Section 28
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- For the sex equality clause in the Constitution of Canada, see Section Twenty-eight of the Canadian Charter of Rights and Freedoms
Section 28 was a controversial amendment to the United Kingdom's 1988 Local Government Act, enacted on 24 May 1988 and repealed on 18 November 2003. The amendment stated that a local authority "shall not intentionally promote homosexuality or publish material with the intention of promoting homosexuality" or "promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship"[1].
Some people believed that Section 28 prohibited local councils from distributing any material, whether plays, leaflets, books, etc, that portrayed gay relationships as anything other than abnormal. Teachers and educational staff in some cases were afraid of discussing gay issues with students for fear of losing state funding (see Controversy over applicability for more information).
No successful prosecution was ever brought under this legislation, but its existence caused many groups to close or limit their activities or self-censor. For example, a number of lesbian, gay, transgender, and bisexual student support groups in schools and colleges across Britain were closed due to fears by council legal staff that they could breach the Act [2].
While going through Parliament, the amendment was constantly relabelled with a variety of clause numbers as other amendments were added to or deleted from the Bill, but by the final version of the Bill, which received Royal Assent, it had become Section 28. Section 28 is sometimes referred to as Clause 28 — in the United Kingdom, Acts of Parliament have sections, whereas in a Bill (which is put before Parliament to pass) those sections are called clauses.[3]. Since the effect of the amendment was to insert a new section '2a' into the Local Government Act, it was also sometimes referred to as Section 2a[4].
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History
The origins of Section 28 lie in intense media interest and public fears over policies of the more left-wing local authorities towards homosexuality and education. The legal measure was brought into law in a Government Act by Margaret Thatcher's Conservative Government. The spread of AIDS had brought about wide-spread public panic and fear, much of which was directed at gays as perceived carriers of disease. These sentiments intensified already-existing opposition to school policies that supporters characterized as efforts to be inclusive of sexual minorities, and which opponents deemed to be promotion of homosexuality.
In 1983 the Daily Mail, a British tabloid newspaper, reported that a copy of a book entitled Jenny lives with Eric and Martin — portraying a little girl who lives with her father and his gay partner — was provided in a school library run by the Labour-controlled Inner London Education Authority. It is thought the resulting moral panic made a major contribution towards the subsequent passing of Section 28.[5]
As a consequence, many Conservative backbench MPs became concerned that left-wing councils were indoctrinating young children with what they considered to be homosexual propaganda. In 1986 Lord Halsbury tabled a Private Member's Bill in the House of Lords entitled "An act to refrain local authorities from promoting homosexuality". At the time, the incumbent Conservative government considered Halsbury's bill to be too misleading and risky. However, the law successfully passed the House of Lords and was adopted by Conservative MP Dame Jill Knight. However, swamped by the announcement of the 1987 general election and lacking government support, Halsbury's bill failed.
On 7 December, 1987 Conservative MP David Wilshire re-introduced an amendment to the Local Government Act for a similar clause, entitled Clause 28[6]. The new amendment was championed by Knight and accepted and defended by Michael Howard, Minister for Local Government. Despite having very little to do with the broad remit of the Act, which dealt with the compulsory tendering of school services[7], they attempted to quickly and quietly slip the amendment through Parliament. After being debated on 8 December, 1987 it was presented to the House of Commons on 15 December 1987, shortly before the parliamentary Christmas recess.
Section 28 became law on 24 May, 1988. The night before, lesbians protested, abseiling (rappelling) into Parliament and famously invading the BBC's Six O'Clock News[8]. One managed to chain herself to Sue Lawley's desk and was sat on by Nicholas Witchell. [9]
Controversy over applicability
After Section 28 was passed there was some debate as to whether it actually applied in schools or whether it applied only to local authorities. Whilst head teachers and Boards of Governors were specifically exempt, schools and teachers became confused as to what was actually permitted and tended to err on the side of caution.
A National Union of Teachers (NUT) statement remarked that "While Section 28 applies to local authorities and not to schools, many teachers believe, albeit wrongly, that it imposes constraints in respect of the advice and counselling they give to pupils. Professional judgement is therefore influenced by the perceived prospect of prosecution." [10]
Similarly, the Department for Education and Science made the following statement in 1988 regarding Section 28:
- "Section 28 does not affect the activities of school governors, nor of teachers... It will not prevent the objective discussion of homosexuality in the classroom, nor the counselling of pupils concerned about their sexuality."
