Religious Belief vs Sexual Orientation

Religious Belief Vs Sexual Orientation – Which Protected Characteristic Wins The Battle?

Key Contact: Claire Knowles

Author: Yannick Ramsamy

The Court of Appeal’s judgment in Cornerstone (North East) Adoption and Fostering Services Ltd v Office for Standards in Education, Children and Skills (Ofsted) [2021] EWCA Civ 1390 will prove key in understanding the approach which will be adopted by tribunals when sexual orientation conflicts with a party’s religious beliefs.

The Battleground

Cornerstone, an independent fostering agency, recruits and supports carers for children in local authority care who need to be fostered, or in some cases adopted. The Respondent (Ofsted) is the statutory body whose functions include the registration, regulation and inspection of independent fostering agencies.

Following an inspection of Cornerstone, Ofsted concluded that Cornerstone recruitment and selection process for foster carers did not comply with the requirements of the Equality Act 2010 (EA 2010) and the Human Rights Act 1998 (HRA 1998). This is on the basis that Cornerstone only accepted heterosexual evangelical Christians as potential carers. Cornerstone’s Code of Practice for carers mandated that carers declare to comply with the requirement of:

“[setting] a high standard in personal morality which recognises that God’s gift of sexual intercourse is to be enjoyed exclusively within Christian marriage; abstain from all sexual sins including immodesty, the viewing of pornography, fornication, adultery, cohabitation, homosexual behaviour and willful violation of your birth sex.”

Ofsted stated in its report that this policy was discriminatory on the grounds of sexual orientation and required Cornerstone by 31 July 2019, not to discriminate in its recruitment of foster carers.

On 19 June 2019 Cornerstone issued judicial review proceedings, seeking a declaration that Ofsted’s findings were unfounded and an order quashing Ofsted’s requirement not to discriminate as well as damages. The judicial review application was unsuccessful before the High Court. Cornerstone subsequently appealed to the Court of Appeal. An important aspect of Cornerstone’s appeal was that: (a) Ofsted’s report was a disproportionate limitation on the right of Cornerstone to manifest their religion; and (b) Cornerstone’s policy was a proportionate means of achieving a legitimate aim in that, in the absence of the policy, the wellbeing of current carers, future carers and children would be affected.

Court of Appeal Findings – The societal importance of protecting against the discrimination of homosexuals

The Court of Appeal considered whether Cornerstone’s policy could be justified, under section 19 of the EA 2010 for indirect discrimination and under section 193(2)(a) in respect of direct discrimination, an exception which allows charities to restrict the provision of benefits to persons who share a protected characteristic where that is a proportionate means of achieving a legitimate aim.

The Court of Appeal unanimously rejected Cornerstone’s appeal. The following determinations in its judgment appeared to be significant in rejecting the appeal:

  • Cornerstone’s policy, which specifically requires carers not to engage in homosexual behaviour, is as clear an instance of direct discrimination “because of” a protected characteristic as can be imagined;
  • in the context of whether the policy could be justified, the court was clear in its view that the detrimental impact on society and on individuals of discrimination on the ground of sexual orientation has led the law to set a demanding standard of justification. The court should not underestimate the continuing legacy of centuries of discrimination against homosexuals and, the court should be slow to accept that prohibiting fostering agencies from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion; and
  • An important purpose of the EA 2010 is to support progress on equality and it must be recognised that religious doctrine does not stand still. The law is entitled to recognise the rights of those who might wish to be free of a discriminatory practice currently endorsed by their faith. It is only by protecting those who are discriminated against in small numbers that equality can be progressed for wider communities.

What does this finding mean for employers who hold certain religious beliefs?

Significantly, the Court of Appeal did not rule out the possibility of a policy of Cornerstone’s nature being justifiable according to an evidenced-based case. However, in Cornerstone’s case it had failed to provide credible evidence that, in the absence of their policy, there would have otherwise been a seriously detrimental impact on carers and children. In this context it was impossible to conclude that the ability to discriminate against homosexuals was a matter of such importance that, without it, the wellbeing of current carers, future carers and children would be seriously affected. Cornerstone provided no evidence to this effect.

It is interesting that the Court of Appeal did not rule out Cornerstone’s policy being justifiable in theory. This potentially leaves the door open for organisations to successfully demonstrate that a policy which discriminates against homosexuals is justifiable, although it is clear that the evidential threshold for such justification would need to be significantly high.

If you have any questions regarding the implications of this case please feel free to contact the employment team.

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