Equality: LGB and Trans people

Where do we stand on equality nowadays?

In the last hundred years and more there has been so much discrimination, of so many different kinds, against LGB and Trans people---and there's been so much reform in the last six years, not all of it fully or accurately reported---that it's very understandable that many of us a bit perplexed about where we really stand. This page tries to give us a bird's-eye view of the facts about our current situation.

Gender Recognition Act

This Act, an enormously significant change to the law, allows transgendered people to change their birth certificates and live in their true gender. This is a wonderfully welcome development. For detailed information about the working of the Act we can do no better than refer you to the expert websites of Press for Change and The Gender Trust.

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Criminal law

The Age of Consent to sex is now equal.

The minimum age at which a young person can lawfully consent to sex is now 16, equally, for men with men and men with women. There is still no legislation defining an Age of Consent between women, but the Courts seem to be acting on the Common Law principle that the age of consent for sex between women is also 16. (Why has lesbianism never been specifically covered by legislation? Go figure. It has nothing to do with Queen Victoria not believing that lesbianism existed ---that was a joke invented in the 1920s that's now become an urban myth. But it is true that in the 1920s one (male) MP argued that to legislate about sex between women would simply encourage women to think about it!)

Gross indecency has been abolished.

The old offence of "gross indecency" was created in 1885, re-established in the Sexual Offences Act 1956, and then significantly modified in the Sexual Offences Act 1967 (the "Arran Act", hooray). From 1967 to 2003 this law criminalised all sexual contact between men "in public"---and the courts interpreted "in public" very widely. It applied only to men, not women. Many thousands of gay men were wrongly criminalised by this over the years.

However, "Gross indecency" was abolished by the Sexual Offences Act 2003. Not before time.

Homophobically-motivated crimes

If a crime can be shown in Court to have been motivated by homophobic prejudice then the Court has to impose a stiffer sentence to reflect the homophobic motivation. This isn't about the sexual orientation of the victim, it's about the motivation of the person in the dock, so it would apply where the victim of a homophobic attack had been attacked because they had an LGB member of their family, or were just known to the involved in fighting homophobia. (Criminal Justice Act 2003 section 146)

However, the Act does not include crimes where the motivation was specifically transphobic. Intercom has argued to central government that this is unfair, and we won't let this go.

It is worth noting, though, that in some cases the language used in (say) an attack on a Trans person is in fact homophobic, not transphobic (because the general public doesn't even understand the difference). The law would cover a case like that, and the sentence would be increased. It'd not about the victim, it's about the evidence of motivation.

Incitement to hatred and violence

It is not a crime to incite people to hatred or violence against LGB or Trans people in general, though it would be a crime to incite violence against an identifiable individual. In this respect an important part of the equality jigsaw is missing. It is, for instance, unlawful to incite hatred or violence against people of a particular race or religion.

Intercom tried to get the law changed on this a couple of years ago, but unfortunately there was opposition from a large gay organisation in London which told the MPs we were dealing with that no change in the law was needed. This was their mistake, but it effectively stopped Intercom's movement for reform from getting anywhere.

What are the current laws about sexual behaviour?

The key facts for LGB people are as follows.

Sexual behaviour and activity are now covered equally and fairly. There is no discrimination on the grounds of sexual orientation or gender. Gay men are no longer affected by the ancient nonsense of "are the two of us alone in the house, and is there a key in the bedroom door?". Police can no longer mount local "poof patrols" looking for gay men kissing (or whatever) in the dunes or woodland and walking straight past lesbian and opposite-sex couples who are doing exactly the same thing. These discriminations are a thing of the past, and so, we hope, is the local harassment. (If not, we want to know about it! Tell us!)

Non-consensual sex is of course absolutely unlawful (rape, sexual assault, etc.), and any offender can be heavily punished. Intercom encourages anyone, of any age, who has been affected by rape or a sexual assault to report it as soon as possible: have a look at our page What Could I Do About An Incident?

It is now a crime for two young people who are both under the age of consent to have consensual sex; however, as we understand it, it is not Government policy to prosecute in such a case unless there is a significant age gap, or, of course, if it was not consensual. (If the sex was not consensual then only one person has committed a crime, the one who forced or pressured the other person to have sex.)

In respect of consensual sex above the age of consent, the main issue under the present law is "does an act have the effect of outraging public decency"?. "Outraging public decency" is an oddly vague term, but at least the Courts have to apply it on a fair basis (that is without discriminating on grounds of gender or sexual orientation). In practice it would "outrage public decency" for two people to get seriously intimate or have full-on sex in the middle of a crowded public park, but kissing and hugging would not be an offence. On the other hand it would not "outrage public decency" for two people to have full-on sex even in the open so long as there weren't other people around to be "outraged". If a same-sex couple were spoken to for kissing or hugging or whatever, and they could show that opposite-sex couples were doing, or could do, the same thing in the same place at the same time, the police and CPS would regard prosecution as being a discriminatory act, and therefore we are confident that there would be no prosecution. (Again, if we're wrong---if something like this has happened in the last two years---please tell us!)

