The meaning of sex

Now that I have got your attention, I am sorry to say that this article does
not dwell on the more salacious aspects of the subject. Instead it looks at the
legal situation concerning whether discrimination on the grounds of sexual
orientation is unlawful, either under the Sex Discrimination Act 1975 or the
Human Rights Act 1998. Now we are in the early 21st century, the current legal
situation may seem rather controversial to many of us.

The argument

For some time, advocates have been arguing at employment tribunals that
discrimination on the basis of sexual orientation is in fact discrimination on
the basis of sex. The principal argument used goes as follows: if a man at work
is subjected to any detriment because he is attracted to other men (which his
heterosexual female colleagues would also be) then the detriment is meted out
to him purely because he is a man and not a heterosexual woman. On that basis,
the treatment is on the ground of his gender, since a (heterosexual) woman who
was attracted to men would not be subjected to any detriment.

This argument, long canvassed by legal commentators, has, however, never won
judicial favour until the Scottish Employment Appeal Tribunal applied it in the
MacDonald case (2001, IRLR 431), pointing to the fact that the Human Rights Act
was shortly to come into force in Scotland. This decision, though, while not
binding in any case in England, was overturned on appeal. The Scottish Court of
Session restored orthodoxy by saying the interpretation of the Scottish EAT was
stretching the definition of sex too far. The appropriate comparator was not a
heterosexual person of the opposite sex but a homosexual member of the opposite
sex.

English law

The Scottish Court of Session’s approach has recently been confirmed by the
English EAT in the Pearce case. Pearce was a lesbian science teacher at a
secondary school, who regularly experienced homophobic abuse by the pupils. She
took sick leave as a result of the stress and brought a complaint of unlawful
sex discrimination.

The principal target of the claim was the headteacher, who had told her
simply to ignore the abuse. The EAT confirmed that no sex discrimination had
taken place. This decision was given after the Human Rights Act came into force
and it was not felt that the right to privacy and family life enshrined in the
European Convention made a difference to the result.

However, an EU directive prohibiting discrimination on grounds of sexual
orientation must be implemented in the UK by December 2003. The law will
definitely change then, if not, by case law, before then. Although, of course,
sexual orientation discrimination is to be discouraged in any event, employers
should be considering amending their equal opportunities policies for the
future, and exactly how they will publicise this new area of law within their
workforces. This contains a particul

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