no such thing as equality in this arena – there is instead the necessary choice of which side you back – a hatred of homosexuals or a hatred of religious freedom.
It is easy for me, as an agnostic gay man, to choose a side in that dispute. It is arguably impossible for any ‘Equality’ Commission and yet, remarkably, that is what they have done.
There is no middle ground in this debate. This is after all, a debate in which the law is cast as an instrument of values and who wins this battle will define legal attitudes to sexuality.
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7 comments on “When Rights Collide

  1. Elly
    July 13, 2011

    as an atheist woman with a queer sensibility I still find it difficult to know whose 'rights' should be upheld in that case.Maybe because I don't always put myself in the position of the 'complainant' in that I think rights is a philosophical subject, regardless of my own self-interest.And as you say, the EHRC has created a situation where it is trying to defend 'rights' of people with conflicting interests.All this has been discussed in the 1990s by critics of British discourses of 'multiculturalism' of course. Homi K Bhaba for example.

  2. Elly
    July 13, 2011

    I saw a similar hypothetical example to that of a 'cleaner who would refuse to change a gay man's bedding' before and I found it a bit offensive to be honest. If you have no examples of actual religious people refusing to physically engage in their jobs, with things that gay people have touched, then I don't think you should use that as an example. It seems unfair to me.Remember most religious people and most gay people do not see their rights and freedoms as being in opposition to each other.

  3. Elly
    July 13, 2011

    sorry I don't mean to spam you, but here is a good post in response to Patrick Strudwick in the Guardian on this subject.http://www.alanalentin.net/2011/07/13/the-antidiscrimination-wars/I will ask Mark Simpson if he has any thoughts on the matter:

  4. Chris Ashford
    July 14, 2011

    No apology needed Elly! Good to have comments 🙂 Just for info to general readers, the four cases are: Nadia Eweida & Shirley Chaplin against the United Kingdom (Application numbers 48420/10 and 59842/10) Ms Eweida was a BA check-in clerk who was sent home after refusing to remove a necklace with a cross; Ms Chaplin was a nurse who was removed from her Exeter hospital’s wards, also because she refused to stop wearing a crucifixPerhaps the more controversial ones:Lillian Ladele and Gary McFarlane against the United Kingdom(Application numbers 51671/10 and 36516/10)Ms Ladele was a registrar with Islington Council who was disciplined after refusing to conduct same-sex civil partnership ceremonies; Mr McFarlane was a Relate counselor who was sacked after refusing to give relationship advice to gay couples.I don't know if I would go as far as to say 'most religious people and most gay people do not see their rights and freedoms as being in opposition to each other.' It depends on a host of factors/issues but you're right that it's equally false to suggest the opposite.On the example issue, of the four cases, two are people wanting to refuse to perform their work – as a registrar and a counsellor. I was attempting to raise the question, of where do we then draw the line? It is perfectly conceivable that a cleaner might encounter a same-sex couple kissing, or be told that a room has a gay couple in it by a fellow worker. If a registrar or counsellor can refuse to perform their work, why not the cleaner (assuming under this application that it can be managed, for example in a large hotel with multiple-cleaners). It could just as easily be someone working in a bar – quiet time of day, number of bar staff on duty, why can't a bar worker refuse to serve someone they believe to be gay?Legally, succeeding in the ECHR applications, could render the above situations also acceptable. I don't think the legal action will succeed (although you never know) but what is more important is that the above instances of discrimination are, given their logical extension from the applications, presumably acceptable in the eyes of the ECHR!

  5. Elly
    July 14, 2011

    well I think the civil partnership one is ridiculous. The job is to carry out civil partnerships according to the law. If gay partnerships are legal there should be no question it'd be part of the job. I don't know. I just thought the cleaner example sounded a bit like putting your own prejudice onto people. Cleaners have very low-paid low-level work. They don't to go round picking and choosing who they clean up after or they'd lose all chance of making a living. And the use of the concept of 'cleaning' made out as if someone might see gay people as 'dirty'.I just find the gay rights movement at the moment seems to be focussing on the conflict between 'religion' and 'gay' identities. And I think it is not a very helpful binary.

  6. Chris Ashford
    July 14, 2011

    Just on the cleaning point – you seem to think I'm coming to it with some middle-class agenda. Until recently, my mum worked as a cleaner – so it's not that hard for me to imagine a cleaner or to recognise motivations etc! 😉

  7. Elly
    July 15, 2011

    Well then you will know that cleaners come across all forms of human life. I should think they'd be the last people to be funny about working with particular kinds of people and their dirt.I will be interested to see how these cases turn out!

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This entry was posted on July 12, 2011 by in equality, human rights, Law.

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