Public Conveniences

There is one sort-of exception to this rule about not discriminating. There is an new offence of "sexual behavour in a public convenience", which applies equally to individuals on their own and to acts involving more than one person. (Sexual Offences Act 2003 section 71.) This is discriminatory in that most public conveniences are gender-segregated, so this clause is effectively targeting same-sex sexual activity. It is also pretty well unenforceable and unprosecutable, in our eyes: where is the evidence going to come from? The police begged the House of Lords not to introduce this measure, saying it was useless and unnecessary. As far as we know, the police are not prepared to put any police time into enforcing this sad and silly bit of legislation. Again, if you know different, please let us know.

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Civil law

Let's start with the big one:

Section 28 has gone

Section 28 of the Local Government Act 1988, which prohibited local government from "promoting homosexuality" (whatever that meant), has been repealed and not replaced. It was abolished on 18 November 2003 (Local Government Act 2003 section 122, where it is referred to for technical reasons as Section 2A of the Local Government Act 1986).

The ill effects of this expression of blanket prejudice were far-reaching. Even though no prosecution was ever brought in England and Wales (and only one case in Scotland, which was dropped before it came to Court), it was in its day an open licence for prejudice and discrimination within the local government decision-making process at all levels. Young people were worst affected, even though it did not apply to schools at all for most of its existence. The whole of British society is the better for the repeal of this toxic provision.

Ghost of Section 28

It is very worrying that even in 2007 Intercom has found that a majority of professionals in many public services seem to think that Section 28 is still in force. We have conducted several polls over the last two years, and in every one there has been a clear (or even a large) majority who do not know it has been repealed. We urge all responsible officers, especially those who have responsibility for children and young people, to get to know the law as it actually affects their work.

 

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Anything else?

Oh yes. In fact progress in the last four years has been amazing, and there is now a good deal of civil law that protects LGB people and Trans people from discrimination in our daily lives. Some of us never thought we would live to see equality for LGB people in respect of goods and services, but after a hard-fought battle even that finally arrived on 30 April 2007.

However, it is clear that those who wish to discriminate, either against LGB people or against Trans people, are looking at ways round these new protections, mainly by asking the Courts to protect their own right to freedom of religion, or freedom of association, or freedom of speech.

Religion-based discrimination

So far, the battle in the Courts has been finely balanced.

One Court has held that a church had a right to ban a Trans woman from joining their women's group on the grounds of their religious rights (I think it was specifically the right to freedom of association).

More recently, another Court has told a youth courts magistrate he has not been discriminated against as a Christian by having been told, as part of his duties, to give same-sex couples equal consideration as prospective adopters.

There will be a great deal of new case law on these topics over the next few years, and we expect that it will be focused on people who claim that they have religious beliefs that give them a right to discriminate. One well-funded and almost obsessively anti-gay organisation, the Christian Institute, has said that they now have a fighting fund of £200,000 for funding future Court challenges to LGB equality. Watch this space.

 

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Goods and services

This is truly a remarkable development. Potentially it affects every lesbian, gay man and bisexual man and woman in the United Kingdom. The Equality Act (Sexual Orientation) Regulations 2007, which came into force on 30 April 2007, make it unlawful for any organisation (with certain limited exemptions, needless to say!) to discriminate on the grounds of sexual orientation in providing goods and services. The good effects of this go far beyond bed-and-breakfasts, and Catholic adoption agencies. It applies to:

  • local government (and that includes adult and children's social services, strategy and policy-making, funding and contracts, housing benefits, parks and recreation, libraries, planning departments, public enquiry desks, parish councils, and the actions of local councillors at all levels---everything);
  • all businesses, such as shops, printing-firms, pubs and clubs, fitness-centres, golf-clubs and country clubs, and training-providers
  • adoption (see below)
  • schools and colleges, Connexions, and Youth Offending Teams
  • the Criminal Justice System, including police, CPS, Courts Service, Probation
  • the Civil Justice system, such as the County and Family Courts
  • the entire voluntary and community sectors (with some exemptions here)
  • ... and basically everything that can possibly affect our lives.

The Government says that for the purpose of these Regulations a Civil Partnership (see below) has to be taken as equivalent to a marriage, so that (for example) where an organisation is set up to provide services only for married couples they will now have to include the same services equally for same-sex couples who have a Civil Partnership. (But some organisations may be able to claim that pesky religious exemption---see the box below! Contact us if this is an issue for you.)

