Activity 4: Defining sexual orientation
This activity relates to the entry ‘2003 (Legal) Employment rights’ that appears in the timeline in Section 2.1.
How would you define ‘sexual orientation’? Put yourself in the position of a legislator seeking to protect individuals against discrimination on grounds of sexual orientation in the workplace. Write your own definition of ‘sexual orientation’.
Did you define ‘sexual orientation’ in terms of physical acts, or in terms of sexual attraction to a particular sex? Does your definition cover:
- both homosexuals and heterosexuals?
- those who are not sexually attracted to anyone?
Having considered your definition, would you like to rewrite your definition. If so, please do so.
The statutory definition of sexual orientation
Regulation 2 EE(SO)R 2003 defined sexual orientation as:
(1) In these Regulations, ‘sexual orientation’ means a sexual orientation towards:
- a.persons of the same sex;
- b.persons of the opposite sex; or
- c.persons of the same sex and of the opposite sex
It is interesting to note that the definition adopted focuses on feelings, rather than acts. It covers homosexuals, heterosexuals and bisexuals. It does not cover others. For example, the regulation affords no protection to those who are asexual (i.e. not sexually attracted to anyone). On a literal reading of the regulations, such individuals could still be lawfully discriminated against, as could those sexually attracted to children. Guidance produced supplementary to the regulations explained that those sexually attracted to children were not protected by the regulations. Politically, it is easy to see why this approach was adopted. Public revulsion against adults who engage in sexual activity with children is almost universal. Legislation which sought to protect such individuals would be bound to be attacked in the media and by political opponents.
Note that the legislation is about sexual orientation; it is not about sexual activity. Sexual activity with a child under the age of 16 is against the law. Society may wish to condemn those who act in criminal and socially unacceptable ways. Employers may not wish to employ such individuals. However, here the protection either being offered or not offered relates to sexual orientation, not sexual activity. An individual may be sexually attracted to children, but may always resist such urges. The employment may not involve working with children or ever coming into contact with children. Should such an employee be offered protection? Earlier, the timeline looked at the Wolfenden report (1957) which set out the idea that there should be areas which are not the law’s business. Are thoughts which do not lead to actions such an area?