Section 28

For the sex equality clause in the Constitution of Canada, see Section Twenty-eight of the Canadian Charter of Rights and Freedoms.

Section 28 or Clause 28 of the Local Government Act 1988 caused the addition of Section 2A to the Local Government Act 1986, which affected England, Wales and Scotland. The amendment was enacted on 24 May 1988, and 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". It was repealed on 21 June 2000 in Scotland as one of the first pieces of legislation enacted by the new Scottish Parliament, and on 18 November 2003 in the rest of the United Kingdom by section 122 of the Local Government Act 2003. As it did not create a criminal offence, no prosecution was ever brought under this provision, but its existence caused many groups to close or limit their activities or self-censor. For example, a number of lesbian, gay and bisexual student support groups in schools and colleges across Britain were closed owing to fears by council legal staff that they could breach the act.

History

Background

Section 28 originated in the social transition in British society from homosexuality as "illegal-but-discussed", to "legal-but-not-always approved", following debate in the 1950s and the 1967 decriminalisation of gay sex for those over the age of 21 in the Sexual Offences Act 1967.

The 1980s was the era in which HIV/AIDS was first reported. The first recorded victims of the disease were a group of gay men, and the disease became associated in the media, and at first even in medical circles, with gay and bisexual men in particular. The association of HIV/AIDS with gay and bisexual men worsened their stigmatisation, and this association correlated with higher levels of sexual prejudice, such as homophobic/biphobic attitudes.

Rising negative sentiments towards homosexuality eventually peaked in 1987, the year before the legislation was enacted. According to the British Social Attitudes Survey, 75% of the population said that homosexual activity was "always or mostly wrong", with just 11% believing it to be never wrong. Five years prior to the enactment, a similar BSAS poll had found that 61% of Conservative and 67% of Labour voters believed homosexual activity to be "always or mostly wrong".

The precursor was the publication in 1979 of LEA Arrangements for the School Curriculum, which required local authorities to publish their curriculum policies. Following the legalisation of homosexuality proposals for Scotland (added as an amendment to the 1980 criminal justice bill by Labour MP Robin Cook), guidance was published indicating that schools should not teach homosexuality as part of sex education lessons. This was part of a deal to ensure government support for legalisation of homosexuality in Scotland.

This was followed, two years later, by the School Curriculum (25 March 1981), in which the secretaries of state (for Education and Wales) said they had decided to 'set out in some detail the approach to the school curriculum which they consider should now be followed in the years ahead'. Every local education authority was expected to frame policies for the school curriculum consistent with the government's 'recommended approach' (DES 1981a:5) which required teaching of only heterosexual intercourse in schools.

The Greater London Council (GLC) directly started funding LGBT groups, and between 1981 and 1984 grants totalling at least £292,548 were given by the GLC to a variety of small gay groups. Another £751,000 was committed towards the setting up of the London Lesbian and Gay Community Centre in Islington. About ten of the 32 local authorities in London, most prominently Islington and Haringey were also funding gay groups at that time, one report estimating that these boroughs and the GLC together donated more than £600,000 to gay projects and groups during 1984.

In 1983, the Daily Mail reported that a copy of a book entitled Jenny lives with Eric and Martin, portraying a young girl who lives with her father and his male partner, was provided in a school library run by the Labour-controlled Inner London Education Authority. More and more councils began to adopt wide-ranging anti-discrimination policies (particularly Ealing, Islington, Camden and Manchester who employed officers to counter homophobia).

The attention to this, and the alliances between LGBT and labour unions (including the National Union of Mineworkers (NUM)) – formed by activist groups such as Lesbians and Gays Support the Miners and Lesbians Against Pit Closures – led to the adoption at the Labour Party Annual Conference in 1985 of a resolution to criminalise discrimination against lesbian, gay and bisexual people. This legislation was supported by block voting from the NUM. In addition, the election to Manchester City Council of Margaret Roff in November 1985 as the UK's first openly lesbian Mayor and the publication of Changing The World by the GLC in 1985 all fuelled a heightened public awareness of LGBT rights.

But it was not until 1986 that major controversy arose and widespread protest demonstrations made a major contribution towards the subsequent passing of Section 28.

