Homosexuality, religion and the contested legal framework governing sex education in England

Abstract

This article examines how religion has influenced, and continues to influence, the legal framework that regulates the circulation of knowledge about homosexuality and same-sex relationships within state-funded schools in England. This legal framework has become the subject of considerable recent public and legislative contestation. We argue that religious considerations and interests have contributed to the production and maintenance of an uneven educational landscape in which young people face disparities in their access to instruction regarding issues related to homosexuality and same-sex relationships. Key themes explored in the article include the exclusion of discussion of homosexuality from the requirements of the National Curriculum; the right of parents to withdraw children from sex education; attempts to make some discussion of same-sex relationships a statutory requirement for all state-funded schools, including faith schools; and the uncertain implications of the Marriage (Same Sex Couples) Act 2013 for the teaching of sex education.

Keywords::

• sex education
• faith schools
• homosexuality
• National Curriculum
• academies
• Marriage (Same Sex Couples) Act 2013

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

^1. We limit our discussion to England due to important differences in the school systems in Scotland, Wales and Northern Ireland.

^2. S.122 Local Government Act 2003 repealed S.2A Local Government Act 1986 in England and Wales. In Scotland repeal was achieved by S.34 Ethical Standards in Public Life etc. (Scotland) Act 2000.

^3. Most faith schools are associated with either the Church of England (which dominates at primary level) or the Roman Catholic Church (which dominates at secondary level). A small percentage have designations as Hindu, Jewish, Muslim, Sikh, or of other Christian traditions.

^4. This process is governed by the Religious Character of Schools (Designation Procedure) Regulations 1998.

^5. The main categories of maintained schools are community, foundation and voluntary schools (S.20(1) School Standards and Framework Act 1998). There are also two categories of school for pupils with special educational needs: community special and foundation special schools. Voluntary and foundation schools (but not community schools) can be designated as having a specific religious character (S.69(3)–(5) School Standards and Framework Act 1998). Virtually all voluntary schools have such a designation.

^6. Direct reference to ‘sexual health’, however, which formerly featured in the Key Stage 3 program of study, has been omitted from the new Key Stage 3 science curriculum (Department for Education, 2013f) announced in 2013. Teaching about sexual health at Key Stage 3 was previously noted in Qualifications and Curriculum Authority (2007b, pp. 211 and 213). The new Key Stage 4 program of study indicates that students should be taught about ‘communicable diseases including sexually transmitted infections in humans (including HIV/AIDs)’ (Department for Education, 2013f).

^7. The number of parents who exercise this right, according to one estimate, is circa 0.04% (Ofsted, 2002).

^8. The language of academy funding agreements contains some ambiguity. The agreements specify that academies must ‘have regard to any guidance issued by the Secretary of State on [SRE] to ensure that children at [the] Academy are protected from inappropriate teaching materials and they learn the nature of marriage and its importance for family life and for bringing up children’ (Long, 2011, p. 6). This arguably leaves room for interpretation about whether academies must have regard for all aspects of the guidance (which covers many issues), or whether they must have regard to it only to the extent that children are appropriately protected and learn about marriage.

^9. In 2014, ‘supplementary’ guidance was published by the PSHE Association, Sex Education Forum, and the charity Brook to be ‘read alongside’ statutory guidance (Sex and Relationships Education (SRE) for the 21^stCentury, 2014). This guidance advocating an ‘inclusive’ approach has been ‘welcomed’ by Schools Minister Lord Nash and the Deputy Prime Minister, Nick Clegg (Brook, 2014), but has no legal standing.

^10. Guasp (2012) suggests that non-heterosexual pupils report that faith schools are less likely to make clear statements about the unacceptability of homophobic bullying, and that staff are less likely to intervene in incidents.

^11. EIAs are prepared to provide evidence that official bodies are fulfilling their duties under the Equality Act 2010.

^12. The explanatory notes of the previous program of study for Citizenship (Qualifications and Curriculum Authority, 2007a) included mention of ‘sexual orientation’ as a dimension of diversity.

^13. ‘Fraser guidelines’ refer to those set out in Gillick v West Norfolk & Wisbech Area Health Authority [1985] UKHL 7.

^14. It has been claimed that Article 2 of Protocol No.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) guarantees the right of parents to withdraw their children from mandatory sex education classes in schools on the grounds that such classes restrict the right of parents to educate their children in conformity with their religious convictions. Such claims have been unsuccessful in the European Court of Human Rights (see, for example: Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, Series A no. 23; Dojan and Others v. Germany (dec), no. 319/08 et al., 13 September 2011). See also Furniss and Blair (1997).

^15. Derived from Department for Education (2011) and Department for Education (2014).

^16. This contrasts with the response of Welsh Education Minister Leighton Andrews, who wrote to all Catholic schools reminding them of their obligations under the Education Act 1996 (Teahan, 2012).

^17. This seemingly alludes to S.85(2)(a) Equality Act 2010, specifying that a school must not discriminate against a pupil ‘in the way it provides education for the pupil’.

^18. Provisions on harassment in schools in fact exclude sexual orientation from protection (Wintemute, 2012 provides a discussion).

^19. A requirement for schools to promote SMSC first appeared in the Education Reform Act 1988, with a duty placed on the Chief Inspector to report on SMSC first appearing in the Education (Schools) Act 1992.

^20. We base this claim in part on a review of all secondary school inspection reports published for Birmingham schools from July 2013 – August 2014.

^21. We would stress that we do not offer any direct opinion on the events of the ‘Trojan Horse’ affair, given ongoing uncertainties about the facts of the situation and the nature of the official response.