Introduction

CoSO has been established as a forum to represent the interests of LGBT people in Northern Ireland. We look forward to developing an inclusive, wide-ranging dialogue with your authority so that issues of sexual orientation will be mainstreamed into every aspect of your policy-making.

Although you will have considered questions of inequality on grounds of religious belief and political opinion, sex and marital status, race and ethnic origin and disability under existing equality legislation, issues of sexual orientation will involve a new area of inequality which has to date been ignored. Performance of the statutory duty will present your authority with new and unfamiliar issues which have to be addressed in your final Equality Scheme. Therefore we consider it to be particularly important you enter into dialogue with us on the promotion of equality of opportunity between persons of different sexual orientation.

There are two broad areas in which our constituency may differ from others governed by the statutory duty. First, members of the LGBT Community have been largely invisible in our society due to prejudice, ignorance and misinformation. These attitudes create marginalisation and social exclusion in our daily lives. They raise issues such as the combating of prejudice but also issues of monitoring in a context of confidentiality. Secondly, because our society is based on a presumption that everyone is heterosexual, your organisation will probably not have taken into account sexual diversity in society, which may, for example, take the form of same-sex partnerships. That diversity is also reflected in the lives of transgendered people and transsexuals who have a different sexual orientation to others but are not included in the glossary of ‘sexual orientation’ in most draft schemes. That diversity is also reflected in the multiple identities of many LGBT people, in that they may be from an ethnic minority, disabled, older or younger etc. We therefore hope that your authority seeks to address issues of multiple identities in its performance of the duty.

What we wish to see emerge from this process is a non-homophobic environment which enables workers, providers and recipients of services to feel comfortable and valued. To achieve this goal, public authorities must challenge pre-existing values and culture and undertake, in collaboration with representative groups such as CoSO, a comprehensive review of all their policies, both formal and informal. A non-homophobic environment will contribute towards the ending of social exclusion and marginalisation of LGBT people, in itself a positive outcome for the Public Authority.

In light of this, we are submitting this response to enable you to incorporate any necessary changes to your Scheme before final submission to the Equality Commission.

We are following the key elements of an equality scheme as set out in Section 3 of the guidelines and expanded upon in Section 4 (including Annex 1).

(c) Generally, while CoSO appreciates the efforts which have been made to produce draft schemes to a relatively tight timetable, we are nevertheless disappointed that so many schemes repeat the terminology of the Guidelines without explaining how these requirements will operate in practice. A good example of this is the repetition of a commitment to provide "necessary resources" towards the implementation of the duty. Indeed, many schemes qualify this requirement as "appropriate resources". CoSO would wish each scheme to outline what precise resources are being made available in this context of a new area of inequality. In particular, we consider that "necessary resources" includes a commitment in your final scheme to the resources necessary to construct a dialogue with representative groups, including, in our case, CoSO.

(e) Given the different needs, experiences, issues and priorities of LGBT people, it seems to CoSO essential that your authority’s programme of communication and training should make use of the experience and expertise of LGBT community, a point to which we will return in section 7 of this response.

(b) Despite the efforts of many public authorities to satisfy the Guidelines, we see consistent examples of the whole purpose of the duty, namely an open and inclusive dialogue with representatives of s. 75 categories, being thwarted by minimalist and exclusionary approaches towards the screening and scoping processes. Given our very limited resources and the timescale involved, CoSO is committed to a process whereby your first annual review should be a comprehensive one. In the light of the uniqueness of this duty and the new agenda of issues surrounding sexual orientation, this review should include, as part of an ongoing dialogue with LGBT groups, a re-evaluation of any previous screening/scoping decisions as a result of which sexual orientation was deemed irrelevant to particular policies.

(c) CoSO welcomes the development of an open, inclusive and constructive dialogue with public authorities. This process of consultation requires capacity building on our part. As an umbrella group we need time to consult our constituent organisations and assemble evidence of the impact of your policies on our community. We therefore require from you a commitment that adequate time, which may in certain circumstances be more than two months, be allowed for this process to be completed. While we expect most communications to be in writing, we welcome face-to-face meetings. An example of the "necessary resources" to underpin face-to-face meetings would be reasonable travel expenses for CoSO representatives attending them.

