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Celebrating 20 years of legal workplace protections for lesbian, gay & bisexual people

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Photo by Cecile Johnsen

Celebrating the Employment Equality (Sexual Orientation) Regulations 2003

It is twenty years since the making of the Employment Equality (Sexual Orientation) Regulations 2003 providing for the first-time explicit protection against discrimination for lesbians, gay men and bisexual people. Until then, while some important protections had been carved out through human rights law (see, for example, Ghaidan v Godin-Mendoza [2004] 2 AC 557), there were no provisions addressing sexual orientation discrimination in terms.

To many it had seemed that sexual orientation discrimination was a form of sex discrimination: what causes discrimination against gay, lesbian and bisexual people is their sex. If a man loves a woman, that wouldn’t by itself be a cause for discrimination or harassment, but where a woman loves a woman, the position might be different. But the House of Lords concluded otherwise (Pearce v Governing Body of Mayfield Secondary School [2002] ICR 198), as did the CJEU (Grant v South-West Trains Ltd (Case C – 249/96) [1998] ICR 449). So it was that there was no explicit protection against sexual orientation discrimination in domestic law until 2003 when the Employment Equality (Sexual Orientation) Regulations 2003 (SI. 2003/1661) were made to give effect to eventual action by the EC in the form of the Framework Directive 2000/78/EC.

The 2003 Regulations were limited in scope. They only covered work related discrimination and contained many exceptions, in particular taking outside their scope benefits referable to marital status. This affected many pension and insurance entitlements, since at the point, of course, lesbians and gay men could not marry. It took another four years to get protection outside the employment sphere, and it was not until the coming into force of the Equality Act 2010 that provision comparable to that addressing sex and race discrimination was achieved.

In the meantime, but not until December 2005 (with the coming into force of the Civil Partnership Act 2004), same -sex relationships came to be legally recognised (though difficult to believe as it is, the ECtHR did not declare a general right to recognition under the European Convention on Human Rights until this year; Fedotova & O’rs v Russia (App. nos. 40792/10, 30538/14 and 43439/14) (Jan. 2023)).

It was not until 10 years after the making of the Regulations that the Marriage (Same Sex Couples) Act 2013 was enacted, bringing with it (almost) true equality for lesbians and gay men.

The 2003 Regulations were a first step towards equal treatment and for that reason they can be properly celebrated but albeit in the acknowledgment that when made there was still a very long way to go.

 

Author: Karon Monaghan KC