Clash of rights - Sexual Orientation and Religion
Friday, 19 November 2021 19:09
Sources:
- Equality Act 2010
○ Religion or belief (Section 10)
▪ Religion means any religion and a reference to a religion includes a reference to a
lack of religion
▪ Belief means any religious or philosophical belief and a reference to belief includes
a reference to a lack of belief
○ Sexual orientation (Section 12)
▪ Sexual orientation means a person's sexual orientation towards
□ Persons of the same sex
□ Persons of the opposite sex, or
□ Persons of either sex
- ECHR - Article 9, freedom of religion
○ Article 9(1) Absolute right to hold a religion
▪ Everyone has the right to freedom of thought, conscience and religion; this right
includes … freedom, either alone or in community with others and in public or
private, to manifest his religion or belief, in worship, teaching, practice and
observance
○ Article 9(2) Qualified right - manifestation of a religion
▪ Freedom to manifest one's religion or beliefs shall be subject only to such
limitations as are prescribed by law and are necessary in a democratic society in
the interests of public safety, for the protection of public order, health or morals,
or for the protection of the rights and freedoms of others
○ Lord Nicholls in R (Williamson) v Secretary of State for Employment [2006] 2 AC 246 (HL)
[22]: '[R]eligious belief is intensely personal and can easily vary from one individual to
another. Each individual is at liberty to hold his own religious beliefs, however irrational
or inconsistent they may seem to some, however surprising… This means that
"emphatically, it is not for the court … to judge its 'validity' by some objective standard".
A court should scrutinise a person's claimed religious belief only to ensure good faith
and that it is "neither fictitious, nor capricious, and that it is not an artifice."
○ Kokkinakis v Greece (1993) 17 EHRR 418 (ECtHR), [31]: As well as its religious dimension,
Article 9 provides "a precious asset for atheists, agnostics, sceptics and the
unconcerned". The pluralism inherent in a democratic society, "which has been dearly
won over the centuries, depends on it."
- Framework Directive 2000/78/EC - protects against employment discrimination due to sexual
orientation as well as a number of other factors
- Sexual Orientation Regulations SI 2003/1661
- Religion or Belief Regulations SI 2003/1660
Beliefs
- Grainger v Nicholson [2010] IRLR 4 (EAT)
○ The belief must be genuinely held
○ It must be a belief and not an opinion or viewpoint based on the present state of the
information available
▪ McClintock v Department of Constitutional Affairs [2008] IRLR 29
□ The magistrate refused to handle adoption cases for same-sex couples
because on the evidence he considered it was not in the best interests of
the child; if the evidence changed, so too would his viewpoint - held not to
be a philosophical view or religion in which he actually believed
○ It must be a belief as to a weighty and substantial aspect of human life and behaviour
○ It must attain a certain level of cogency, seriousness, cohesion and importance (it should
have a similar status or cogency to a religious belief)
Equality Law Page 1
, have a similar status or cogency to a religious belief)
▪ Farrell v South Yorkshire Police Authority [2011] Eq LR 934
□ Employee's belief in a conspiracy theory surrounding a 'New World Order'
and the terrorist attacks in 2001 and 2005 - held that although his beliefs did
meet most of the requirements in Grainger, they did not attain a sufficient
level of cogency or cohesion
○ It must be worthy of respect in a democratic society, be not incompatible with human
dignity and not conflict with the fundamental rights of others
▪ Forstater v CDG Europe [2021] IRLR 706
□ F worked for CDG as a consultant - believed that persons could only be
defined by biological sex
□ She wrote on social media that 'trans women are men' and 'it is not possible
for someone who is male to become female'
□ This offended some work colleagues and her consultancy contract was not
renewed
□ F claimed discrimination due to her belief
□ The employment tribunal held that it was not a belief
□ The EAT held that Grainger criteria 5 must be equated with ECHR Article 17:
'Nothing in this Convention may be interpreted as implying for any
State, group or person any right to engage in any activity or perform
any act aimed at the destruction of any of the rights and freedoms set
forth herein or at their limitation to a greater extent than is provided
for in the Convention.'
□ EAT held that F's belief did not fall into Article 17 - it was a recognised belief
□ Also stated that '[I]t is only those beliefs that would be an affront to
Convention principles in a manner akin to that of pursuing totalitarianism, or
advocating Nazism, or espousing violence and hatred in the gravest of
forms, that should be capable of not being worthy of respect in a democratic
society. Beliefs that are offensive, shocking or even disturbing to others, and
which fall into the less grave forms of hate speech would not be excluded
from the protection.'
▪ Bellamy v Mason's Stores 508 F 2d 504, (4th Cir 1974)
□ Ku Klux Klan is not a religion under the (US) Civil Rights Act 1964:
"[T]he proclaimed racist and anti-semitic ideology … takes on a …
narrow, temporal and political character inconsistent with the
meaning of 'religion'".
▪ Arrowsmith v UK (1978) 3 EHRR 218 - recognised pacifism as a belief
▪ H v UK (1993) EHRR CD 44 - recognised veganism as a belief
▪ Political philosophies can be included e.g. socialism, Marxism, communism or free-
market capitalism
Manifestations
- Article 9(1) - recognising the manifestation
○ 'Article 9 does not protect every act motivated or inspired by a religion or belief' - Kalac
v Turkey (1997) 27 EHRR 552
○ The manifestation must be 'intimately linked' to the belief - A v UK (1983) 6 EHRR 558
○ There is all the difference between the practices of getting married in church, and
throwing rice at church weddings - Employment Division, Department of Human
Resources of Oregon v Smith (1990) 494 US 872 (US Sup Ct, 1990)
○ Pichon and Sajous v France - did not recognise the religious belief of two pharmacists
who refused to sell the contraceptive pill, because they were still free to 'manifest those
beliefs in many ways outside the professional sphere.'
○ Williamson - recognised Christian adherence to corporal punishment of school children
○ Skugar v Russia - recognised a Christian's 'sincere' rejection of a tax reference number
because it was the 'forerunner of the mark of the Antichrist' as told in the Bible, despite
evidence to the contrary from the Russian Orthodox Church
○ A v UK - pacifist's request that 40% of her taxes be diverted from weapons and defence
expenditure to other peaceful purposes, was not a manifestation of her belief
Equality Law Page 2
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