Under the Regulations the following kinds of homophobic discrimination are now outlawed:

  • direct discrimination, such as refusing service altogether
  • indirect discrimination such as offering a service only to people who have given blood (discriminates against gay men indirectly since they are prohibited from giving blood)
  • providing services in a less favourable manner (for instance, that might include grudging, hostile or patronising delivery of services).

Trans people are not affected by the new Goods and Services Regulations. It is believed that these issues are already fully covered for Trans people by existing sex discrimination legislation, and the Courts seem to hold this view, though we would like to see new legislation to confirm Trans people's rights in this area. For both Trans people and LGB people there can be legal conflict between our human rights and the claims of those who bring religious belief into Court (see the example in the box below: Good and Services Exemptions).

 

Goods and Services Exemptions

Religious organisations can still legally discriminate in providing goods and services, if they want to, provided that they are not funded by a public authority to deliver these oods and services, and provided they are not doing so "on a commercial basis". There will no doubt be Court cases which will define the working of the Regulations in detail! However, we expect that it would be lawful for a church, mosque or synagogue to refuse to allow an LGB person to join their congregation or use their religious facilities, but it would not be lawful for them to refuse to serve an LGB customer on the premises of a public charity shop they ran for the benefit of the church (or whatever). It is not at all clear whether a church (or whatever) that hires out its community centre or church hall to the public at a commercial rate would be able to claim the exemption in respect of LGB peopleand organisations. This needs to be tested---no doubt it will be!

  

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 Employment and vocational training

It is now unlawful for an employer, or someone who provides work-related training, to discriminate, directly or indirectly, on grounds of sexual orientation. (Employment Equality (Sexual Orientation) Regulations 2003.) This applies to recruitment and interviewing, promotion, and the workplace environment. The only exemption is for posts which are "for purposes of an organised religion". This definitely covers posts such as priests, imams and rabbis (for example), and it may cover religious education teachers in religious schools. The High Court has declared that it does not cover other teachers (e.g. maths or citizenship or SRE) in a religious or non-religious school, nor does the exemption cover school caretakers etc.

There was another change in employment law in 2003 which is very important for us. Where an employee complains to an Employment Tribunal about discrimination, it is now the legal responsibility of the employer to produce evidence that there was no discrimination, instead of the employee being obliged to bring evidence that there was discrimination. This means that employers really have to take active and effective steps from the start to ensure their workplace is discrimination-free, and to document what they'e done. Where a case does go to tribunal and the employer can't show convinving documentation of their actions to prevent discrimination, this will have the effect of strengthening the complainant's case against the employer.

Civil Partnerships

Same-sex couples can now get a Civil Partnership under the Civil Partnership Act 2004, which came into effect in December 2005. A Civil Partnership is a very close equivalent to a civil marriage. With a Civil Partnership you automatically have all the rights as your partner's legal next-of-kin that we so sadly missed for so many decades. Next-of-kin rights mean that you have the same legal right that a husband or wife would have when it comes to (e.g.) decisions about medical care or treatment, and inheritance. There are also pension benefits, though these are not as good as married couples enjoy. On the downside, the introduction of Civil Partnerships brought with it a change in the benefits rules which has been found to financially disadvantage both same-sex and opposite-sex couples who are living together, whether or not they are married or have a civil partnership. If you are concerned about any implications this might have for you, contact your nearest Citizens' Advice Bureau, or Intercom.

Trans people can now marry in their true gender, both in Church of England churches and in civil ceremonies, thanks to the Gender Recognition Act 2004. There are some exemptions for churches,but we are glad to note that the first UK church wedding of a former transsexual to her long-term male partner was celebrated in the South West peninsula.

We send our love and respect to all who have got hitched thanks to either the Gender Recognition Act or the Civil Partnership Act.

Adoption

It has been lawful for many years for lesbian gay bisexual and trans individuals to adopt or foster children. However, for years it was not lawful for any couples to adopt children jointly unless they were married---which excluded LGB/T people who were in relationships wjere they couldn't legally marry.

This was sorted for Trans people by the Gender Recognition Act 2004, which made it lawful for people with a gender recognition certificate to get married in their true gender.

It became lawful for same-sex couples to adopt when the Adoption Act came into force.

In fact as of 30 April 2007 it is now unlawful under the Goods and Services Regulations (see above) for adoption agencies (statutory or voluntary) to discriminate against same-sex couples or LGB people when considering potential adopters or fosterers. There is an exemption for religion-based adoption agencies --- but only until the end of 2008; and in the meantime if they do refuse to treat LGB people equally with straight people they are legally obliged to refer LGB people to an alternative adoption service which does not discriminate.

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