(d) CoSO is deeply concerned that many public authorities have failed to include us in their list of consultees. As we set out in more detail in section 3, we hold deep reservations about decisions to ‘scope out’ sexual orientation on the basis of totally inadequate evidence and a lack of consultation. In many schemes, our exclusion from the list of consultees is a form of ‘backdoor scoping’. We consider this to be a denigration of timely, open and inclusive dialogue, which the duty is meant to ensure. In our view, all Appendix 4 organisations should automatically be included in a public authority’s list of consultees, to which other relevant groups may be added.

CoSO accepts that it is open to public authorities to decide whether to screen their policies at this stage of drafting their equality schemes or wait until after their schemes have been approved. However, CoSO welcomes the decision of those public authorities which have deferred screening, because screening, as an exercise in preliminary impact assessment, requires greater consideration than that which is possible within these time constraints. We have found the tasks of both reconciling draft schemes with the Guidelines and responding to screening assessments to be quite separate exercises. We have come to the view, outlined in more detail below, that public authorities should either defer their screening processes until greater consideration can be given to them or approach any screening conducted in this stage in an inclusive fashion.

(a) CoSO is concerned that many public authorities are limiting the screening of policies to formal functions. We note that the policies to be screened should include employment and procurement policies as outlined in §2.10 of the Guidelines. We are particularly concerned that equality impact assessment should also encompass your authority's equal opportunities policy as it applies to your employees, providers and recipients of services. CoSO wishes to see your equal opportunities policy, if necessary, expanded to include discrimination on grounds of sexual orientation. Similarly, we are strongly of the view that your health and safety policy be reviewed as it applies to a safe working environment and your provision of services so that any harassment policy includes reference to harassment on grounds of sexual orientation. Finally, we would wish to see your purchasing and contracting-out policies included in impact assessment.

CoSO wishes your authority to pay particular attention in your final scheme towards the informal policies of your authority, including undocumented procedures and protocols. This is in accordance with the definition of "policies" set out in §2.2 of the Guidelines, that is, "a course or principle of action adopted or proposed by a government, party, business or individual". CoSO is at present beginning the process of gathering evidence and experiences from our community of the potential adverse impact, particularly of informal policies applied in practice by public authorities. We look forward to exploring these potential adverse impacts with you but object strongly to the consistent exclusion of informal policies from this screening process.

CoSO has anxieties about the screening processes already undertaken and about how future screening may be conducted. In particular, we are concerned at screening processes which have continued on into 'scoping', that is including or excluding certain categories of inequality from impact assessment, either explicitly or through exclusion from the list of consultees on impact assessment. It would seem that many of those public authorities which have already screened and scoped have excluded impact assessment on grounds of sexual orientation on the basis that they have no evidence of adverse impact. Sexual orientation is a new area of inequality about which little evidence has been accumulated. §1.1 of Annex 1 makes clear that "[p]ublic bodies must recognise the particular benefit of discussion and information gathering with groups representing people with disabilities and of different sexual orientations, in the absence of extensive data on these matters among their employees and recipients of services".

In CoSO's view, given the inclusive nature of the duty and the difficulties in investigating these issues in the timescale available, sexual orientation and other categories of inequality should be included in impact assessment unless public authorities have tangible evidence that there are no different participation rates and that no different "needs, experiences, issues and priorities" in relation to the policy at issue. CoSO anticipates that respect for the statutory duty involves an on-going review and dialogue on questions of inequality with relevant groups including CoSO rather than a 'once in 5 years' decision that a particular category of inequality does not require further consideration.

We take the view, in relation to the first screening criterion, that the collection of evidence of participation or uptake by persons of differing sexual orientations should be conducted, on the basis of sensitive systems of monitoring, in all cases where there is any possibility of differing participation rates. In relation to the second screening criterion, we consider that evidence of differing "needs, experiences, issues and priorities" is often obvious given the sensitivities surrounding issues of sexual orientation and the differing ways in which LGBT people live their lives.