During the 1987 election campaign, the Conservative Party (under the leadership of Margaret Thatcher) issued attack posters claiming that the Labour Party wanted the book Young, Gay and Proud to be read in schools, as well as Police: Out of School, The Playbook for Kids about Sex, and The Milkman's on his Way, which, according to the Monday Club's Jill Knight – who introduced Section 28 and later campaigned against same-sex marriage – were being taught to "little children as young as five and six", which contained "brightly coloured pictures of little stick men showed all about homosexuality and how it was done", and "explicitly described homosexual intercourse and, indeed, glorified it, encouraging youngsters to believe that it was better than any other sexual way of life".

A final factor was the tone taken by some activist groups such as the Gay Liberation Front, cited by Jill Knight, who in 1999 spoke about the perceived purpose of Section 28:

Why did I bother to go on with it and run such a dangerous gauntlet? ... I was contacted by parents who strongly objected to their children at school being encouraged into homosexuality and being taught that a normal family with mummy and daddy was outdated. To add insult to their injury, they were infuriated that it was their money, paid over as council tax, which was being used for this. This all happened after pressure from the Gay Liberation Front. At that time I took the trouble to refer to their manifesto, which clearly stated: "We fight for something more than reform. We must aim for the abolition of the family". That was the motivation for what was going on, and was precisely what Section 28 stopped.

Legislation

As a consequence of the DPP deciding that the Crown Prosecution Service could not prosecute the publishers of the Playbook for Kids about Sex, and the start of local government spending on support groups for LGBT people, papers and Conservative backbench members of Parliament became concerned that left-wing councils or schools would provide children with pro-homosexual material or commend homosexuality to children, both described by parliamentarians backing the bill as morally wrong but which could be carefully policed by judges in applying a narrow sense to the meaning of the word promote. In 1986 Lord Halsbury first tabled the Local Government Act 1986 (Amendment) Bill subtitled An act to refrain local authorities from promoting homosexuality in the House of Lords, drafted for him by Lord Campbell of Alloway. At the time, the incumbent Conservative government considered Halsbury's bill to be too misleading and risky. The bill successfully passed the House of Lords and Conservative MP Dame Jill Knight had the bill pass the first stage in the Commons. However, impeded by the 1987 general election, this Bill, commonly called the Earl of Halsbury's Bill failed. Its provisions were not reintroduced by the government on its re-election.

Instead, on 2 December 1987 in committee, Conservative MP David Wilshire proposed an amendment to the new Local Government Bill, as not yet passed, debated as Clause 27 and later as Clause 28, intended to be equivalent to the Earl of Halsbury's Bill. The government agreed to support the tabling of the amendment in exchange for Knight forgoing her place on the Health and Medicines Bill standing committee, – the amendment received the support of the Ministers for Local Government, Michael Howard and Michael Portillo. On being tabled, a compromise amendment was introduced by Simon Hughes on 8 December 1987 that was debated in the House on 15 December 1987 and which was defeated by a majority of 87, and the bill was approved on its first Commons debate that day. The bill was read a first time in the Lords two days later.

Lord McIntosh of Haringey took up the mantle of Simon Hughes' amendments in the Lords' second reading, furthered by the Bishop of Manchester Stanley Booth-Clibborn:

I should regret it if this Bill were to go through with this clause unamended. If it were to do so, I think it should certainly be confined to schools because otherwise there would be a real danger that some organisations which do good work in helping those with homosexual orientation, psychologically and in other ways, would be very much impeded.

A spectrum of literature across the ages was cited (in support of these compromise amendments) by Lord Peston. Nonetheless the Bill passed second reading in the Lords before going to a whole house committee.

In that debate Lord Boyd-Carpenter cited a book display, and proposals for "gay books" to be present in a children's home and a gay pride week to be permissible in schools by named London councils. However, on questioning, he said, "of course, 'promotion' can be treated in different ways. If the clause becomes law it will be a matter for the courts to interpret in the sensible way in which the courts do interpret the law." The SDP peer Viscount Falkland with Lord Henderson of Brompton proposed another compromise amendment the so-called "Arts Council" amendment and remarked "There is a suggestion in the clause that in no way can a homosexual have a loving, caring or responsible relationship".

Lord Somers countered:

One has only to look through the entire animal world to realise that it is abnormal. In any case, the clause as it stands does not prohibit homosexuality in any form; it merely discourages the teaching of it. When one is young at school one is very impressionable and may just as easily pick up bad habits as good habits.

