Posted by William Bartoli-Edwards, Paralegal
Whose rights are more fundamental when teaching on same-sex relationships?
The Department of Education (DfE) wants all independent schools to teach equality of same-sex relationships. That teaching would be consistent with Ofsted’s requirement for schools to understand and respect different lifestyle choices. However, the proposed move from recommending the teaching as good practice to making it compulsory by 2020 has angered some parts of the independent sector.
The current Education (Independent School Standards) Regulations set out standards of quality to be met when teaching personal, social and health education. Teaching plans should not undermine fundamental British values, such as respect and tolerance of those with different faiths and beliefs, but must also encourage respect for other people. In encouraging respect for other people, independent schools must pay particular regard to the protected characteristics set out in the Equalities Act, including sexual orientation.
Some faith schools take the view that the subject of relationships is only appropriate for teaching at home. For others, a requirement to teach equality in this area is seen as contrary to their freedom to manifest their religious beliefs.
In publishing its draft guidance on teaching about same-sex relationships, the DfE is seeking to clarify the required standard. Teaching that same-sex marriage should not be taking place would be a clear breach of the new rules.
The Christian Institute raises a formal challenge to the lawfulness of the DfE proposals
The Christian Institute instructed Christopher McCrudden, Professor of Human Rights and Equality Law at Queens University Belfast, to consider the lawfulness of the proposed guidelines. Professor McCrudden’s view was that the compulsory teaching of equality in same-sex marriage breaches the right to manifest a religious belief under Article 9 of the European Convention on Human Rights (ECHR). Professor McCrudden also views the change as a breach of the public sector’s equality duty and contrary to the political commitments made when introducing the Marriage (Same Sex Couples) Act 2013.
The protection afforded by Article 9 of the ECHR prevents individuals from being forced to follow the views of others and enables them to acknowledge different opinions without necessarily having to change their own.
If the scope of Article 9 protection extends to institutions as well as to individuals, then the Christian Institute could potentially rely on the Convention as a basis for declaring the new guidance unlawful.
Is equality for some oppression for others?
For governments and institutions, promoting the concept of equality without devaluing another’s opinion is not always easy. By preventing a faith school from teaching its religious doctrine as true and, instead, teaching it as one truth among others or less valid than government opinion, McCrudden argues that the ability to manifest a belief will be significantly limited.
However, for many, arguing the right to promote an absolute truth which views some people as having a lesser entitlement due to their sexual orientation is a bitter pill to swallow. Manifesting a belief doesn’t necessarily equate to validating one belief or discrediting another. Equally, acknowledging and respecting different beliefs doesn’t necessarily authenticate them. If government wants to impact the middle ground by teaching acceptance, they may face pressure to show how acceptance and validation are not synonymous.
The DfE will no doubt respond to The Christian Institute’s concerns and other religious organisations may well voice similar concerns. At a time when sensitivity to freedom of expression and other rights under European law are heightened, schools are faced with balancing the complicated views of students, parents, staff and legislation.
If you have any concerns about what legislation has scope over your school or how to mitigate disruptions, please do not hesitate to contact our Education experts.
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