It is therefore essential, as Guidelines indicate at para 4.1(2)(c), that open and inclusive dialogue should be entered into by public authorities and that those which have already screened/scoped should respond positively and inclusively to any reasoned representations made by relevant groups that a particular category of inequality, in our case, sexual orientation, should be included in impact assessment.

CoSO accepts that public authorities can give priority to particular criteria on basis of screening but only on the basis of maximum inclusiveness. In CoSO's view, social need can be judged by consideration of the social exclusion which many LGBT people suffer as a result of their sexual orientation. Inequality on grounds of sexual orientation, driven by dominant negative social attitudes and an unwillingness to address the differing needs of LGBT people, has a profound effect on the emotional, mental and physical health of LGBT people. In terms of economic, social and human rights, the recent judgment of the European Court of Human Rights, that intrusive investigations into the private lives of LGBT members of the British armed forces and their dismissal on grounds of their sexual orientation, is a good example of how LGBT people still need protection from the devastating consequences of homophobic attitudes by public authorities.

(b) We would refer you to our comments under stage 2. We look forward to consultation on screening processes with those authorities which have not yet undertaken screening. We would re-emphasise that those authorities which have undertaken screening should take all reasoned representations very seriously and engage in further consultations as part of a first year review of implementation of the duty.

(c) In the light of these profound effects on LGBT people, we feel strongly that timetables for equality impact assessments should operate on the basis that those policies which have the greatest impact on s. 75 categories should be assessed at the earliest possible stage of your 5 year programme particularly so that an ongoing dialogue can be conducted over them. We have a concern that many schemes appear to operate on the basis of ‘inverse prioritisation’ whereby the most sensitive issues are being placed at the end of the 5-year programme rather than at the beginning.

There is very little research on sexual orientation in Northern Ireland. CoSO is initiating a process whereby the adverse impact of public authority policies can be reported to us so that these examples can be incorporated into our dialogue with you. We appreciate that your authority will not have contemplated the monitoring of the sexual orientation of your employees or recipients of services and we are acutely aware of the difficulties which such monitoring will encounter. Nevertheless, we consider it essential that each public authority develops a sensitive system of voluntary and confidential indications of sexual orientation in close consultation with LGBT groups.

Due to the sensitivities surrounding sexual orientation, the Guidelines already acknowledge the value of qualitative or evaluative research. There must be the necessary funds to research into the impact of your authority’s policies on the LGBT community. Research conducted through and with the support of the LGBT community will provide the most accurate evidence upon which impact assessment can be conducted.

2. Assessments of Impacts

2.1 Once again, the question of differential impact, particularly where the impact may be indirect, raises a range of issues in relation to which your authority will have very limited expertise. We look forward to the formal consultation required at this stage of the process (under 4 below) but re-emphasise that precipitous decisions cannot be taken to screen/scope out sexual orientation issues, when there are so many imponderables about the impact of your authority’s policies on the LGBT community.

2.2 We note that many schemes set down criteria which they propose to adopt in relation to consideration of their impact assessments including "rights, resources, participation and values and norms". CoSO would wish to see a fuller explanation of these terms in final schemes. In particular, it would not wish to see use of the concept of "rights" restricted to existing legislative rights so as to downgrade the equal status of equality for those of differing sexual orientation, age and those with and without dependants. We would, in any case, point out that the rights of LGBT people are increasingly recognised, for example by the European Court of Human Rights as outlined above. We welcome the inclusion of the concept of "values and norms", particularly when it is indicated that "traditional roles, stereotypes … attitudes and behaviour" are to be confronted.

CoSO points out that we would wish to see adequate protection for LGBT people against infringement of our rights in employment and as recipients of services. It is at present lawful to undertake positive measures in favour of LGBT people, so long as no discrimination between lesbians and gay men occurs. In any event, CoSO re-emphasises the Guidelines which in turn emphasise "the importance of very careful consideration of policies which adversely impact on those categories defined by sexual orientation and age (both the young and the old) which are not currently covered by anti-discrimination legislation in Northern Ireland".

