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Human Rights and Sexuality

By: Louise Smith, barrister - Updated: 30 Jul 2010 | comments*Discuss
 
Sexuality Sexual Orientation Human

It will generally be a breach of an individual’s human rights to discriminate against them on account of their sexuality or sexual orientation.

Equality and Sexuality

Under equality laws, an individual should not be discriminated against because of their sexuality. These laws give protection to people of all sexual orientations: gay, lesbian, bisexual and heterosexual. Specific laws relating to this subject include the Employment Equality (Sexual Orientation) Regulations 2003, the Equalities Act 2006 and the Sexual Orientation Regulations 2007.

These laws also make it unlawful to discriminate against an individual because they are believed to be of a particular sexual orientation – whether or not that is true – or because they associate with individuals of a particular sexuality. There are two distinct benefits of this aspect of the equality laws. It protects a heterosexual person who is incorrectly attributed as having a different sexual orientation – perhaps because of the way they speak or behave. It also means that an individual does not necessarily have to disclose their true sexual orientation in order to enforce their right to be free from such discrimination.

It is fundamental to these equality rules that all people are free from discrimination based on their sexual orientation – regardless of what that orientation may be.

Civil Partnerships in the UK

The introduction in the UK of civil partnerships, under the Civil Partnership Act 2004, contributed to far greater equality for people of all sexualities in many areas of life. These include inheritance, entitlement to benefits and pensions, immigration and parental rights.

Sexual Orientation Discrimination in Employment or Education

The equality laws which legislate against sexual orientation discrimination recognise four different types of discrimination. These apply to discrimination in employment, higher education or vocational training:
  • Direct discrimination – where an individual is treated differently because of their sexuality.
  • Indirect discrimination – where a general rule or practice applies to all but is especially or disproportionately disadvantageous to those of a particular sexuality.
  • Victimisation –where an individual is treated differently because they have relied on, supported or made allegations of a breach of the equality laws.
  • Harassment – to prove that harassment has occurred it is not necessary to show that a person of a different sexuality would not have been subjected to the same treatment. However, an objective test will be applied. In other words, it is not enough that the individual complainant felt harassed – it must be shown that others would feel harassed in the same circumstances.

The laws also make it unlawful to facilitate or assist in discrimination against an individual. Further, employers or service providers could be held responsible for discriminatory acts committed by those under their control.

Sexual Orientation and the Provision of Goods and Services

It is unlawful to discriminate against an individual in the provision of goods or services. For example, the owner of a hotel should not refuse to accept a booking because he knows - or believes - that a person is of a particular sexual orientation. Again this rule applies to all sexualities. Therefore, it would usually be just as discriminatory for a hotel specialising in weekend breaks for gay men to refuse a booking from a heterosexual couple, as it would be for a homophobic bed and breakfast owner to refuse a booking from a gay couple. Equally it makes no difference to the rules if the goods or services are provided free of charge.

However, exceptions do apply. Amongst the exceptions to these equality rules are certain religious and charitable organisations. A religious organisation which supplies goods or services may be exempt from the equality rules where compliance would contravene the beliefs of the organisation. A charitable organisation may be exempt from the equality regulations if its purpose is to provide services for people of a particular sexuality.

The Human Rights Act and Sexuality

As well as specific legislation which makes it unlawful to discriminate against people on account of sexual orientation, the Human Rights Act may also offer some protection – and guidance – on an individual’s human rights.

The UK Human Rights Act gave effect in UK law to the fundamental human rights set out in the European Convention on Human Rights. Article 8 of the Convention concerns the right to private and family life. Included in this is the right to choose one’s own sexual identity. Article 14 of the Convention is the right to be free from discrimination in the way that the other Convention rights are applied. It has been held that individuals are entitled to have the other Convention rights applied equally regardless of their sexual orientation.

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