---

Equality Bill

My Lords, the purpose of Amendments 18 and 19 is to outlaw harassment in schools on the basis of what the Bill calls "gender reassignment" and harassment in schools as well as in services and public functions on the basis of sexual orientation. In a similar vein, Amendments 35 and 36 are designed to make it illegal for the responsible bodies of schools to harass students on the basis of sexual orientation or gender reassignment. One can readily understand that harassment of young, gay students in schools can be disturbing and alarming for them. I raised this issue at Second Reading and shortly thereafter received an e-mail from someone in Northern Ireland underlining the concerns about harassment of gay pupils. Likewise, we would all abhor the harassment of those going through the transgender process. These amendments primarily establish in law a protection against harassment and also challenge the Government, who resisted these amendments when they were raised by my noble friend Lord Lester in Committee on the basis that they do not believe there is a gap in the protection. The amendments provide the Government with an opportunity to explain why they think that gap has been plugged. On Amendments 36 and 37, Clause 85(3) states: ""The responsible body of such a school must not harass … a pupil [or] a person who has applied for admission as a pupil"." Subsection (10) then says that in the application of Section 26, dealing with harassment, ""for the purposes of subsection (3), none of the following is a relevant protected characteristic"." It then includes gender reassignment and sexual orientation—the two paragraphs we are trying to delete. It almost seems as if the green light is being given to school bodies to go ahead with harassment, although I know that that is not the Government’s intention. When you see exemptions set out so starkly, some explanation is required. I understand that the argument that the Government have rehearsed in the past is that the application of what is now Clause 210(5) indicates that where there has been an exemption in respect of harassment in particular circumstances, it will still be possible for a person to bring a discrimination claim on the ground that they have been subjected to a detriment. We seek some reassurances about that because there are differences. When there is a question of a detriment it is necessary to provide a comparator, whereas our amendments relating to harassment import the reasonability test. My noble friend Lord Lester of Herne Hill took part in debates during the passage of the Equality Act 2006 about the third exemption in Clause 85(10), relating to religion or belief. He argued strongly for that exemption on the grounds that there are distinctions. I am sure that we will return to this later in the debate this evening when we come to the clauses dealing with public sector duty. There are distinctions with regard to religion and belief because, as my noble friend has said on more than one occasion, one person's religion is another person's blasphemy. Whole issues of freedom of speech and expression arise and he certainly believed that the exemption was necessary to avoid legal uncertainty or misconceived or divisive claims. If the Government’s argument with regard to gender reassignment or sexual orientation is that discrimination claims can be made by virtue of Clause 210(5), does that in any way open the door for any of the legal uncertainties that my noble friend raised in the past in relation to religion? Finally, it is my understanding that nothing in the Bill would protect a pupil being bullied by another pupil because of any protected characteristic. However, a school’s failure to deal with homophobic bullying against a pupil when it deals with other types of bullying could amount to direct sexual orientation discrimination. That being the case, it would be helpful if in replying the Minister could indicate what steps are being taken, over and above the steps that we have already heard about in recent months, to ensure that schools take a proactive approach to matters such as tackling homophobic bullying, which puts pupils who are lesbian, gay, bisexual or transgender at a disadvantage compared with straight pupils. I beg to move.