Profile: Angela Mason
Stonewall has been campaigning for gay and lesbian rights for over a decade. By the end of 2003, gays, lesbians and bisexuals will at last have protection from discrimination in the workplace. Sarah Podro spoke to Angela Mason, Stonewall's director and a recently appointed Commissioner for the Equal Opportunities Commission, about its achievements and the challenges ahead.
Set up in 1989, Stonewall has become a hugely influential body in the campaign for gay, lesbian and bisexual rights. "We have been successful at pushing gay and lesbian rights up the political agenda," says Angela Mason, the organisation's director. "We have an extensive list of supporters in the House of Commons and indeed the House of Lords, and strong relations with the trade unions and more and more employers." After 13 years of lobbying Conservative and Labour governments, gay men and women are no longer banned from serving in the armed forces, and there is equal age of consent.
But equally there have been setbacks. In the much-publicised case of Grant v South West Trains , the European Court of Justice ruled that discrimination on the grounds of sexual orientation did not contravene European Community law. In Secretary of State for Defence v MacDonald (EOR 98), the Court of Session ruled that discrimination on the grounds of sex under the Sex Discrimination Act 1975 (SDA) did not include discrimination on the grounds of sexual orientation. Attempts to use the Human Rights Act 1998 in conjunction with the SDA have also been unsuccessful to date (see Pearce v Governing Body of Mayfield School) (EOR 99).
But all this is set to change with the introduction of UK legislation next year outlawing sexual orientation discrimination in the workplace (see below).
Mason has been at the forefront of the struggle against gay and lesbian discrimination for the past 30 years. Always open about her sexuality, she was part of the Gay Liberation Front at the end of the 1960s and beginning of the 1970s, which in many ways heralded the start of the modern gay movement. Before taking up her current post, she worked as a solicitor in local government and the newly established law centres, including Camden, one of the first to be set up. An active trade unionist, she was involved in forming the first lesbian and gay group in the local government union NALGO (now part of Unison).
Mason joined Stonewall in 1992. The organisation now has 10 full-time staff (five men and five women), and last year answered almost 30,000 requests for information from lesbians, gay men, bisexuals and the press etc. It has an annual turnover of just over £1 million, primarily from supporters and big fundraising events. Two of the bigger projects, "Citizenship 21"- building bridges between different minority groups - and "Beyond barriers"- developing resources for bisexuals, lesbians and gay men - have funding from English and Scottish Community Funds.
Private sector progress
There has been a major sea change in attitudes to gays and lesbians in the workplace over the past decade, says Mason. "The private sector, in particular, has become much more progressive and forward thinking compared to the public sector as a whole. In the global companies it is more and more difficult to avoid dealing with issues of sexual orientation and discrimination. I think one of the factors governing these changes is that the gay community have become signifiers of change and modernity. It is a quite direct way of companies giving a message about their reputation and concerns. It is essentially customer-driven. There is a gay market, and especially amongst young people it is a market that responds much better to inclusive messages."
The public sector, in the meantime, is lagging behind, despite being the place where action to protect lesbians and gay men began. "In organisations like the NHS we have observed little progress because they are driven by government-set targets, of which equality is not one. Education has also been a very difficult area and section 28 has had an enormous impact on gay and lesbian teachers."
Discrimination persists
Attitudes may be changing but, for many, discrimination persists. Same-sex partners of gay and lesbian employees do not have a legal right to pensions or other benefits afforded to spouses or partners of the opposite sex (see, for example, the Grant case). Gay and lesbian employees are often excluded from leave arrangements - meaning, for example, that when a partner dies, they are unable to take bereavement leave (see Equality for lesbians and gay men in the workplace). Nor do the Parental Leave Regulations (see The Maternity and Parental Leave Regulations 1999: An EOR guide ) recognise same-sex partners.
A recent survey by the lecturers' union, the AUT, found evidence of "a glass ceiling operating against gay men in academic posts, and found that gay men do not hold the ranks of principal lecturer, reader and professor in the numbers that would be expected on the basis of their age and other characteristics."1
Homophobic harassment and bullying in the workplace continues. Gay, lesbian and bisexual employees, unlike groups such as women and ethnic minorities, can choose to hide their sexuality to avoid this type of discrimination. But this results in yet another form of disadvantage. The AUT survey found that only 20% of gay men and 13% of lesbians felt comfortable enough in their work environment to be "out" at work. However, according to the survey, over time, hiding one's sexuality becomes increasingly difficult. "As individuals become older and others know them better, lack of marriage, for example, may be taken as a signal of lesbian, gay or bisexual orientation," and the report suggests that this may be one explanation for the persistent gap in senior posts between gay and heterosexual men.
Working with employers
Last year Stonewall launched Diversity Champions, an initiative for employers who wish to work with the organisation to challenge sexual orientation discrimination. "It's really taken off," says Mason. "We have around 30 members, including JP Morgan, IBM, Barclays, BT, the Home Office, Cabinet Office and Customs and Excise." A series of seminars have brought members together to look at in-service training, monitoring, performance output, recruitment and employee networks. And members have access to a body of work, including expert advice on independent initiatives and problem-solving, and a monthly email bulletin with news and information, keeping recipients up to date with best practice guidelines and initiatives.
"Employee networks have been a very successful area," says Mason. "More advanced networks, such as exist at BT, Barclays, and JP Morgan, have a place within the structure of the company and so have a role to advise and develop policy. We are currently working with the Home Office to explore the possibility of setting up a more advanced network there."