The narrowing amendment failed by a majority of 55 voting against it; and the Lords voted the clause through the following day by a majority of 80. Michael Colvin MP thus on 8 March asked whether the minister, Christopher Chope would discuss with the Association of London Authorities the level of expenditure by local authorities in London on support for gay and lesbian groups to which he replied:

No. Clause 28 of the Local Government Bill will ensure that expenditure by local authorities for the purpose of promoting homosexuality will no longer be permitted.

The following day Tony Benn said during a debate in the House of Commons:

...if the sense of the word "promote" can be read across from "describe", every murder play promotes murder, every war play promotes war, every drama involving the eternal triangle promotes adultery; and Mr. Richard Branson's condom campaign promotes fornication. The House had better be very careful before it gives to judges, who come from a narrow section of society, the power to interpret "promote".

Mr Wilshire added that "there is an awful lot more promotion of homosexuality going on by local government outside classrooms", and the tempering amendments of that day's final debate were defeated by 53 votes.

Section 28 became law on 24 May 1988. The night before, several protests were staged by lesbian women (one believed to be Annie "Mechanic" who lived at Greenham Common Women's Peace Camp), including abseiling into Parliament and a famous invasion of the BBC's Six O'Clock News, during which one woman managed to chain herself to Sue Lawley's desk and was sat on by the newscaster Nicholas Witchell.

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", and that it "... limits the ability of local authorities to support schools in respect of learning and educating for equality. The effect of Section 28, therefore, is to inhibit anti discrimination initiatives and make it difficult for schools to prevent or address the serious problems that arise from homophobic bullying".

Similarly, the Department for Education and Science said that "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", to which Knight responded by saying 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". In response to these criticisms, supporters of the bill claimed that the NUT and Department of Education were mistaken, and the section did affect schools.

Some local authorities continued to deliver training to their staff in their education system on how to deliver their services without discrimination against gay people; Manchester City Council continued to sustain four officer posts directly involved in policy making and implementation, contributing to the 1992 report Section 28 of the Local Government Act 1988: a Guide for Workers in the Education Service, produced by Manchester City Council, May 1992, which proved that Section 28 did not prevent this work.

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 campaigners still saw abolishing Section 28 as a "a symbolic measure against intolerance", and campaigned for its repeal.

Political response

The introduction of Section 28 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!. Schools Out was formed in 1974 (as The Gay Teachers Association) and campaigned against the act, as well as supporting teachers on how to counter homophobia in schools. Many other groups not directly associated with LGBT rights also wanted the legislation removed, such as Gingerbread (a charity for single mothers), the Family Planning Association and the Terrance Higgins Trust. Many in the labour movement and trade unions also opposed the legislation.

The issue 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 for Section 28's retention, prompting pro-gay rights Conservatives, such as Steve Norris, to speak out against the decision. 2000 saw gay Conservative advisor Ivan Massow defect to the Labour Party in response to the Conservative Party's continued support of Section 28. The Secondary Heads Association and NASUWT objected to repealing the legislation, saying that "it would be inappropriate to put parents and governors in charge of each school's sex education policy".

In 2013, the death of former British Prime Minister Margaret Thatcher prompted critical comment from many LGBT organisations and individuals such as Peter Tatchell about her perceived anti-gay legacy, including Section 28, and Prime Minister David Cameron apologises for his party supporting the law.

Repeal

On 7 February 2000, the first attempted legislation to repeal Section 28 was introduced by the Labour Government as part of the Local Government Act 2000, but was defeated by a House of Lords campaign led by Baroness Young.

In the Scottish Parliament, the repeal process was more successful. The Equality Network led the campaign in favour of scrapping Section 28, while various groups campaigned against the repeal. The Scottish millionaire businessman Brian Souter privately funded a postal ballot as part of his Keep the Clause campaign, which returned an apparent 86% support for keeping the clause, from a response from slightly less than one third of the 3.9 million registered Scottish voters. Despite this, Section 28 was repealed by MSPs as part of the Ethical Standards in Public Life Act on 21 June 2000 with a 99 to 17 majority vote with only two abstentions.

Despite the previous reversals of the House of Commons by the House of Lords, backbench MPs introduced a fresh amendment to repeal Section 28 in England and Wales as part of another Local Government Bill in early 2003. In response to a further amendment tabled by Conservative MPs, that would have sent the matter to local referendums throughout the country, Edward Davey said "In a liberal democracy, the need to protect minorities properly sometimes means that protection cannot be achieved through the ballot box and that some things are not appropriate for a vote." After a backlash over the party leadership's attitude to gay rights, the Conservative Party allowed its MPs and peers a free vote on the repeal. The amendment was supported by the government and was passed by the Commons in March, by 368 to 76. With organised opposition in the Lords weakened by the death of Baroness Young, peers finally voted in favour of repeal by 180 to 130 in July.