In our view, draft schemes are universally sparse on the mechanics of impact assessment and we have not seen any assurances that the ‘new’ areas of inequality will be given the level of consideration which the Guidelines require.

3. Mitigation and Alternative Policies

3.4 As stated in the §3.1 of the Guidelines "mitigation and alternatives are crucial elements of the process". We are once again generally disappointed at the lack of detail in draft schemes in relation to the way in which authorities propose to deal with these issues. CoSO notes that mitigation of adverse impact or alternative policies may not in fact, be more than adaptation of these policies to meet the needs of a more diverse society, for example through the recognition of same sex partnerships. CoSO therefore looks forward to a dialogue with your authority on these issues.

CoSO is wary that a hierarchy of inequality may reappear as adverse impacts are identified. CoSO would wish to impress upon you that all the s.75 categories must be given equal weight when mitigation and alternatives are being considered.

As we have indicated in our introductory statement, a significant number of LGBT people will have multiple identities and will therefore also come under other s.75 categories. We are particularly concerned that, in these cases of multiple identities, the sexual orientation aspect of equality of opportunity is fully respected.

CoSO notes that at present there may be little or no evidence as to the social and economic benefit of policies with regard to LGBT people, particularly given the invisibility and lack of consideration of issues affecting LGBT people. However the lack of such evidence should not preclude the implementation of a mitigation of policy or alternative policy. CoSO will of course work with public authorities to research these possibilities and to propose viable mitigation and alternative policies.

4. Formal Consultation on Impact Assessment

We would refer you again to our response set out in Section 2 above on consultation. In particular see our reference to methods of consultation.

4.3 CoSO feels strongly that there may be instances where it would be preferable if meetings were publicised only in the LBGT press. This would help LGBT people feel that they can attend safely, and without fear of ‘outing’. We feel that consultation must not be solely by direct invitation to representative organisations. Providing different spaces for the different needs of a diverse and complex community is part of ensuring that there is a meaningful consultation process.

4.4 CoSO objects strongly to the indication in some schemes that a charge may be made for the documentation which your authority is obliged to provide as part of the consultation process. This extraordinary proposition will actually penalise those with the least resources amongst s.75 categories. An outcome which totally contradicts the duty which authorities are seeking to implement.

Our comments under 4.3 and 4.4 apply here also.

7. Monitoring

As indicated under point 1 of the Annex, public authorities must develop a voluntary and confidential system of monitoring on grounds of sexual orientation so that, on the one hand the privacy of LGBT people is respected but on the other that meaningful data can be assembled on the adverse impact of your authority’s policies on the LGBT community. In the light of our earlier comments, we are particularly concerned that the readiness of LGBT people to supply information should be enabled by a sensitive system of data collection and monitoring.

CoSO would refer your public authority to comments made under (4) given the extensive overlap between what is set out in stage 5 of the guidelines and details of Annex 1, as described above.

CoSO accepts that Schedule 9 paragraph 9 (2) requires your authority to take impact assessment and consultation into account in your decision-making process. Nevertheless we would emphasise that Schedule 9 merely implements s.75 which itself requires that "due regard" be given to the duty to promote equality of opportunity between persons of different sexual orientation. Clearly Parliament intended the promotion of equality of opportunity to be not merely a relevant consideration but indeed a significant consideration in the policy-making functions of your authority.

In order for the policy-making process to be accountable to all s.75 constituencies, including the LGBT community, the results of each equality impact assessment must be seen to impact on this process. The results of an equality impact assessment should not be regarded as insignificant on any of the following grounds; that there is only a small amount of data, that there have been difficulties in the gathering of data or that there have been difficulties in interpreting data due to unfamiliarity with the issues.

CoSO believes that the needs of the LGBT community may be expressed in unfamiliar terms to the public authority. The public authority should work closely with CoSO to ensure that the results of impact assessments will be accurately interpreted. Otherwise the impact assessment procedures will not have been meaningful, and the needs of the LGBT community will have been ignored.