UK provisions under the European Framework Directive (see EU Employment Framework Directive: An EOR Guide), which must be in force by 2 December 2003, will place an obligation on all employers to avoid discrimination on the grounds of sexual orientation and religion. The government has issued a draft consultation document (see Implementing the Employment and Race Directives ) which Stonewall has responded to.
Occupational pensions
Mason welcomes the introduction of legislation as a first step, but is critical of its limited scope and the failure to cover discrimination in all areas of public life, including access to goods, facilities and services. She also identifies weaknesses in specific elements of the draft document. In particular, Mason points to the proposed exclusion from coverage of occupational pension schemes providing benefits to a partner on the death of the pension-holder only where they are married. "These type of schemes predominate in the public sector, including teaching and health," says Mason, "although the civil service is currently making changes to its pension schemes to make them more equitable."
Harassment
Another area of contention is the test for harassment, which has a more stringent definition in both the Race and Employment Framework Directives than within UK case law on race and sex. The Directives add an offensive environment test to tests of unwanted conduct and violation of dignity. The government has presented two options in its consultation paper to deal with this inconsistency.
The first option would be to introduce the stricter definition in respect of the new jurisdictions of religion, age and sexual orientation but to leave in place the current definition as derived from case law in respect of race.
The second option, which appears more likely to be adopted, is to enshrine the existing case law definition in all jurisdictions, but to omit the offensive environment test. Mason argues that this should remain, but as an alternative basis of complaint. "Sometimes employees don't come out because there is a hostile environment, although no one is abusive to them personally. Whilst they are working in this environment, they are placed in a less favourable position. That is a point of policy which we think will focus employers' minds on workplace culture."
Definition
Mason also envisages differences over definition. "The government wants to outlaw discrimination 'on the grounds of bisexual, homosexual and heterosexual orientations'. None of the gay groups like the word homosexual because it is an old, rather medicalised term which has a lot of negative baggage around it. We think that the definition 'on the grounds of sexual orientation' should be used." And Mason brushes aside any suggestion that this would lay the new right open to abuse by paedophiles. "Article 2(5) clearly means that conduct which is criminal, or for the protection of the freedom and rights of others, is not covered by the Directive."
Clash of rights
New rights for religious groups may also present potential discrimination against lesbians and gay men, says Mason. "Article 4(2) of the Directive allows faith groups to discriminate on religious criteria, and it certainly preserves section 60 of the School Standards and Framework Act 1998, which allows religious voluntary aided schools to discriminate in the hiring and firing of teachers. We would like to see the government introduce quite strict codes of guidance so that if religious institutions do discriminate against a person just because they are gay there should be quite heavy requirements of justification. I believe there will be test cases because this part of the Directive is clearly a compromise."
Enforcement
Although the government now appears to be committed to a single equality commission to enforce the new body of rights, this is unlikely to happen before 2006. In the interim, the consultation paper refers to "transitional arrangements that will enable us to move towards a single commission in the longer term".
The logical transitional arrangement would be for the Equal Opportunities Commission (EOC) to take responsibility for sexual orientation discrimination. And Mason has recently been appointed an EOC Commissioner. She welcomes the opportunity to experience first-hand how a statutory body working in a similar area conducts itself. But she also stresses the importance of input from NGOs such as Stonewall in the delivery of future rights.
Mason sets out what she sees as the two main options for interim enforcement. "You have to think about it in terms of functions and functionality and what would be required," says Mason. "These would be advice, support and representation, and a legal strategy. Some of this will be quite controversial, and there will be important test cases. Substantial levels of funding will be needed if there is to be effective enforcement.
"The government could ask the Equal Opportunities Commission to hold monies and set up an equality and diversity task force for sexual orientation. This body would either be directly responsible for enforcing the new provisions, or it could ask groups to bid for specific areas of work. The EOC doesn't think it has the power to do that and believes it might need primary legislation to make the changes. One alternative would be for the DTI to take on the role and certify groups like us to do the work."
Mason favours the first option because it would give a body with experience of overseeing the development of case law and legal strategy the power to oversee the development of case law in what will be a brand new area. She also argues that s.2 of the European Communities Act and article 8 of the Directive, taken together, could provide sufficient powers to enable the EOC to undertake such additional functions.
"Another measure which we believe essential is the setting up of an equality and diversity forum which includes all the discrimination strands, including representation from existing commissions, together with employers and trade unions. There has been little contact between different groups and it would allow us all to get to know each other, to share information and extend and develop good practice."
If Stonewall does become a major player in enforcing the new provisions, it will mean a significant expansion for the organisation in terms of staffing and funding.
Single equality commission
In the long term, Stonewall wishes to see a single commission dealing with all aspects of diversity and equality.
"There is an excitement about the support from government for a generic equality commission," she says. "It is part of quite a strong push that is going on towards more generic diversity policies. It seems to be what employers want and we are keen on the concept and think it is valuable and useful when dealing with issues of sexual orientation and discrimination.
"In many people's minds, sexual orientation and discrimination is a difficult and controversial issue. A single commission, and ultimately a single equality Act, would set the issues within a wider context and make them more accessible and easier to understand. It gets away from the idea of special protection for gays and political correctness. It is a vehicle for bringing together the business case and the case for social justice. Diversity as opposed to equality of opportunity."
1 Lesbian, gay and bisexual participation in UK universities. Results from a pilot study, November 2001, is available from the AUT website: www.aut.org.uk/index.cfm?articleid=160.