It is said that when Knight heard this, she was somewhat upset, remarking that:
- "This has got to be a mistake. The major point of it was to protect children in schools from having homosexuality thrust upon them." [11]
In response to these criticisms, supporters claimed that the NUT and Department of Education were mistaken, and the section did affect schools.
Certainly, before its repeal, Section 28 was already largely redundant: sex education in England and Wales has been regulated solely by the Secretary of State for Education since the Learning and Skills Act 2000 and the Education Act 1996. Nevertheless, many liberal and conservative campaigners still saw Section 28 as a symbolic issue and continued to fight their own particular causes over it until its repeal.
Political response
The introduction of Section 28 was a blow to the gay rights cause, but it also served to galvanise the disparate British gay rights movement into action. The resulting protest saw the rise of now famous groups like Stonewall, started by, amongst other people, Ian McKellen, and OutRage!, subsequently led by Peter Tatchell.[12]
While the gay rights movement was united over Section 28, gay issues began to divide the Conservative party, heightening divisions between party modernists and traditionalists. In 1999 Conservative leader William Hague controversially sacked frontbencher Shaun Woodward for refusing to support the party line that Section 28 should not be repealed [13], prompting pro-gay rights Tories, such as Steve Norris, to speak out against the decision. 2000 saw prominent gay Conservative Ivan Massow defect to the Labour Party in response to the Conservative Party's continued support of Section 28.[14]
There is only one case of Section 28 being used to bring a case to the courts against a council. In May, 2000 — the first and last case of its kind — the Christian Institute unsuccessfully took Glasgow City Council to court for funding an AIDS support charity which the Institute alleged promoted homosexuality.
Repeal
On 7 February, 2000, the first attempted legislation to repeal Section 28 was introduced by the Labour Government, but was defeated by a House of Lords campaign led by Baroness Young.
In the newly devolved Scottish Parliament the repeal process was more successful. Despite the efforts of various groups — including an attempt by millionaire and evangelical Christian Brian Souter to run his own privately funded public poll (which showed overwhelming support for the clause - 86.8% in favour) as part of his Keep the Clause campaign [15] — Section 28 (although, more accurately, it was Section 2A of the relevant Scottish legislation) was successfully repealed as part of the Ethical Standards in Public Life etc. (Scotland) Act 2000 on 21 June, 2000 with a 99 to 17 vote, with only two abstentions.
On 24 July, 2000 legislation to repeal Section 28 was once again re-introduced and passed the Commons in a free vote. In the intervening period between the last attempt to repeal Section 28 the Labour Government had drastically reformed the House of Lords, with the passage into law of the House of Lords Act 1999, which removed the vast majority of hereditary peers from the Upper House, leaving only 92. Concessions were also made in the form of the new Learning and Skills Bill which emphasised family values and which was hoped would win over opponents. However the repeal once again stalled in the House of Lords.
Despite successive defeats in the House of Lords of attempts to repeal Section 28 in England and Wales, the Labour government passed legislation to repeal this section as part of the Local Government Act 2003. This passed the Lords and received Royal Assent on the 18 September 2003 and the repeal became effective on the 18 November 2003.
The Conservative-run Kent County Council however decided to create their own version of Section 28 to keep the effect of the now repealed law in their schools. [16] This was replaced with provisions stating that heterosexual marriage and family relationships are the only firm foundations for society on 16 December 2004. [17]
Support
Section 28 was primarily supported by religious groups opposed to LGBT rights such as The Christian Institute, the African and Caribbean Evangelical Association, the Christian Action Research and Education, the Muslim Council of Britain, and groups within the Roman Catholic Church and the Church of England. The Conservative Party, despite dissent within its ranks on the issue of gay rights, remained in favor of keeping Section 28 up until its repeal. In the House of Lords the campaign against the repeal of Section 28 was successfully led by the late Baroness Young, who became synonymous with opposition to gay rights in the House of Lords. Newspapers that strongly supported Section 28 included The Daily Mail and The Daily Telegraph.
In Scotland the most visible supporters of Section 28 were Brian Souter and the Daily Record newspaper.
The main argument used in support of Section 28 was that it protected children from predatory homosexuals and advocates seeking to indoctrinate vulnerable young people into homosexuality. Various other arguments were also used in support of Section 28 which are summarised as follows:
- The promotion of homosexuality in schools undermines marriage.
- Section 28 only prohibited the promotion of homosexuality and did not prevent legitimate discussion.
- Section 28 did not prevent the counselling of pupils who are being bullied.
