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Judicial review asserts that fostering agency’s rules against “homosexual behaviour” is direct discrimination

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of R (Cornerstone Fostering) v Ofsted, an independent Evangelical Christian fostering agency which places children in need with foster carers, has been found to have breached unlawful direct sexual orientation discrimination legislation to require that people who want join a foster agency as carers refrain from “homosexual behaviour”.

Cornerstone’s rules required any carers registering with them to be Evangelical Christians and “Set a high standard in personal morality which recognises that God’s gift of sexual intercourse is to be enjoyed exclusively within Christian marriage.”  The same rules prohibited “homosexual behaviour”.

However, Ofsted’s findings were that its carer recruitment policy involved unlawful discrimination because of sexual orientation under the Equality Act and the Human Rights Act, and unlawful discrimination. on grounds of religion or belief.

Cornerstone succeeded in a judicial review that they were allowed (under the Equality Act 2010) to restrict membership to Evangelical Christians and said that meant their rules against “homosexual behaviour” were also allowed. Nevertheless, Lord Justice Peter Jackson rejected that argument and held that the rules were directly discriminatory. He said:

“The argument has a certain logic: “We are entitled to discriminate against persons who are not evangelical Christians” therefore “Because homosexuality is unacceptable evangelical Christianity we are entitled to discriminate against homosexuals”. The difficulty with this logic is that it equates religious discrimination with sexual orientation discrimination in all circumstances when that is something that Parliament has not done.”

The Court of Appeal also decided that under the Equality Act 2010, on the evidence, Cornerstone’s actions were not a proportionate means of achieving a legitimate aim. Claims under the Human Rights Act 1998 were also rejected.

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