From next December, discrimination in employment on grounds of sexual orientation will, for the first time, be prohibited in England, Wales and Scotland. This change in the law is particularly significant for the Church of England.

The European Union, with the strong support of the UK government, agreed to prohibit six kinds of discrimination: sex, race, disability, religion, sexual orientation and age. (The first three of these are already covered to some extent in UK law.) Directive 2000/78/EC covered discrimination in employment and training. The British government implemented this by publishing draft legislation last October and holding a large public consultation. Revised drafts were then placed before Parliament in May and the Employment Equality (Sexual Orientation) Regulations 2003 were approved by large margins in both Houses in June. They take effect from 1 December. Their scope extends explicitly to the appointment of "office holders" (e.g. incumbents) including those made on the recommendation of Ministers of the Crown.

The regulations also contain an exemption exclusively for "purposes of an organised religion" which was added in May at the express request of the Archbishops' Council, who said in evidence to the DTI:
"… it is crucial that [the regulations] do not encroach on the freedom which all religious organisations must have to set and enforce their own conduct rules in relation to those who work for and represent them…. Churches… must not find themselves in a position where the law of the land is preventing them from conscientiously applying their own sincerely held doctrines and beliefs on moral issues."
The Council recommended addition of the same wording that exempts clergy from the Sex Discrimination Act, and the government adopted this idea but changed "religious susceptibilities" to "strongly held religious convictions".

The regulations already contain another exempting clause, available to all employers, whether or not religious in nature. Where being of a particular sexual orientation is a "genuine and determining occupational requirement" and "it is proportionate to apply that requirement in the particular case", then discrimination may be permitted (ultimately, it is up to an employment tribunal to determine each case on its merits). However, this option was thought to be of no relevance to the Church of England. As the Bishop of Blackburn said in the House of Lords:
" There are no circumstances in which we would wish to be able to discriminate against people on the grounds of their orientation as such. I feel like repeating that. We do not have posts or orders where there is a requirement to be heterosexual, or indeed homosexual. But we do have some posts and orders where, irrespective of sexual orientation, be it heterosexual or homosexual, the requirement remains for marriage or abstinence. … All of our posts in the Church of England are open to people of any orientation provided that they are prepared to observe the disciplines of the Church where that is required. We have no intention of discriminating against anyone simply because of their sexual orientation."

The additional clause (see sidebar) does not refer to "being of a sexual orientation" but to "a requirement related to sexual orientation" which is entirely open-ended. However, it may not be self-evident to a tribunal that "marriage or abstinence" applied equally to all people meets this test. The clause also omits reference to the need for proportionality in the application to each particular case, which is a requirement of the EU Directive.

The Joint Committee on Statutory Instruments (JCSI) is the parliamentary committee charged with reviewing such regulations. The JCSI reported serious doubts that this clause was lawful under the European Communities Act 1992, saying: "the body of the Directive affords no special position to religious organisations in the context of sexual orientation… (contrast religion or belief discrimination for which Article 4.2 makes special provision)."

It appears that the Archbishops' Council does not have only clergy in mind. In a letter of 9 June to the JCSI they said: "Many denominations, including our own, have large numbers of lay people who occupy key paid roles nationally or locally in the churches and their agencies, and are as a result expected to live in a manner consistent with the teachings of the church."

The clause proved highly contentious when published, and at every stage of parliamentary review. In part this was because it was a surprise to those who had been consulted earlier. UNISON general secretary, Dave Prentis, said: "Every time we have raised the issue of a possible exemption for religious employers we have been given assurances there would be no wide-ranging provision to permit discrimination. …It seems the government believes that equality stops at the church gates."

Amicus said: "… after the consultation process closed the Government held discussions with Church of England representatives where the offending regulation was cooked up without any discussion with Amicus which is far and away the largest union representing workers in religious organisations."

When debated in the House of Lords, two bishops (Blackburn, Chester) voted for approval and two (Hereford, Worcester) against. Lord Alli said: "This feels more like a provision dreamed up by the Taliban than one suitable for a mature democracy."

The Bishop of Worcester put his opposition more delicately: "A balance must be struck… about whether religious communities may preserve their distinctive character or whether that distinctive character has gone too far outside what the public good has come to see is right."

SIDEBAR TEXT OF ADDITIONAL CLAUSE

(3) This paragraph applies where —
(a) the employment is for purposes of an organised religion;
(b) the employer applies a requirement related to sexual orientation—
(i) so as to comply with the doctrines of the religion, or
(ii) because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers; and
(c) either—
(i) the person to whom that requirement is applied does not meet it, or
(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him
not to be satisfied, that that person meets it.