Valoración de las condiciones actuales y posibilidades y límites de un programa de invernaderos

There exist a range of religious exceptions from guarantees against sexual orientation discrimination in the provision of goods and services. Until recently, these were found in the Equality Act (Sexual Orientation) Regulations 200713 (SO Regs 2007), Regulation 14 of which provided that ‘organisations relating to religion or belief’ could restrict the provision of goods and services where their sole or main purpose was not commercial,14 where they were not educational establishments or (local) education authorities15 and where this was necessary to comply with the doctrine of the organisation16 or so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.17

Once again, the familiar alternative justification tests were used, although the compliance test related to the doctrine of the ‘organisation’ and not religion. This expanded the scope of the exception, as did the fact that the exception itself was defined to include organisations relating to belief.

The EqA 2010 retains the test of ‘organisation relating to religion or belief’.18 It amends the alternative justification tests19 in order to cater for organisations following a belief system as opposed to a religion. In the case of religion, the second alternative test is the same as before;20 in the case of a belief system the second alternative justification test is to avoid conflict with the ‘strongly held convictions relating to the belief of a significant number of the belief’s followers’.21

This

12

Schedule 3, Part 6, para. 24.

13 _{SI 2007/1263.} 14 _{Regulation 14(2)(a).} 15 _{Regulation 14(2)(b).} 16 _{Regulation 14(5)(a).} 17 Regulation 14(5)(b). 18_{Schedule 23, para 2.}

19_{Schedule 23, para. 2(7) and (9).} 20_{Schedule 23, para. 2(9)(a).} 21

addresses the anomaly that existed in the SO Regs 2007 whereby organisations relating to belief had to satisfy the second alternative justification regarding ‘strongly held convictions relating to religion’. Whilst this is appropriate in that it applies a logical alternative test to ‘belief,’ it does nevertheless signify a widening of the exception.

In the EqA 2010 an ‘organisation relating to religion or belief’ is defined22 in exactly the same way as ‘organised religion’ in the corresponding sex discrimination exception for religion in goods and services provision in the EqA 2010.23 Whilst the test for determining such organisations is similar in these provisions, uncertainty is cast over the value of the test if it may apply equally to organisations relating to religion and organisations relating to religion or belief, the latter type potentially being capable of applying to a wider range of organisations. Sandberg notes that ‘[t]here is no legal articulation of the difference, if any, between an “organisation relating to religion or belief” and the term ... “organised religion”’.24

Indeed, it has been said that the test of ‘organisations relating to religion or belief’ seems ‘wider than that or “organised religion” under the Sex Discrimination Act 1975’.25

Certainly, ‘this is a matter of practical importance’26

because it indicates that ‘whilst an “organised religion” will always also be an “organisation relating to religion or belief”, an “organisation relating to religion or belief” will not always be an “organised religion”. However, the law remains silent as to the precise difference between the two’.27

The EqA 2010 Explanatory Notes highlight that an example of this exception in practice would be a Church refusing to let out its hall for a Gay Pride celebration as it considers that it would conflict with the strongly held religious convictions of a significant number of its followers.28 Clearly, a Church (as an organisation relating to religion or belief) would be able to demonstrate a religious non-commercial purpose. At the other end of the scale it is unlikely that this religious exception could be enjoyed by organisations whose purposes were not directly and immediately religious so as to satisfy the EqA 2010’s definition in Schedule 23, para.

22_{Schedule 23, para. 2(1).} 23_{Schedule 3, Part 7, para. 29(3).}

24 _{R. Sandberg, Law and Religion (Cambridge: Cambridge University Press, 2011), pp. 124 – 125.}

25

R. Sandberg and N. Doe, ‘Religious Exemptions in Discrimination Law’ (2007) 66 Cambridge Law Journal 302, p. 306.

26 _{Sandberg, above n. 24,p. 125.}

27_Ibid. 28

2(1). For example, in the Australian decision of Cobaw Community Health Services Ltd. v. Christian Youth Camps Ltd.,29 a Christian youth camp wished to deny access to its adventure resort facilities (which it otherwise provided without restriction to any religious or secular groups) on grounds of sexual orientation. The Victorian Civil and Administrative Tribunal decided that the defendant organisation could not rely on a religious exception regarding sexual orientation and provision of facilities in the

Equal Opportunity Act 1995 as it was not a ‘body established for religious purposes’:30

there was no religious component to its conduct as an organisation.31

A particular restriction on this religious exception is the fact that, as under the SO Regs 2007,32 the EqA 2010 precludes use of it when a discriminatory act on the basis of sexual orientation is done on behalf of a public authority33 and under the terms of a contract between the organisation and the public authority.34 The role of public authorities in situations of sexual orientation discrimination will be returned to in chapter nine when commenting on the application of reasonable accommodation models to cases where religion has clashed with sexual orientation. In relation to organisations which contract to provide services on behalf of a public body, the EqA 2010 Explanatory Notes explain that a religious organisation which has a contract with a local authority to provide meals to elderly and other vulnerable people within the community on behalf of the local authority cannot discriminate because of sexual orientation.35

Restriction on the use of this religious exception to those organisations relating to religion or belief which are not public authorities has deep practical implications. It appears that, whilst the state is prepared to legislate to allow exceptions based on religion or belief from much heralded and lauded anti-discrimination provisions, it is not prepared to be associated with these types of exceptions in connection with

29

[2010] VCAT 1613.

30 _{per Justice Hampel, at paras 252 – 254.}

31_{Ibid., paras 243 – 248.}

32 _{Regulation 14(8)(b).}

33_{Schedule 23, para 2(10)(a).} 34

Ibid., para 2(10)(b).

35 _{EqA 2010: Explanatory Notes, para. 996. This is similar to the issue of provision of adoption}

services to same-sex couples by Catholic adoption agencies that arose in Catholic Care (Diocese of

Leeds) v. Charity Commissioner for England and Wales [2011] UKFTT B1 (General Regulatory Chamber). This case is considered in chapter 6, section 2.1 and chapter 12, section 3.3.3.

services carried out by religious bodies when they are linked back to the state itself. There are undoubtedly political motivations in not wishing public money to be used or seen to be used to support discrimination on grounds of sexual orientation and especially not through a legitimate religious exception drafted by Parliament to its very own anti-discrimination legislation. In facilitating religious liberty through this exception the state simultaneously seeks to distance itself from this where it may prove too controversial.

A final issue under this anti-discrimination heading relates to the fact that the EqA 2010 now permits civil partnerships to take place on religious premises.36 However, there is a religious exception within this provision to the effect that ‘nothing in [the] Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so’.37

After some delay this exception has now come into effect: s. 202 of the EqA 2010 has enabled removal of the ban in the Civil Partnership Act 2004 on civil partnerships taking place on religious premises meaning the religious exception is now in effect. The ban itself was lifted on the 5th December 201138 by the Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011.39 This evidently provides greater religious liberty on grounds of sexual orientation for same-sex couples where affirmation of such unions is permitted by the religious owners of relevant premises. At the same time it affords flexibility for religious liberty in exempting religious groups from the use of their premises for such activities.