- (2007) Volume 4, Issue 3
Senior Lecturer and Research Fellow, School of Health and Applied Social Sciences, De Montfort
University, Leicester, UK
Received date: 15 January 2007 Accepted date: 15 May 2007
The early 21st century has seen a culture shift in the legislative landscape for lesbian, gay, bisexual and transgender (LGBT) people, giving them access to new rights and responsibilities: they have the right to have their relationships recognised in law by the Civil Partnership Act 2004; the promotion of homosexuality, by local authorities, is no longer illegal (Section 28 of the 1988 Local Government Act was repealed in 2003); and transgender people must be treated in their new sexby health and social care professionals (Gender Recognition Act 2004). Recently, new regulations (The Equality Act (Sexual Orientation) Regulations 2007) have been introduced which prohibit discrimination on the grounds of sexual orientation in the provision of goods and services, including health and social care. This article outlines these changes and provides an overview of the context in which they have arisen. Hitherto, heteronormative assumptions of welfare have shaped LGB people’s experiences of health and social care. Ideas about what constitutes a family have meant that same-sexcouples were not deemed to provide a suitable environment in which to bring up children: provisions in the 1990 Human Fertilisation and Embryology Act and guidance on placing children in foster placements were influenced by these assumptions. Notions about privacy, which framed many of the laws pertaining to sexual orientation, have meant that LGB people have been invisible users of health and social care. The article goes on to analyse research about user perspectives in health and social care, and then considers current developments, in the NHS and elsewhere, which aim to address the needs identified. In conclusion, the article considers the implications of these changes for conceptions of welfare and for the delivery of health and social care.
access to health and social care services, lesbian, gay, bisexual and transgender people, policy and legislation
The Equality Act, introduced in England, Scotland and Wales on 30 April 2007, makes it illegal for providers of goods, facilities and services, including health and social care, to discriminate on the grounds of sexual orientation. The statutory provision for making these regulations was included in Section 81 of the Equality Act 2006 (see Box1). Discrimination on the grounds of gender, race and disability has been prohibited since 1975, 1976 and 1995 respectively; last year, Part 2 of the Equality Act 2006 extended this protection to religion and belief. Illustrative examples of sexual orientation discrimination which the legislation aims to tackle include the denial of health care to lesbians and the refusal by a hotel to provide a double room to a gay male couple (Women and Equality Unit (WEU), 2006). This article first examines the context, that is to say the background, legislative transformations and the establishment of the Commission for Equality and Human Rights, in which the regulations were introduced. It argues that recent legislation marks a watershed in lesbian, gay and bisexual people’s access to services, and it considers the implications of these changes for health and social care professionals (see Box2). In conclusion, the article argues that publicly visible lesbian, gay and bisexual identities may have implications for the delivery of services and also for conceptions ofwelfare.
Until 1967, homosexuality was illegal in England and Wales (see Box3). The 1967 Sexual Offences Act decriminalised gay male activities in private for adults over the age of 21 years (Weeks, 1979). There were a number of limitations to decriminalisation: the Act excluded members of the armed forces and merchant navy. In addition, the age of consent for gay men was set at 21 years, in comparison to that of 16 years for heterosexual people. The legislation was thus said to confer ‘upon homosexuality a ‘‘less than’’ rather than ‘‘equal to’’ status so long as privacy ... [was] preserved’ (Evans, 1990, p.76). Moreover, the act maintained legal provisions that did not apply to heterosexuality on the grounds that homosexual behaviour in public might cause offence to others (Richardson, 1996). The meaning of privacy was tightly circumscribed: a hotel room was not private, nor was a house with a third person in it, if the bedroom door was not locked. Two decades later, privacy framed political discourses surrounding the introduction of Section 28 (see below) and the repeal of the age of consent (Johnson, 2002; Waites, 2003). The concept of privacy is an important one because sexual orientation has often been defined as something which is intimate, personal and private; by contrast, social policy is concerned with the provision of public welfare. In thisway, sexual orientation has been marginalised within social policy as an analytic category and, until now, has not been ‘considered as a real concern of welfare’ (Carabine, 1996, p.37 – emphasis in original) (see Box4). Recent research of local authority policy supports this suggestion: sexual orientation was overwhelmingly ranked the lowest of the sixequa lity strands (Fyfe et al, 2006). Most local authorities did not refer to sexual orientation in their strategies or key plans; in strategies where sexual orientation was included, councils did not monitor their effectiveness.