In light of the "different needs, experiences, issues and priorities" of LGBT people, CoSO takes the view that it would be very difficult for any public authority to provide training on LGBT issues for staff on an in-house basis. We believe that training will be most effective if developed utilising the expertise of representatives from the relevant constituencies.

CoSO is an umbrella group whose Constituent Organisations collectively represent a wide range of LGBT interests. CoSO is establishing a list of CoSO-accredited trainers. We are strongly of the view that public authorities should enter into detailed discussions with us on the provision of training.

We also believe that training - where the emphasis will be on raising awareness around LGBT issues, as relevant to your organisation - should be provided for all staff and not merely confined to staff at senior level.

The impact of such training should be evaluated and reviewed to ensure best practice throughout all areas relating to policies including procedures and protocols.

CoSO notes that there are particular issues of confidentiality for the LGBT community in regard to the placing of publicity and information on services in the public domain. Public access to information is not ensured by making something technically available on request since many LGBT people will not feel able to request information relating to LGBT issues. Instead CoSO would like to see public authorities also placing that information with relevant community groups and organisations, so that they might work together to ensure that information is easily accessible to the LGBT community.

In addition, CoSO approves of providing this information online but notes that this may in itself exclude specific socio-economic groups, including LGBT people, who are likely to suffer high levels of social and economic exclusion. Nevertheless CoSO would encourage the linking of public authority websites to the CoSO website and the other websites of LGBT organisations.

Questions of access to services are particular to specific sectors. We would return to the issues identified in our opening remarks, namely that LGBT people have been largely invisible and hence that their interests may not have been taken into account in access to services. Similarly, access to services must embrace the increasing diversity in society including through the lives of LGBT people.

In CoSO’s view the implementation of the statutory duty is not just about impact assessments. As outlined above, CoSO would wish to see an ongoing dialogue between ourselves and public authorities throughout the course of the five-year review process. We feel strongly that the timetable in Stage 9 is wider than the timetable for undertaking impact assessments in 3(c). We would wish to see detailed reference in your final scheme to the process for establishing and maintaining an ongoing dialogue with the LGBT community.

We reiterate that the timetable to be included in the Scheme should include a one-year review of screening/scoping decisions, particularly in relation to those public authorities which have included screening exercises in their schemes. As a result of any new research carried out and this ongoing dialogue, CoSO believes that it will become apparent to public authorities that the needs of LGBT people will impact on the policies of that public authority.

Public authorities should note that as this process matures the focus on particular issues may shift. As a result the final scheme should allow for flexible responses to emerging issues to be taken into account.

The scheme itself will only succeed in its goal of impacting on relevant, affected communities, and specifically the LBGT community, if it is also published and sufficiently promoted in the gay press. Only then will affected groups and individuals be aware of the schemes and thus benefit from their implementation.

CoSO accepts that many public authorities have relied upon the complaints procedure set out in the Guidelines (and indeed Schedule 9 of the 1998 Act) as the basis for their own complaints procedures. However, CoSO believes that public authorities should undertake an impact assessment on their own complaints procedures. On issues of sexual orientation, questions of sensitivity and confidentiality may preclude an individual from coming forward to make a personal complaint. Public authorities which rely on this highly individualistic form of complaints mechanism will be inflicting an adverse impact on LGBT people and may not receive complaints which they ought to consider. CoSO therefore requests that representative groups be able to make complaints to public authorities on behalf of individuals about whom some details might be given, e.g. first letters of post code, without full identification.

CoSO looks forward to working with the public authority to build a more open, responsive complaints procedure that takes into account the above concerns.

In terms of the publication and dissemination of the 5-year review, for example all public authorities should place the report in as many formats as possible to make it available to all section 75. Copies should be sent to CoSO and all constituent organisations.

We therefore expect that, by the end of this 5-year period, the constructive dialogue which we anticipate within this process will have been achieved and that the benefits of an open and transparent approach will have self-evidently enriched your decision-making processes. Furthermore, we anticipate that the process will have achieved its aim of a more equal society.

Equality Commission

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