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Direct Discrimination

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Is it unlawful direct sexual orientation discrimination to require that people who want join a foster agency as carers refrain from "homosexual behaviour"?

Yes, held the Court of Appeal in R (Cornerstone Fostering) v Ofsted.

Cornerstone is an independent fostering agency that works with local authorities to place children in need with foster carers. 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".

Ofsted, who regulate fostering associations decided that this was direct discrimination. 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.

Rejecting that argument and holding the rules were directly discriminatory, Peter Jackson LJ 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.

Thanks to Matthew Jackson of Albion Chambers for preparing this case summary.