I thank the Minister of State for being here. In late December I received an email from a person called Jennifer Hoey who offered a good observation she made in the course of her own studies, to the effect that in the Equal Status Act 2000, "'sexual orientation' means heterosexual, homosexual or bisexual orientation". In her submission she asks whether it would not be more inclusive to use the terminology "heterosexual and LGBTQ+". That would be more inclusive and in keeping with current thinking and the way matters have evolved since the Act of 2000.
This set me about a bit of research. We updated the Act in 2012 and looked at and included gender and variances of gender so there would not be discrimination on grounds of gender when it came to insurance. Thus, a very discrete provision in the law was introduced by the 2012 Act. That was too narrow to be deemed inclusive. We have the Gender Recognition Act 2015 which, to be fair, will cover an individual who perhaps started work or accessed a service and once they have a gender recognition certificate they are entitled to access all services and have their gender recognised. However, it is similarly specific in its provision. While it is very excellent and a great way of moving forward, it is so specific and so narrow it does not necessarily include other genders and how people identify themselves and self-reference themselves.
I am a practitioner in employment law, so this led me to look at employment equality. The definitions in the Equal Status Act are mirrored in the Employment Equality Act. We have an extra one in the Equal Status Act that has to do with housing. From an employment equality perspective, and having been a practitioner on both sides, that is, with an individual on one side of the table and with an employer on the other side of the table, I know the loopholes and how the arguments have been made. Indeed, I could possibly shamefully say I have exploited them in my career as a barrister.
However, the argument made by Jennifer is very important in that she is pointing at our language evolving and our having a mechanism for language to evolve. We cannot immediately jump, and legislation cannot immediately jump, to respond to something that may evolve again in two years’ time. We cannot be that responsive in our legislation but when we are in here arguing legislation and amendments with Ministers, or in the committees doing pre-legislative scrutiny, when somebody wants something I will sometimes say it is too prescriptive and the law cannot be that prescriptive because it must be anticipating a wider situation.
When the Equal Status Act was written, it anticipated a wider situation but that situation has now evolved again. If we take Jennifer’s suggestion that instead of being prescriptive around the definition of sexual orientation we should include the phrase "heterosexual and LGBTQ+", then we have a context, but one that is also very inclusive. It is a good suggestion and my raising the matter is to ask that we start thinking about this. I have no doubt we already have but it is something we need to think about.