Legislation introduced two decades subsequently (Section 28 of the 1988 Local Government Act) made the promotion of homosexuality by local authorities illegal (see Box5). One writer described Section 28 as a ‘symbolic manifestation of the discrimination against lesbians and gay men’ (Rahman, 2004, p.151). According to Carabine and Munro (2004, p.316), ‘Section 28 created a climate of fear and stifled the development of lesbian and gay work in many local authorities’. Until 1988, a number of councils had provided welfare in the form of helplines and other initiatives, e.g. the London LGB centre in Cowcross Street, financially supported by the Greater London Council (GLC), was one of the largest in Europe. Section 28 put many of these services at risk (Evans, 1990; Carabine and Munro, 2004). Furthermore, because local authorities make grants to local voluntary sector organisations to deliver welfare, the reach of Section 28 extended beyond the work of local councils. For example, the funding body of the London-based Women’s Health organisation inserted a clause into the organisation’s contract that ‘prevented’ them from engaging in lesbian health promotion (James, 1992, p.45).
At the time of Section 28’s introduction, David Waddington, Home Office Minister, rejected appeals that discrimination on the grounds of sexual orientation should be prevented by law, stating that thiswas a ‘crankish notion’ (quoted in Evans, 1990. p.76). Such views were held across the political spectrum: many Labour politicians were also unaware of the discrimination experienced by LGB people (Carabine, 1995). By contrast, Anya Palmer (of Stonewall – the UK LGB lobbying organisation) concluded in her agenda setting for LGB rights campaigning that the UK had perhaps ‘the most oppressive legislation in Europe’ (Palmer, 1995, p.49). In comparison, other European countries introduced an equal age of consent much earlier than the UK: in 1976 in Denmark and in 1985 in Belgium. Homosexuality was decriminalised in Belgium in 1792 (Butt and Maclellan, 2007).
Other legislation curtailed LGBT people’s access to health and social care services. Section 23 of the 1990 Human Fertilisation and Embryology Act (HFEA) stated that:
a woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father), and of any other child who may be affected by the birth.
Lesbian and single heterosexual women found that they had limited access to fertility services through the NHS and some private clinics. Heteronormative assumptions about what constitutes a family have meant that lesbians and gay men were not deemed in government guidance to provide a ‘suitable environment for the care and nurture of a child’ (cited in Hicks, 2005, p.45): provisions in the HFEA 1990 Act and guidance on placing children in foster placements assumed that the ideal family was provided by a couple composed of a man and a woman. Heteronormativity constitutes heterosexuality as ideal and universal: heterosexuality can thus be said to have been institutionalised in our social institutions and social practices (Carabine, 2004).
This, then, was the legislative context at the turn of the 21st century. Concepts of privacy and heteronormativity, which underpinned the legislation, served to exclude LGB people from welfare. Moreover, social and political discourses assumed that LGB people did not experience discrimination. Because of this context, many LGB people have been reluctant to disclose their sexual orientation to professionals and are invisible users of health and social care services.
The early 21st century has seen a transformation in the legislative landscape in theUK(see Box6). Following a Stonewall-led campaign, initiated in the early 1990s to equalise the age of consent with heterosexual young people, the 2000 Sexual Offences Act lowered the age of consent for gay men to 16 years. In respect of the original legislation, the European Commission of Human Rights concluded that the UK was in violation of the European Convention on Human Rights (Waites, 2003). One of Stonewall’s first and longest campaigns was to lift the ban on LGB people serving in the armed forces. Following a 1999 judgement of the European Court of Human Rights in Lustig-Prean & Beckett v. UK, the court held that dismissal of a gay man on the grounds of his sexual orientation constituted discrimination and contravened Article 8 (respect for private life) of the European Convention on Human Rights (for the text of the judgements see www.stonewall.org.uk).
Further pressure for change has come from Europe (see Box7). Under Article 13 of the 1997 Treaty of Amsterdam, the European Council (EC) can take action to combat discrimination based on sexual orientation. In 2000 the EC issued an Employment Framework Directive (EC Council Directive 2000) that requires member states to introduce measures to combat discrimination in employment and training. This directive was the impetus for bringing sexual orientation within the scope of employment discrimination law through the 2003 Employment Equality (Sexual Orientation) Regulations.
Although there has never been a law that prevented LGB single people from adopting children, they were often considered a ‘last resort’ (Hicks, 2005, p.47). An amendment to the 2002 Adoption and Children Act, proposed by David Hinchliffe MP, allowed same-sex couples to apply to adopt jointly for the first time.
Section 122 of the 2003 Local Government Act (LGA) repealed the prohibition on the promotion of homosexuality contained within Section 28 of the 1988 LGA.
Section 146 of the 2003 Criminal Justice Act introduced an increase in sentences for aggravation relating to sexual orientation. This parallels similar (so-called) hate crime legislation for ‘race’ and disability; the latter was also introduced by Section 146 following the bombing of the Admiral Duncan pub in 1999, in which three people died and many more were seriously injured.
