A strengthening and expansion of the sex and race discrimination laws is needed – through the legislation of a comprehensive Equal Rights Act, to ensure equality for everyone.
Whichever party wins the next general election, the new government will have a long list of policy pledges to implement within a limited parliamentary timetable: pledges on taxation, health, jobs, education, transport and the environment. Where will equality issues figure in this crowded legislative agenda?
So far as the lesbian and gay community is concerned, there are at least a dozen different aspects of anti-gay discrimination which require law reform to ensure homosexual equality. These include the equalisation of the age of consent; recognition for same-sex partnerships; parenting rights and protection against job discrimination; and the repeal of homophobic laws such as Section 28, the ban on gays in the armed forces, and the discriminatory statutes that penalise homosexual soliciting, procuring and gross indecency (but not equivalent heterosexual behaviour).
Unfortunately, no government (however enlightened) is going to be able to include all these reforms on its busy parliamentary schedule. When lobbying an in-coming administration, the gay community is therefore going to have to think about priorities.
Of the many possible legislative reforms, there is one that would do more than any other to tackle homophobic bias: my proposal for a comprehensive Equal Rights Act. Ensuring equal treatment for everyone, it would outlaw all forms of discrimination, including discrimination based on sexual orientation.
The special significance of this Equal Rights Act is that it would establish a broad legal framework through which all the different aspects of anti-gay discrimination could be progressively challenged and overturned.
Once the principle of ‘equal rights for all’ is established in law, it would be difficult to sustain any form of legal discrimination against lesbians and gay men (or against anyone else). The unequal age of consent and other forms of institutionalised homophobia would have to be scrapped. For this reason, anti-discrimination legislation should be the number one priority.
The desirability of an Equal Rights Act is demonstrated by the experience of Denmark, France, Norway and Sweden. In these countries, similar legislation already exists. It has been shown to be effective in remedying discrimination and offering victimised lesbians and gays a form of practical redress.
“Our anti-discrimination law gives homosexual people a high level of protection,” says the Danish lesbian and gay rights organisation, LBL. “It doesn’t mean that all prejudice is eliminated; but it does lessen overt discrimination and make unfair treatment easier to stamp out when it arises.”
In Britain, both Labour and the Liberal Democrats are committed to some form of anti-discrimination legislation (although is now uncertain whether Labour’s plans still include protection against homophobic bias).
Irrespective of which party wins the election, there are sound arguments in favour of a strong and inclusive Equal Rights Act, guaranteeing equality for allcitizens and outlawing discrimination on the specific grounds of sex, race, class, religion, political opinion, age, gender identity, sexual orientation, disability, and HIV status.
Pressing for homosexual equality within the context of comprehensive equal rights legislation encourages mutually empowering alliances between everyone suffering exclusion and discrimination, including women, black people, lesbians and gay men, the disabled, and those with HIV. By working together around a common agenda for equality, we increase the probability of getting such laws onto the statute books. The broad-based approach also minimises the likelihood of a homophobic backlash and avoids the marginalisation of lesbian and gay rights as a fringe issue.
Moreover, since the Equal Rights Act guarantees equality to everyone, it’s difficult for opponents to dismiss it as a minority concern or to caricature it as pleading for special rights.
How would this equality legislation work? As the deficiencies of the existing race and sex discrimination laws have shown, there is little value in equality policies unless there are also effective mechanisms to implement them. That requires the creation of a powerful government Department for Equal Rights – headed by a Minister of cabinet rank – with executive authority to monitor, promote and enforce equality of opportunity for all.
Within this Department, there could be separate secretariats to deal with different aspects of discrimination. These could include a Lesbian & Gay Rights Secretariat to look after the specific interests of homosexual men and women, an Ethnic Rights Secretariat to promote the concerns of Black and Asian people, and so on.
To ensure that everyone can exercise their right to non-discrimination, one of the Department’s functions must be the provision of free legal advice and representation to those seeking to challenge victimisation. The legislation must also give them the power to take out injunctions to halt discrimination and to sue for damages and compensation. This would greatly strengthen the possibility of lesbians and gay men winning proper redress when contesting discrimination in areas such as employment, insurance, housing and company fringe benefits for employee’s spouses (like coverage by pension and health-care plans, which are usually denied to the partners of gay employees).
In addition, a Department for Equal Rights should have pro-active powers to scrutinise the practices of all government departments and, where necessary, to issue legally-binding recommendations to remedy homophobic discrimination in areas such as senior appointments to the civil and foreign services, and the government funding (or non-funding) of lesbian and gay projects like counselling services and HIV prevention campaigns.
As part of a long-term programme to eradicate inequality, the Department’s remit should extend to the setting of statutory Equality Targets and Equality Codes of Practice. These could include the requirement for all major public and private institutions to compile annual Equality Audits and undertake Equality Impact Assessments before new policies are finalised. This would, for instance, legally oblige social services departments and young people’s homes to devise policies to cater for the specific needs of gay teenagers, and would enforce the monitoring of public housing allocations to guarantee equal access for homosexual applicants.
As these examples indicate, an Equal Rights Act could enable many diverse forms of discrimination to be exposed and overturned. While it cannot guarantee that no lesbian or gay person will ever again suffer discrimination, it would prevent the worst excesses. We homosexuals would have an effective legal mechanism for asserting our right to equal treatment. For that reason, an Equal Rights Act ought to be a priority for the gay community, and for everyone else opposed to inequality.
NEW LAW JOURNAL, 14 FEBRUARY 1997
* Peter Tatchell’s latest book is We Don’t Want To March Straight – Masculinity, Queers & The Military (Cassell, £4.99).