Updated, 20 Feb 2012 | Following the news recently it would seem that the UK is convulsed by a raging battle between religious observers and, in the words of Baroness Warsi, militant secularists. On the same day, the High Court ruled that Christian prayers held before a council meeting were unlawful, and the Court of Appeal upheld the decision of the High Court that two Christian hotel owners had discriminated against gay clients by not offering them a double room.
Today’s spat, according to The Guardian, involves a letter sent to the Education Secretary Michael Gove by the Trade Union Congress leader “expressing alarm that a booklet containing “homophobic material” had been distributed by a US preacher after talks to pupils at Roman Catholic schools across the Lancashire region in 2010.” From the quotes provided in The Observer, the book sounds pretty offensive:
The booklet, “Pure Manhood: How to become the man God wants you to be”, discusses a boy dealing with “homosexual attractions” which it suggested may “stem from an unhealthy relationship with his father, an inability to relate to other guys, or even sexual abuse”.
The booklet, which claims that “scientifically speaking, safe sex is a joke”, explains that “the homosexual act is disordered, much like contraceptive sex between heterosexuals. Both acts are directed against God’s natural purpose for sex – babies and bonding.”
Interestingly, the complaint mirrors, to an extent, one recently made by pupils at the Jewish Free School (JFS) which had shown information about a ‘gay cure’ institute as part of a discussion about homosexuality in a Jewish studies lesson. I guest blogged about this on Cartoon Kippah website: Teaching Jewish children to cure gays
The TUC’s Barber wrote to Mr Gove that because of the Equality Act 2010, which prohibits discrimination against individuals, “Schools now have a legal duty to challenge all forms of prejudice. Such literature undermines this completely.” Gove apparently responded in the following terms:
The education provisions of the Equality Act 2010 which prohibit discrimination against individuals based on their protected characteristics (including their sexual orientation) do not extend to the content of the curriculum. Any materials used in sex and relationship education lessons, therefore, will not be subject to the discrimination provisions of the act.
Is he right? Part 6 of the 2010 Act provides for education, and section 85 states that a school must not discriminate against, harass or victimise, amongst other things, “in the way it provides education for the pupil”. However, section 89(2) provides that “Nothing in this Chapter applies to anything done in connection with the content of the curriculum.” On a bare reading of these provisions, it would appear Mr Gove is correct.
But, the explanatory notes, drafted by Mr Gove’s Department, provide more information:
… [section 89] makes it clear that the prohibitions in the Chapter do not apply to anything done in relation to the content of the school curriculum. This ensures that the Act does not inhibit the ability of schools to include a full range of issues, ideas and materials in their syllabus and to expose pupils to thoughts and ideas of all kinds.
Perhaps this is where Mr Gove finished reading, because it goes on:
The way in which the curriculum is taught is, however, covered by the reference to education in section 85(2)(a), so as to ensure issues are taught in a way which does not subject pupils to discrimination. This section also gives effect to Schedule 11 which provides some exceptions to the provisions in this Chapter.
So the position is this. A school is permitted to teach about whatever subject it likes, so as not to inhibit it from teaching about a wide range of issues, including, it would seem, controversial views about homosexuality. However, the school must still ensure that those issues are not taught in a way which subjects pupils to discrimination.
So it seems that Mr Gove is incorrect to say that “Any materials used in sex and relationship education lessons, therefore, will not be subject to the discrimination provisions of the act”. Schools are still not allowed to discriminate on the grounds of sexual orientation, religion or race and so have a responsibility to ensure that if they are going to introduce controversial material about gay sex being “directed against God’s natural purpose”, they have to be very careful indeed to balance that material so that gay students are not subjected to discrimination.
I should sound a note of caution (with thanks to the comment below), that although admissible as an aid to construction (see e.g. R (S) v. Chief Constable of South Yorkshire  UKHL 39, in particular Lord Steyn at para 4), the Notes have not been endorsed by Parliament and cannot be decisive of the correct interpretation of the Act. However, more help can be found in the Equality and Human Rights Commission’s simple summary of the position in its guide for schools to the 2010 Act:
The way in which the curriculum is delivered is covered by the Act so you must ensure issues are taught in a way that does not subject pupils to discrimination. In addition, what is taught in the curriculum is crucial to tackling key inequalities for pupils including gender stereotyping, preventing bullying and raising attainment for certain groups.
The EHRC even provides the following example of potential harassment:
During a PSHE (personal, social, health and economic education) lesson, a teacher describes homosexuality as ‘unnatural’ and ‘depraved’ and states he will only be covering heterosexual relationships in the lesson. A bisexual pupil in the class is upset and offended by these comments. This may be unlawful direct discrimination on the grounds of sexual orientation.
It may be that the booklet was used by the Lancashire schools in a sensitive way, perhaps as part of a careful discussion about religious attitudes to homosexuality which may be controversial, but also cannot be simply airbrushed away, particularly at a Roman Catholic, or for that matter Orthodox Jewish, school. Indeed, this was the explanation given by JFS.
If this was the case, it may (just about) have been lawful for the schools to present the material as part of a lesson and not be caught by the Equality Act. An analogy might be history books showing Nazi propaganda about Jews: an important part of history, but it must never be made a joke of or be left unexplained by a teacher – either could lead to discrimination against Jewish students.
It is surprising and a little worrying that the Secretary of State responsible for Education has provided an incorrect summary of the basic principles of equality legislation which apply to schools. It may be that the Education Secretary was quoted out of context [this may be the case - see my update below], but it is difficult to see, even on a charitable reading, what that context could have been.
Despite the bluster on the news, the UK is a both religiously tolerant and broadly secular country. But to ensure this tolerance continues, Ministers of State should make sure they understand their own discrimination law.
Update, 20 February 2012 – I have been reliably informed that the legal content of Mr Gove’s complete letter was a lot more sophisticated than the quote provided by The Observer. I am trying to track this down and will update the post once I have it.
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