The 2004 Gender Recognition Act (GRA) makes clear that transgender people must be treated in their new sexfor all legal purposes including health and social care. The act allows new birth certificates for transgender people which recognise their new gender and the right to marry. The act imposes new responsibilities to maintain client confidentiality. Section 22 of the 2004 GRA makes it a crime for any individual who has obtained information, for example, in health and social care settings, ‘to divulge that a person has a gender recognition certificate or do anything that would make such a disclosure’ (Whittle, 2005, p.39).
The 2004 Civil Partnership Act enables same-sex couples to gain access to a number of legal rights. These include pension rights and recognition of next of kin for hospital visits. The 2004 Domestic Violence, Crime and Victims Act affords the same legal protection for victims of domestic violence to same-sex couples as that extended to heterosexual couples.
Taken together, these (and other) legislative changes have established the principle that in ‘a modern and diverse society, it is not acceptable for someone to be discriminated against because of their sexual orientation’ (Joint Committee on Human Rights, 2007, p.10). Sexual orientation has now joined other equality strands (e.g. ‘race’, gender and disability) as being a protected ground for different treatment. The changes are reflective of a social climate that is more accepting of LGB people, and it is, therefore, more likely that they will ‘come out’ to health and social care professionals.
The Equality Act 2006 will implement the most significant change in equality institutions in 25 years by establishing a single Commission for Equality and Human Rights (CEHR) in the autumn of 2007. The new Commission will replace the three existing equality institutions: the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission, and introduce three new equality strands: age, religion and belief, and sexual orientation. The stated vision for the single equality body is to promote a common culture of shared values that underpin citizenship and embed an ethos of human rights in workplaces, public services and communities in the UK. The Equalities Review is the transitional body for the CEHR.
The regulations establish a clear ‘benchmark for the sort of fair treatment that everyone should rightfully expect when accessing services in their everyday lives’ (WEU, 2006, p.8) and provide a ‘legal remedy for individuals discriminated against on the grounds of their sexual orientation’ (DCLG, 2007a, p.5). The regulations, which cover England, Scotland and Wales (see Box8), prohibit direct discrimination, indirect discrimination and victimisation on the grounds of a person’s sexual orientation. Harassment, that is, unwanted conduct which takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment, is also deemed to be discrimination, but has been excluded from the provisions. The government has deferred a decision upon this until the outcome of the Discrimination Law Review (www.womenandequalityunit.gov.uk).
There are similarities and differences in antidiscrimination legislation between the equality strands. Protection from discrimination in goods, facilities and services is afforded to gender, ‘race’, disability, religion and belief, and sexual orientation, but not age or transgender. Provisions will be inserted into the SexDis crimination Act in December 2007 to address discrimination on grounds of gender reassignment (Equalities Review, 2007). Protection from discrimination in employment and training is afforded on the grounds of gender, ‘race’, disability, religion and belief and sexual orientation. Protection was afforded to transgender (by The SexDiscriminati on (Gender Reassignment) Regulations 1999) and age (by The Employment Equality (Age) Regulations 2006).
Recent legislation has placed a statutory duty on public authorities to eliminate discrimination and promote equality in all aspects of services, and includes employees and service users. It marks a change in antidiscrimination legislation because it transfers responsibility from individuals complaining of unfair treatment and instead puts a positive duty on organisations to promote equality on the designated grounds. It is a proactive approach, supported by enforcement mechanisms such as race equality schemes, which measures outcomes. Positive duties have been introduced for ‘race’ (by the Race Relations Amendment Act 2000); disability (by the Disability Discrimination Act 2005); and gender (by Statutory Instrument 2006 No 2930), but not for age, religion and belief, sexual orientation or transgender. The proposed Single Equality Act is intended to streamline existing equality legislation.
In a speech marking LGBT history month (www. dh.gov.uk), Liam Donaldson, the ChiefMedical Officer, acknowledged the health inequalities experienced by LGBT communities, and cited UK health and social care needs assessments which reveal evidence of need (available from: www.dh.gov.uk/en/Policyandguidance/ Equalityandhumanrights/Sexualorientationandgender identity/index.htm; see, for example, Spectrum, 2003; Sanderson and Buckley, 2006; SexualityMatters, 2006). Recent research suggests that experiences of discrimination have a negative impact on the health of LGB people, in terms of lifestyles, mental health and other health risks. They are more likely to misuse substances, including cigarettes, alcohol and drugs, making them vulnerable to unhealthy lifestyles (Fish, 2006).
Gay men and lesbians report increased levels of psychological distress. Research for the mental health charity, Mind, has found that they are greater users of mental health services than heterosexual men and women (King et al, 2003). Despite this, lesbians, gay men and bisexual people report mixed experiences of services: up to 40% of lesbian women recounted negative or mixed reactions from mental health professionals.