- Proponents pointed to various polls to demonstrate that public opinion favoured keeping Section 28.[18]
Opposition
Gay rights advocates, such as Stonewall, OutRage!, The Pink Paper and the Gay Times formed the major opposition to Section 28 and led the campaign for its repeal. Prominent individuals who spoke out for the repeal of Section 28 included Sir Ian McKellen, Michael Cashman, Ivan Massow, Mo Mowlam, Simon Callow, Annette Crosbie, Michael Grade, Jane Horrocks, Michael Mansfield QC, Helen Mirren, Claire Rayner, Ned Sherrin and Alan Moore. Boy George wrote a song opposed to Section 28, entitled "Clause 28". The song "Shoplifters of the World Unite" by The Smiths is also rumoured to be about Section 28. It was also opposed by some religious groups and leaders, such as Richard Harries, Bishop of Oxford. Newspapers that came out in opposition included The Guardian, The Independent and The Daily Mirror. Political parties that were opposed to Section 28 included the Labour Party, the Liberal Democrats and the Green Party. In the House of Lords the campaign for repeal was led by openly-gay peer Waheed Alli.
The main point of argument against Section 28 was that its opponents claimed it discriminated against homosexuals, and that it was an intolerant and unjust law. Various other arguments were also used against Section 28 which are summarised as follows:
- Evidence was emerging that, by excluding gay support groups and gagging teachers from protecting victims of homophobic bullying, Section 28 was actually endangering vulnerable children.
- Section 28 came with a loaded, homophobic assumption that homosexuals were inherently dangerous to children, wrongly equating homosexuality with paedophilia.
- Not only did Section 28 prevent the promotion of homosexuality, it appeared to give a legal reason to oppose it in schools and other forums.
- The fact that Section 28 was law gave an impression to the public that the government sanctioned homophobia.
- The idea that homosexuality could be "promoted" implied that homosexuality was a choice which people could be persuaded to make. Many groups opposing the clause argued that sexual orientation is biologically determined and therefore the basic concept of the legislation was damaging and misleading.
- Polls indicated widespread acceptance of homosexuality and indicate that parents would like their children to be taught tolerance for LGBT people.
- It led to confusion for teachers about what they could do to support pupils who faced homophobic bullying and abuse.
- It was no longer relevant thanks to the Education and Skills Act 2000 and the Education Act 1996.
In Retrospect
Some prominent MPs who supported the bill when it was first introduced have since either expressed regret over their support or argued that the legislation is no longer necessary.
In an interview with gay magazine Attitude during the 2005 election, Michael Howard, then leader of the Conservative Party, commented:
”(Section 28) was brought in to deal with what was seen to be a specific problem at the time. The problem was the kind of literature that was being used in some schools and distributed to very young children that was seen to promote homosexuality. …. I thought, rightly or wrongly, that there was a problem in those days. That problem simply doesn’t exist now. Nobody’s fussed about those issues any more. It’s not a problem, so the law shouldn’t be hanging around on the statute book.”[19]
In February, 2006, Conservative Party Chairman Francis Maude told Pinknews.co.uk that the policy, which he had voted for, was wrong and a mistake.[20]
See also
- Homosexuality
- Gay rights in the United Kingdom
- Sex education
- Age of consent
- Homosexual recruitment (a conspiracy-type view of the presentation of homosexuality)
External links
References
- Template:Cite web (Full text of the section)
- Template:Cite web (Newspaper clippings from 1989 demonstrating use of Section 28 to close LGBT student groups and cease distribution of material exploring gay issues)
- Template:Cite web (article on Section 28 and the book that caused the controversy, Jenny lives with Eric and Martin, by author, Susanne Bosche)
- Template:Cite web (History of Section 28 with notes on attempted legislation that led up to the final amendment)
- Template:Cite web (Notes and links on Section 28 from a humanist perspective, with notes on usage of the Section 2a name.)
- Template:Cite web (Potted history of Section 28 from 2000)
- Template:Cite web (USSU National Policy Issues detailing notes on heightened violence against gays and lesbians in the lead-up to Section 28 enactment)
- Template:Cite web (Report of gay Conservative Ivan Massow's defection to the Labour Party)
- Template:Cite web (Nicholas Witchell's encounter with Section 28 protesters)
- Template:Cite web (Statement by the NUT on the controversy of applicability of Section 28)
- Template:Cite web (Knight's response to the controversy of applicability of Section 28)
- Template:Cite web (Brian Souter's Keep the Clause campaign runs unofficial poll to discredit reformers)
- Template:Cite web (Summary of points in support of Section 28)nl:Sectie 28