Sex means gender, not orientation, court rules

Scottish court overturns ruling on meaning of ‘sex’ in the Sex
Discrimination Act and sets out comparisons in bias claims

The Scottish Court of Session has overturned the Scottish Employment Appeal
Tribunal’s ruling that "sex" in the Sex Discrimination Act 1975
should include sexual orientation, in MacDonald v Ministry of Defence.

The SDA makes it unlawful for an employer to discriminate against an
employee on the grounds of sex. It states, "A person discriminates against
a woman in any circumstances relevant for the purposes of any provision of this
Act if… on the ground of her sex he treats her less favourably than he treats,
or would treat, a man." This applies equally to the treatment of men.

MacDonald had been an officer in the RAF for nearly eight years when he had
to compulsorily resign after he informed his commanding officer that he was
homosexual, contrary to the then MoD policy.

Following his resignation, MacDonald presented an application to the
employment tribunal that the RAF had discriminated against him, contrary to the
SDA as read with the Equal Treatment directive. The ET rejected his claim on
the grounds that less favourable treatment on the grounds of homosexuality was
not covered by the SDA.

MacDonald appealed to the EAT which held that the UK’s obligations under the
European Convention on Human Rights required the EAT to interpret the SDA as
covering sexual orientation, even though judgment was given prior to the Human
Rights Act coming into force.

The MoD appealed to the Inner House of the Court of Session, which issued
its majority decision on 4 June 2001.

All three judges agreed that "sex" in the SDA could not be
interpreted as including sexual orientation.

In his minority view, Lord Prosser considered that section 5 of the SDA,
which requires a comparison between persons of a different sex but with the
same relevant circumstances, meant the correct comparator for a homosexual man
was a heterosexual woman, as both would be attracted to a man. So in his view,
MacDonald’s claim succeeded because he was treated less favourably than a
heterosexual woman would have been, and so was discriminated against on the
grounds of gender.

The majority view, however, and so the decision, was that MacDonald must
fail and the EAT’s decision be overturned.

The decision was that the correct comparator for a homosexual man was a
homosexual woman, because the relevant consideration was how a woman who had
breached the same policy, ie was attracted to the same sex, would have been
treated. In such circumstances, a homosexual woman would also be forced to
resign. On that basis, MacDonald was not discriminated against on the grounds
of gender.

The decision was that the SDA was not incompatible with the ECHR as it only
covered gender discrimination and the Human Rights Act did not require the
courts to add into legislation provisions that had been omitted.

The MoD had conceded that it had acted in breach of MacDonald’s human rights
under Articles 8 and 14 of the Human Rights Act, so he was entitled to
compensation for that breach.

The court queried why the MoD had brought the appeal, since success would
have no practical effect on its liability. The MoD argued that the appeal was
necessary on public policy grounds in order to have the question settled for
other cases.

The effect of this is to create two-tier rights. Public authority employers
may not discriminate on the grounds of sexual orientation as this is contrary
to Articles 8 and 14 of the HRA, which are directly enforceable against public

Private employers may discriminate in that way because there is no provision
preventing such discrimination, at least until December 2003.

By Tom Flanagan, a partner and head of the employment and pensions group,
and Charlotte Hamer a professional support lawyer, in the employment and
pensions group of City law firm Stephenson Harwood

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