Reconciling religion and the ban 'on sexual orientation discrimination

Last week the Upper Tribunal refused the latest appeal in the long running litigation over the legitimacy of proposed amendments to the charitable objects of Catholic Care (Diocese of Leeds). The proposed amendments would allow the charity to continue to discriminate lawfully against same-sex couples in placing children for adoption, bringing head to head the teachings of the Roman Catholic Church and the Equality Act 2010.

Equality legislation has prohibited discrimination on the grounds of sexual orientation in a case such as this since 2008, with an exception for charities that are acting in accordance with their charitable instruments. The oft-cited example of ‘appropriate’ discrimination is Girlguiding UK, which discriminates by only allowing girls into the organisation, but does so legitimately as a restriction that is in their governing document.

When the law was first due to come into force (in the Equality Act (Sexual Orientation) Regulations 2007), Catholic Care applied to the Charity Commission for consent to amend its charitable objects so as to make continued discrimination against same-sex couples lawful. The same law is now enshrined in section 193 of the Equality Act 2010, but the principle remains the same.

The charity commission refused consent to the amendment twice. The original decision went before the Charity Tribunal and the appeal to the High Court, where Briggs J interpreted the Equality Act regulations in line with article 14 of the European Convention on Human Rights: the discrimination would be allowed only if the charity could provide an objective justification. It would need to show that the reason for the discrimination is legitimate, and the means by which it is achieved is proportionate. To continue using the Girlguiding UK analogy, they may be able to justify the restriction to girls’ units on the basis that there is evidence that girls benefit from being able to spend time with members of their own sex and the exclusion of boys is not disproportionate, since they are able to join Scouts.

Objective justification

The charity then sought to show that the discrimination was objectively justified: there was a need for adoptive parents who used the charity, and discriminating against same-sex couples ensured the continued funding from the Catholic Church – thus ensuring the survival of the charity. If the charity were to wind up, there would be a consequential effect on children waiting to be adopted. The discrimination was proportionate because same-sex couples could still adopt through other agencies, or through the local authority, and the needs of the children should be paramount.

The commission rejected this argument, and the charity appealed to the First Tier Tribunal. The tribunal dismissed the appeal on the grounds that while the stated aim of increasing the prospect of a child being placed for adoption was legitimate, the evidence heard at trial did not support the contention of the charity that its continued operation would “inevitably lead to the prospect of an increased number of adoptions”.

Ultimately, the Upper Tribunal, which can only hear appeals on a point of law, found that there had been no error of law, and that the First Tier Tribunal had been entitled to conclude that the continued operation of the charity would not mean that a significant number of children would be placed with adoptive parents, and so the discrimination proposed could not be objectively justified. In fact, some of the evidence presented suggested that the costs of using agencies such as the charity was so prohibitive that local authorities did not use them very often, meaning that there was a surplus of parents on agency waiting lists.

Drawing the line

The case has been seen by some as an attack on the Catholic Church, but detail of the case shows that this is far from the case. The judge recognised that the motivation of the donors in this case was based on a sincerely held religious belief, and one which is in line with the traditions of European society.

Of course, where the line is drawn here is impossible to say – what constitutes a “widely held religious belief” is a question that I do not want to have to answer. Neither would I want to provide a solution to the problem of what is considered “traditional in European society”, but if there is a spectrum at work here, then Catholicism is at the clearer end of that. The tribunal was clear that if it could have been established that there would have been a significant and detrimental effect on children being placed for adoption if the charity were to close, then the interests of the children would have had to have been weighed against the interests of the same-sex couples who were excluded from the charity’s services, and it was possible that the scales could tip in favour of the children.

The tribunal also made it clear that the very fact of the existence of the equality legislation meant that parliament had sent a clear message to society that discrimination on the grounds of sexual orientation was not to be tolerated in the UK. This puts the UK in a slightly different position to other European countries without similar legislation, and is why some of the European cases need to be read with an element of caution.

Although the appeal has not been allowed, the courts have not dismissed out of hand the possibility that the charity could have justified the proposed discrimination. On the facts, however, the case for discriminating against same-sex couples could not be made, and so the proposed amendment to the objects has not been approved. The case could still be taken further but I suspect that the costs involved are a significant factor in any decision.