Requiring Foster Carers To Refrain From Homosexual Behaviour Is Sexual Orientation Discrimination

Requiring that people who want to join foster agencies as carers refrain from homosexual behaviour has been confirmed to be unlawful direct sexual orientation discrimination, as established in the recent Court of Appeal case of R (Cornerstone Fostering) v Ofsted.

Cornerstone Fostering was an independent fostering agency that places children in need with foster carers, with the assistance of local authorities. One of the requirements that Cornerstone state in their rules is that any carers who register with them need 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.” This same rule also states that there needs to be an abstinence from “homosexual behaviour”.

Ofsted, who are the regulator for fostering associations, decided that this amounted to direct discrimination. Cornerstone succeeded in a judicial review against this, and it was confirmed that they were allowed, under the Equality Act 2010 (EqA 2010), to restrict membership of their agency to Evangelical Christians and therefore said that this meant their rules against “homosexual behaviour” were also allowed.

Peter Jackson LJ rejected this argument and held that the rules were directly discriminatory against gay men and lesbians:

“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.”

It was also confirmed by the Court of Appeal that, under the EqA 2010, and 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.

Our Employment team says:

“While it may seem obvious on the facts that a fostering agency which had a blanket ban on recruiting non-heterosexual carers was acting in a discriminatory manner, from a legal stand point it is a little bit more complex. This case ultimately involves the clash of rights between two protected characteristics; belief and sexual orientation.

“It acts as an extremely important reminder that the requirements of one protected characteristic will very rarely, if ever, justify directly discriminating against another.”

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