"Sex" in the Sex Discrimination Act concerns gender, not sexual
orientation, according to the Court of Session in Scotland, writes David
Morgan.
The latest judgement in the controversial case of Ministry of Defence v
MacDonald (see employers’ Law, May 2001) was made after the Ministry of
Defence` appealed against an earlier decision of the EAT sitting in Scotland
that had held that "sex" in the Sex Discrimination Act 1975 was
ambiguous enough to encompass discrimination on the grounds of sexual
orientation.
MacDonald had claimed direct sex discrimination against the MoD on the basis
of his compulsory resignation from the RAF following his admission that he was
a homosexual. But in a two to one majority, the court held that the old
orthodoxy should be restored, namely that "sex" in the Act means
gender. The majority held that the Act does not prohibit discrimination on the
grounds of homosexuality and overturned the EAT decision.
The majority of the court looked back to the spirit of the Act at its
inception in 1975 and, in doing so, unanimously held that the term
"sex" unambiguously meant gender. What their Lordships could not
agree on was an appropriate "like for like" comparator.
The majority held that a homosexual man ought to be compared to a lesbian,
which meant that because the former policy of the MoD excluding homosexuals
from the Armed Forces was applied equally to male and female homosexuals, there
could be no sex discrimination. In dissent, however, Lord Prosser adopted a
commonsense factual analysis. For him, the appropriate comparator for a
homosexual is a heterosexual of the opposite gender. In other words, had
MacDonald been a woman he would not have been expelled from the armed forces
for preferring a male sexual partner.
As the Scottish President of the EAT also sits in the Court of Session, we
are now left with an unsatisfactory equal split of opinion among four eminent
Scottish judges.
However, the English Court of Appeal’s judgement in Pearce v Mayfield
Secondary School is anticipated and may clarify this vexed question. Pearce was
unsuccessful in her claim that she had been subjected to direct sex
discrimination in circumstances in which she had been subjected to verbal
abuse, including gender-specific words such as "lesbian" and
"dyke". The EAT dismissed her appeal since there was no evidence to
suggest that a male homosexual would have been treated any differently.
In the longer term, the issue should become less relevant as the European
Commission has implemented the Equal Treatment Framework directive 2002 which,
among other things, introduces a prohibition on discrimination based on sexual
orientation. The UK must implement domestic legislation no later than 2
September 2003.
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In the meantime, though, employers would remain well advised to treat
homosexual discrimination with the same contempt as discrimination on the
grounds of gender.
David Morgan is a solicitor at McGrigor Donald in Glasgow
