LGB legal issues


A precedent set in an employment appeals tribunal in 1982 established that gay men and lesbians could be dismissed simply for being gay or lesbian. The judgement was based on the notion that gays and lesbians "could be a danger to children". The tribunal then when on to conclude that although there was no evidence for this proposition, because a large section of the population believed it to be true such dismissals were valid. Since then, many organisations developed equal opportunities policies which include sexuality and people working for those organisations had some degree of protection. Since December 2003 discrimination in employment on the grounds of sexuality has been made illegal. There is an exception for employers in religious/faith based organisations; this exception was unsuccessfully challenged in the High Court by the TUC in April 2004. The High Court did, however, make it clear that teachers in faith-based schools and nurses in hospices would NOT be considered as exceptions.

TWO conditions have to be met before such discrimination is allowed

1. The employment must be for the purposes of organised religion AND
2. Is necessary to comply with religious doctrine or to avoid conflicting with the convictions of a significant number of the religion's followers.

Another exception is where it can be demonstrated that discrimination is essential. One example of this would be advertising for workers for the Gay Men's Health project at Nottingham Health Shop. The government can also discriminate against anyone "in the interests of national security".

Civil Registration of Partnerships
Many of the legal issues which discriminate against same sex couples arise from the lack of legal status for their partnership. The Government has provided legal recognition through the Civil Partnership Act 2004 (passed November 2004).The first registrations under the new Act took place in December 2005. The Act has required extensive amendments to be made to the tax and benefits system as well as training for registrars.

If you are in a Civil Partnership, you gain all the legal rights, and responsibilities, of someone who is married.

Many unmarried heterosexual couples falsely believe that they are in a "common law marriage" and that this gives them some legal rights. Unmarried or unregistered couples will, however, be treated in the same way as married couples for the purposes of receiving income related benefits and credits i.e. they will receive less than 2 separate single people. All people, regardless of status, are treated individually as regards state pensions. All benefits which employers provide for married couples should also be made available for Civil Partners.

Age of consent for gay men
This was lowered to 18 in 1994 and then lowered again to 16 in 2000. (The age of consent in Northern Ireland is now 17 for everyone).

Lesbian sex
Lesbian sex has never been illegal. Attempts to criminalize it in 1921 were not pursued. As a girl under 16 is not deemed capable of consenting to any sexual act, lesbian sex can only be prosecuted as "indecent assault" on a girl under 16.
Housing Tenure
Until recently, same sex couples had no automatic right to continue the tenure of a house after the death of one partner. In the case of owner-occupied homes, this can usually be remedied by an appropriate will - though wills are sometimes contested. In 2001 a legal precedent was set when the courts agreed that the surviving partner of a same sex couple really was a "partner" and that he should be given the tenure of their rented accommodation. This situation is "firmed up" by Civil Registration of Partnerships.

Funerals and access to partners in hospitals
Who has the right to organise a funeral or have access to someone in hospital normally depends on who is "next of kin". The notion of "next of kin" is not clearly defined in the law and same-sex couples can, in some circumstances, have obstacles placed in their way. Making a "living will" can go some way towards circumventing these problems and Civil Registration of Partnerships should go even further. The Mental Capacity Bill (June 2004) will give legal force to "living wills" when it is enacted.

This is regulated by the Adoption Act (1976). A gay man or a lesbian has always (theoretically) been able to adopt a child, but only as a single person. For a couple to adopt, that couple had to be married - until an amendment in 2002 allowed same sex couples to adopt. The amendment has recently become law.

Fostering is regulated by the Children Act. There is nothing to prevent lesbians or gay men from fostering. Local authorities do allow fostering by LGB people, but many remain cautious about such placements which may be seen as politically contentious.

Homophobic crime
At the moment homophobic crime is not an offence in itself. If you are physically assaulted because of your sexuality it is a crime (assault), but not "homophobic crime". The Criminal Justice Act 2003 provides increased sentences for assault involving or motivated by hostility based on sexual orientation in England and Wales. If the victim perceives the offence to be homophobic and there is evidence to support this, the judge will be required to treat this as an aggravating factor and state to the court any extra elements of the sentence they are imposing because of this factor. When reporting such incidents to the police it is therefore important to tell them that it is a homophobic incident.

