5. Balancing of competing rights
47. Some recent statutory equality provisions are reported to lead to a clash of religious convictions with other strands, for example sexual orientation. On the one hand, some Christian interlocutors raised their concerns that religion would have to conform to a non-religious world view; while not being opposed to antidiscrimination legislation as such, they felt discriminated by sexual orientation regulations and indicated that many Christian adoption agencies would close if not given an opt-out from having to place children with homosexual couples. On the other hand, members of the lesbian, gay, bisexual and transgender community argued that the existing statutory exemptions already favour religion and they stressed that nondiscriminatory delivery of goods and services is crucial especially when public services are contracted out to faith-based organizations.
48. The Special Rapporteur was informed about the differences of the pertinent regulations in Northern Ireland and in Great Britain. The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, which make it unlawful to discriminate or subject another person to harassment on the grounds of sexual orientation, provide for an exception to organizations relating to religion and belief. Thus it is not unlawful for such an organization to restrict membership, participation in activities, the provision of goods, services or activities, or the use or disposal of premises on the ground of sexual orientation if this is necessary to comply with the doctrine of the organization or in order to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers. The regulations for Northern Ireland, which came into force on 1 January 2007, however, do not extend the exception to organizations whose sole or main purpose is commercial or to those who act under a contract with and on behalf of a public authority. Similar regulations for the rest of the United Kingdom are in force since 30 April 2007, but the Equality Act (Sexual Orientation) Regulations 2007 in Great Britain do not contain harassment clauses as the corresponding regulations for Northern Ireland. These harassment provisions have been subject to judicial review and the High Court of Justice in Northern Ireland decided on 11 September 2007 to quash them, inter alia, because the width and vagueness of the definition of harassment gave rise to a risk of incompatibility with both freedom of speech and freedom of thought, conscience and religion.7
7 High Court of Justice in Northern Ireland, Queen’s Bench Division, (2007) NIQB 66, paras. 40-43.