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Sex discrimination and human rights: Sex Discrimination Act is not concerned with sexual orientation

This report relates to 1 case(s)

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    Secretary of State for Defence v MacDonald [2001] IRLR 431 CS (2 other reports)

    • Sexual orientation discrimination not sex discrimination

      Date:
      1 July 2001

      In Secretary of State for Defence v MacDonald (1 June 2001), the Inner House of the Court of Session rules that discrimination on grounds of sex does not include discrimination on the ground of sexual orientation, and that a male member of the RAF who was dismissed because he was homosexual was not discriminated against on grounds of sex.

    • EAT overruled

      Date:
      1 June 2001

      In Secretary of State for Defence v MacDonald the Court of Session has overruled the Employment Appeal Tribunal and held that discrimination on grounds of sexual orientation is not discrimination on grounds of sex within the meaning of the Sex Discrimination Act.

In Advocate General for Scotland v MacDonald [2001] IRLR 431, the Inner House, Court of Session holds that the Sex Discrimination Act 1975, and in particular s.1(1)(a), is concerned with gender, and not with sexual orientation, and s.3(1) of the Human Rights Act 1998 did not enable or oblige the Court to give the word "sex" in s.1(1)(a) any meaning other than gender. Their Lordships also hold, by a majority, that, in applying s.5(3) of the 1975 Act, the appropriate comparator of an ex-serviceman who had been forced to resign from the RAF because of his homosexuality, pursuant to the then policy of the Ministry of Defence, was a homosexual servicewoman. Since she too would have been required to leave the service, the ex-serviceman had not been treated less favourably than she would have been on the ground of his sex.