On Thursday 18 September 2003 the Local Government Bill received Royal Assent as the Local Government Act 2003 and Section 28 was finally taken off the statute books. However, Kent County Council, decided to create their own version of Section 28 to keep the effect of the now repealed law in their schools. This was replaced on 16 December 2004 with provisions stating that heterosexual marriage and family relationships are the only firm foundations for society, as the statement now says: "We will ensure that sex education values family and marriage as the foundation of a civilised society, and a firm basis for the nurturing of children".

Support

Section 28 was supported by religious groups such as the Salvation Army, the Christian Institute, the African and Caribbean Evangelical Alliance, Christian Action Research and Education, the Muslim Council of Britain, and groups within the Catholic Church and the Church of England. The Conservative Party, despite dissent within its ranks on the issue, whipped its members in support of Section 28 in 2000, but in 2003, after further dissent from within the party, allowed a free vote. In the House of Lords, the campaign against the repeal of Section 28 was led by the late Baroness Janet Young. Newspapers that strongly supported Section 28 included The Daily Mail, The Sun and The Daily Telegraph.

In Scotland the most visible supporters of Section 28 were Brian Souter and the Daily Record newspaper.

The main argument in support of Section 28 was to protect 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:

• That promotion of homosexuality in schools undermines marriage.
• That Section 28 prohibited only the promotion, not legitimate discussion of homosexuality.
• That Section 28 did not prevent the counselling of pupils who are being bullied.
• Proponents pointed to various polls in an attempt to demonstrate that public opinion favoured keeping Section 28.

Opposition

Activists target a bus operated by Brian Souter's Stagecoach company at a rally in Albert Square, Manchester, on 15 July 2000

Gay rights advocates, such as Stonewall, OutRage!, Capital Gay, 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.

A packed benefit held at the Piccadilly Theatre on 5 June called "Before the Act" mustered over 60 performers, among them Timothy West, Michael Cashman, Simon Rattle, Paul Eddington, Maureen Lipman, the Medici Quartet, the Pet Shop Boys, Maggie Ford, Sheila Hancock, Jill Bennett, Stephen Fry, Richard Griffiths, Harold Pinter, Joan Plowright, Anthony Sher, Michael Cashman, Ned Sherrin and Ian McKellen.

A coalition of comic book creators, including Alan Moore, Frank Miller, Robert Crumb, Art Spiegelman, Neil Gaiman, and many others, produced a comic anthology called AARGH and raised at least £17,000 to contribute to the fight against the legislation, according to Moore. Boy George wrote a song opposed to Section 28, entitled "No Clause 28". The band Chumbawamba recorded a single entitled "Smash Clause 28! Fight the Alton Bill!" which was an attack on Clause/Section 28 and a benefit for a gay rights group; it also featured 12 pages of hand printed notes relating to gay rights. The legislation 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. Perhaps the most famous act of opposition to Section 28 came when Shaun Woodward, a Conservative MP with a transgender sister, defected from the Conservative Party and his seat and joined the ruling Labour Party in opposition to the Conservatives' continued support of Section 28.

The main point of argument claimed by opponents of Section 28 was the complaint that it discriminated against homosexuals and bisexuals, and hence was an intolerant and unjust law. Various other arguments were also used against Section 28 which are summarised as follows:

• That, by excluding homosexual support groups and appearing to prevent teachers from protecting victims of homophobic bullying, Section 28 was actually endangering vulnerable children.
• The claim that Section 28 made the assumption that homosexuals were inherently dangerous to children, implying an association between homosexuality, bisexuality and paedophilia, as obvious from the "predatory homosexuals" argument of the supporters of the law.
• Not only did Section 28 prevent the active promotion of homosexuality but also it appeared to give a legal reason to oppose it in schools and other forums if necessary.
• The claim that Section 28 was a law which 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, in contrast to the Section's opponents' view that homosexuality is biologically determined.
• It was no longer relevant due to the Learning and Skills Act of 2000 and the Education Act of 1996.

In retrospect

Some prominent MPs who supported the bill when it was first introduced have since either expressed regret over their support, changed their stance due to different circumstances which have evolved over time, or have 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".

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.