Section 28
Section 28 of the Local Government Act 1988 made it illegal for a local authority a) intentionally to promote homosexuality and b) to promote the teaching in schools of the acceptability of homosexuality as a "pretend family relationship". Legally, it should have had no effect on what schools did. A badly worded law, it forgot that Local Authorities have little say in what is taught in schools. Policies on sex education are entirely matters for the school, the Head Teacher and the Board of Governors. Unfortunately, many people in education misinterpreted it, believing that it stopped all mention of homosexuality in schools. This is one of the reasons why homophobic bullying in schools is now rife and why the word "gay" is a catch-all term of abuse in schools. Section 28 was repealed in November 2003.

Ofsted has stated clearly that it expects schools to deal with this issue, but few schools have - they will probably need the stimulus of a few successful costly prosecutions before taking it seriously.

Custody of children after divorce
If a couple divorce and either one of them is out (or "outed") as lesbian or gay, there may be consequences for the custody of any children. Until the early 1980s, all lesbians would - as a matter of routine - lose custody of their children. There were many examples of where fathers who were violent or drunken were given custody because their wives were lesbian. In the 1980s things began to change slowly. Now, the responsibility for children is determined by the 1989 Children Act. Most lesbian mothers are now successful in applying for a residence order, usually without restriction. Gay fathers still encounter prejudice from courts. It is not unusual for paedophilia to be raised, together with concerns about HIV infection. Gay fathers can often find rigorous restrictions on contact with their children. Prohibited step orders have been used to prevent lesbian or gay parents from allowing their same sex partners to have contact with their children.

Gross Indecency and "public sex"
The 2003 Sexual Offences Bill reviewed how the law impinged on sexual activities. When it became a law in May 2004 it removed the offences of "gross indecency" and "buggery" and brought in a more common sense view of sex in public places, though there will be a new offence relating to sex in public lavatories. It has been suggested that the use of offences such as "breach of the peace" may be revived to discourage "public sex" - if so, their application will have to be tested in the courts before any conclusions about their use can be reached. In recent years gay men convicted of gross indecency through consensual sex with men aged between 16 and 18 have been placed on the sexual offenders register (that includes the younger as well as the older person). They will be removed from the register.

Criminal injuries compensation
The Criminal Injuries Compensation Scheme has been changed to include partners of same-sex relationships in the compensation arrangements. The injustice of heterosexual partners receiving compensation while partners in LGBT relationships did not, was highlighted as a result of the Admiral Duncan bombing.

Sex between people under the age of 16
The Home Office has published the following guidance in relation to the Sexual Offences Act 2004. Although the age of consent remains at 16, it is not intended that the law should be used to prosecute mutually agreed teenage sexual activity between two young people of a similar age, unless it involves abuse or exploitation.

Disclosure of information to parents
If, in discussion with a student, the student mentions that he/she is attracted to the same sex, there is no legal obligation to disclose this to parents. If the student is under 16, he/she should be advised that if they mention that they are in an active sexual relationship, then confidentiality between student and teacher may have to be broken – but if the teacher concludes that they are mature enough to understand the physical and emotional consequences of their action (the “Gillick Principle”), then parents do not have to be informed. The student can be asked if they would like to speak to someone else (i.e. not a teacher) who could be totally confidential.

Being "outed" through legal procedures
The possibility of being "outed" deters many people from taking to court people who have committed crimes which have a homophobic element. On October 7th 2004 provision of the Youth Justice and Criminal Evidence Act (1999) came into force. It is Section 46. It will not stop your name from being mentioned in court, but it can be used to stop your details being reported by the news media. ("No matter relating to the witness shall, during their lifetime, be included in any publication if it is likely to lead to them being identified as being a witness in the procedure"). It is stated that there are certain types of cases where this provision may be beneficial - they are: domestic violence; racially aggravated crimes; homophobic crimes. There is no time limit for making applications under section 46 in the Magistrates' Court, there is a 28 day limit in the Crown Court. The Charging Lawyer's role in making such an application is important.

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