Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School: Sexual orientation discrimination distinguished from sexual discrimination

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Summarised by James Li (Associate)

Background
 
This decision covers two appeals arising from different facts because similar arguments were made on appeal, and are dealt with by the English House of Lords in the same judgment.  
 
The claimant of the first appeal was a male homosexual officer in the Royal Air Force. He was dismissed because the regulations provided that individuals who admitted to being homosexual while serving would be required to leave the team. He argued that he was discriminated against on grounds of sex because a woman who was sexually attracted to men would not be dismissed. 
 
The claimant of the second appeal was a female homosexual teacher who contended that she suffered verbal abuse from pupils of the school due to her homosexuality. She ultimately retired due to ill health. She argued that she was discriminated on grounds of sex because a man who was sexually attracted to women would not have faced the same abuse. 
 
Both claimants applied for compensation from their employers on the ground that they had suffered an act of unlawful discrimination on grounds of sex within Section 1(1)(a) of the 1975 Human Rights Act. 
 
Issues before the House of Lords 

1. Whether the claimants have suffered direct discrimination within Section 1(1)(a) of the 1975 Human Rights Act. 

1. What are the correct comparators for the purpose of assessing whether there is direction discrimination in this case. 

 
Decision and Reasoning

1. The claimants did not suffer discrimination within the section. Section 1(1)(a) provides that a person discriminates against a woman if 'on the ground of her sex he treats her less favourably than he treats or would treat a man'. This definition applies correspondingly to men. The policies concerned in the cases are gender-neutral, so they do not discriminate between people on the ground of sex.  

1. The correct comparators in this case are a homosexual woman and a homosexual man respectively for the two claimants on appeal. If they were to succeed in proving sexual discrimination within the meaning of Section 1(1)(a), the claimants are required to establish that they are treated differently from a person of the opposite sex, sharing the same characteristics (i.e. homosexuality). The claimants failed to establish this. 

 
Comments 
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Different from the approach in Hong Kong, the approach to human rights protection is largely statute-based in the United Kingdom. This decision shows the rigidity of a statute-based approach. On a positive note, laws such as the Employment Equality (Sexual Orientation) Regulations 2003 and Equality Act 2010 have since been passed to accord the LGBTQ community with more legal protection of their rights. ​