In 2000, David Cameron (at that time an unelected Conservative party member) repeatedly attacked the Labour government's plans to abolish Section 28, publicly criticising then-Prime Minister Tony Blair as being "anti-family" and accusing him of wanting the "promotion of homosexuality in schools". In 2001, Cameron was elected as Conservative MP for Witney; he continued to support Section 28, voting against its repeal in 2003. The Labour government were determined to remove Section 28 from law, and Cameron voted in favour of a Conservative amendment that retained certain aspects of the clause, which gay rights campaigners described as "Section 28 by the back door". The Conservative amendment was unsuccessful, and Section 28 was repealed by the Labour government without concession, with Cameron absent for the vote on its eventual repeal.

However, in June 2009, Cameron, then leader of the Conservative Party, formally apologised for his party's introduction of the law, stating that it was a mistake and had been offensive to gay people. He restated this belief in January 2010, proposing to alter Conservative Party policy to reflect his belief that equality should be "embedded" in British schools.

In 2015, Pink News accused the Christian-based Evangelical Alliance' report to the Women and Equalities Select Committee's transgender inquiry, which said in part that "children should be protected from having to sort through [questions regarding sex or gender] before they reach an appropriate age" as reminiscent of section 28.

Academies

Section 28 received renewed attention in late 2011, when Michael Gove, in Clause 28 of the Model Funding Agreement for academies and free schools, added the stipulation that the benefits of marriage be taught in schools. Although the clause does not explicitly mention sexual orientation, with same-sex marriage not being legal at the time, it prompted The Daily Telegraph (traditionally supportive of the Conservative Party) to draw comparisons between the two clauses.

Academies and the Department for Education came under greater scrutiny in August 2013, when LGBT activists, in co-ordination with the British Humanist Association (BHA), identified over forty schools whose policies either replicated the language of Section 28 in their sex and relationship education (SRE) policies or were "unhelpfully vague" on the issue. Several of the schools highlighted by the BHA included the Evelyn Grace Academy chain of faith schools – which opened after the repeal of Section 28, Tasker-Milward V.C. School, whose SRE policy, dating from 2008, implied the clause was still in force, and The Northumberland Church of England Academy, who was listed as a School Champion by LGB rights charity Stonewall and whose staff spoke at Stonewall's 2013 Education for All Conference. In light of the media coverage, the Welsh Government announced an investigation into the Tasker-Milward School, and the Department for Education, announcing its own investigation, stated that schools were prohibited under DfE guidance from discriminating on the basis of sexual orientation.

Cultural depictions

Margaret Thatcher Queen of Soho (2013), a drag comedy musical play, displays what life would have been like if Margaret Thatcher had got lost in Soho on the eve of the vote for section 28. It was produced in December 2013 by Jon Brittain, Aine Flanagan, Matt Tedford at Theatre503 in London.

See also

• LGBT rights in the United Kingdom
• LGBT History Month
• Briggs Initiative
• Russian LGBT propaganda law – similar law introduced in Russia in 2013
• Thatcherism
• "Promotion of homosexuality"

Sources

• Text of the Local Government Act 1986 as in force today (including any amendments) within the United Kingdom, from the UK Statute Law Database
• Text of the Local Government Act 1988 as in force today (including any amendments) within the United Kingdom, from the UK Statute Law Database
• (Full text of the section)
• (Newspaper clippings from 1989 demonstrating use of Section 28 to close LGBT student groups and cease distribution of material exploring gay issues)
• (article on Section 28 and the book that caused the controversy, Jenny lives with Eric and Martin, by author, Susanne Bosche)
• (History of Section 28 with notes on attempted legislation that led up to the final amendment)
• (Notes and links on Section 28 from a humanist perspective, with notes on usage of the Section 2a name.)
• (Potted history of Section 28 from 2000)
• (USSU National Policy Issues detailing notes on heightened violence against gays and lesbians in the lead-up to Section 28 enactment)
• (Report of gay Conservative Ivan Massow's defection to the Labour Party)
• (Nicholas Witchell's encounter with Section 28 protesters)
• (Statement by the NUT on the controversy of applicability of Section 28)
• (Knight's response to the controversy of applicability of Section 28)
• (Brian Souter's Keep the Clause campaign runs unofficial poll to discredit reformers)
• (Summary of points in support of Section 28)

External links

• Section 28 at DMOZ
• Text of the Local Government Act 1988 as in force today (including any amendments) within the United Kingdom, from the UK Statute Law Database
• Royal Assent of the Local Government 1988