Among young people, homophobic bullying is an increasing concern (Ellis and High, 2004). In primary and secondary school playgrounds, the epithet ‘gay’ is a frequent term of abuse (Plummer, 2001) which has come to mean anything rubbish or second rate. ChildLine (2006) estimates that 2725 young people access their services each year to talk about sexual orientation, homophobia and homophobic bullying; these issues appear to be of particular concern for boys. Experiences of homophobic bullying mean that young gay men are much more likely than other young people to attempt suicide. Young lesbians have an increased risk of self-harm (Bagley and D’Augelli, 2000). Despite anti-bullying strategies introduced by the Department for Education and Skills, e.g. Don’t Suffer in Silence (Department for Education and Skills, 2000), only 6% of schools have policies that specifically tackle homophobic bullying (Stonewall, 2006).
Recent studies have highlighted the needs of disabled LGB people (National Disability Authority, 2005; Abbott and Howarth, 2005). Findings suggest that health and social care services have made little effort to take account of their life experiences (Brothers, 2003). One study of people with learning disabilities found that, in most instances, they had known from an early age that they might be LGB but had waited until they found a member of staff that they felt safe being open with (Abbott and Howarth, 2005). In comparison to their heterosexual peers, learning-disabled LGB people encountered difficulties in meeting other LGB people; they faced a lack of validation for same-sexrelati onships and a lack of acknowledgement of LGB people. Moreover, there are few policies, so that social care staff do not feel supported to do proactive work (Abbott and Howarth, 2005).
These studies suggest that health and social care services do not always take account of LGB people’s self-esteem and other needs. The new regulations may contribute towards improving LGB people’s experiences of health and social care services.
The Department of Health is currently working on a strategy to eliminate discrimination for LGBT people as both service users and employees in health and social care. A Sexual Orientation and Gender Identity Advisory Group (SOGIAG) was established in 2005 to deliver a programme of activities through four workstreams: better employment, inclusive services, transgender and reducing health inequalities. SOGIAG has commissioned a range of work including a DVD resource to support health professionals: Real Stories, Real Lives, LGBTpeop le and the NHS (available, free of charge, as a download from: www.dh.gov.uk/en/Policy andguidance/Equalityandhumanrights). In addition there are briefing papers to support health and social care professionals in working with LGBT people, core training standards for health employees on sexual orientation, and evidence about reducing health inequalities for LGBpeople (www.dh.gov.uk). In Scotland, the NHS Inclusion Project (2006) has produced guidelines to develop knowledge, awareness and attitudes of LGB issues and address the barriers that LGB people face in their access to health services.
In the voluntary sector, social care organisations have been innovative in making social care more accessible and sensitive to the needs of older LGB people. Age Concern launched its Opening Doors strategy in 2001, providing resources and good practice guidance for home care providers and commissioners of services to help them to respond to the needs of older LGB people (Age Concern, 2001; Knocker, 2006). In many ways, older LGB people share similar concerns to those of older heterosexual people. But there are also a number of differences: research suggests that they may be more likely to live alone, are less likely to have children to call on, and there is little specialised provision – in the form of housing, residential care and social groups – to meet their needs (Heaphy et al, 2003).
Other examples of innovative practice include the Lesbian and Gay Alzheimer’s Society Carer’s Network which provides support for lesbian and gay carers. Its website gives advice on choosing residential accommodation and examples of good practice in social care (www.alzheimers.org.uk/Gay_Carers/residentialcare. htm).
The Department for Communities and Local Government (DCLG), which is the government department with responsibility for introducing the regulations, suggests that LGB people are ‘more likely than heterosexual people to experience sexual orientation discrimination in the provision of goods, facilities and services’ (DCLG, 2007a, p.7). Discrimination may occur when LGB professionals suffer abuse from employers, colleagues, clients or patients: one report found that more than two-thirds of LGB health professionals had experienced problems at work relating to their sexual orientation (British Medical Association, 2005). In addition, discrimination may also occur when LGB patients or service users suffer in the provision of health and social services. The DCLG expects that the introduction of the regulations will give LGB people increased confidence in accessing mainstream services, have a positive impact on health, and result in ‘an improvement in the level of healthcare’ (DCLG, 2007b, p.9). In order to claim these rights to equal treatment, Richardson (2000, p.120) argues that LGBT people will, of necessity, be ‘out’. Over the past three decades, LGBT politics has been concerned about claims for the right not to have to be private. Publicly visible LGBT identities may have implications not only for the delivery of services, but also for conceptions of welfare. The regulations may begin to pave the way towards the benefits of full and equal citizenship for LGB people.
