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 of the Local Government Act 1988 was a contrrroversial amendment to the United Kingdom's Local Government Act 1986, enacted on 24 May 1988 and repealed on 21 June 2000 in Scotland, and on 18 November 2003 in the rest of the UK by section 122 of the Local Government Act 2003.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".

Because 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 due to fears by council legal staff that they could breach the Act.

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. Since the effect of the amendment was to insert a new section '2A' into the previous Local Government Act, it was also sometimes referred to as Section 2A.

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 homosexual acts for those over the age of 21 in the Sexual Offences Act 1967.

The 1980s were turbulent years politically in the UK, coinciding with the large scale social changes of Margaret Thatcher's Government (see: Thatcherism) and the rise of AIDS. The spread of AIDS had also brought about widespread fear, much of which was directed at homo- and bisexuals. Some believed that sexual orientation played a factor in the spread of disease, and negative, often unfair sentiments toward the homosexual community were a consequence. These sentiments intensified already-existing opposition to school policies, activities, and practices, which supporters claimed were efforts to be inclusive of sexual minorities, and which opponents deemed as the promotion of homosexuality.

Given the domination of central government by conservative thinking, most gay rights activists were in the Labour Party or the Liberal Party. These campaigners and their supporters progressively managed to raise these issues in local party meetings, resulting in a number of local authorities changing their policies to include the words "sexual orientation" in a list of unacceptable discriminations. The large Metropolitan Borough councils outside the capital, the Inner London Education Authority and the Greater London Council regularly took out job adverts in the national press and elsewhere making a very public statement about the unacceptability of homophobic behaviour within their organisations.

In 1983 the Daily Mail, a British right-wing 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 homosexual 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 work within the political parties by activists, led to the adoption by the Labour Party Annual Conference in 1985 of a resolution calling for the end of all legal discrimination against homosexuals. In addition, the election to Manchester City Council of Margaret Roff (November 1985) as the UK's first openly homosexual Mayor and the publication of Changing The World by the GLC in 1985 all fuelled a heightened public awareness of the issues.

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.

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

Why did I bother to go on with it and run such a dangerous gauntlet? I was then Chairman of the Child and Family Protection Group. 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. ... Parents certainly came to me and told me what was going on. They gave me some of the books with which little children as young as five and six were being taught. There was The Playbook for Kids about Sex in which brightly coloured pictures of little stick men showed all about homosexuality and how it was done. That book was for children as young as five. I should be surprised if anybody supports that. Another book called The Milkman's on his Way explicitly described homosexual intercourse and, indeed, glorified it, encouraging youngsters to believe that it was better than any other sexual way of life.

Legislation

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 first 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. The bill successfully passed the House of Lords and was adopted by then-Conservative MP Jill Knight. However, overshadowed by the 1987 general election, Halsbury's bill failed.

On 2 December 1987 in Committee, Conservative MP David Wilshire re-introduced an amendment to the 1988 Local Government Bill for a similar clause, entitled Clause 28. The new amendment was also championed by Knight and accepted and defended by Michael Howard, then Minister for Local Government. 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, several protests were staged by lesbian women, 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."

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.

In response to these criticisms, supporters 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 homosexuals. 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. Their pioneering work was never once challenged by the act.

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 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.

While the gay rights movement was united over Section 28, 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 that Section 28 should not be repealed, prompting pro-gay rights Conservatives, 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.

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 as part of the Local Government Act 2000, 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. 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 (although, more accurately, it was Section 2A of the relevant Scottish legislation) was repealed by MSPs as part of the Ethical Standards in Public Life etc. (Scotland) Act 2000 on 21 June 2000 with a 99 to 17 majority vote with only two abstentions.

On 24 July 2000 the Local Government Act 2000 was sent back to the Lords with an amendment re-introducing repeal. Concessions were made in the form of the new Learning and Skills Act 2000 which emphasised family values and which was hoped would win over opponents. However, the repeal was again defeated 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 by a vote of MPs.

In a part of the legal process (Standing Committee A) 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."

This passed the Lords and received Royal Assent on 18 September 2003 and the repeal became effective on 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. This was replaced with provisions stating that heterosexual marriage and family relationships are the only firm foundations for society on 16 December 2004.

Support

Section 28 was supported by religious groups 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 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

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.

A coalition of comic book creators, including Moore, Frank Miller, Robert Crumb, Art Spiegelman, Neil Gaiman, and many others, produced a magazine called AARGH (Artists Against Rampant Government Homophobia) and raised at least the equivalent of US$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. 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. 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 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 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 accused him of wanting the "promotion of homosexuality in schools". In 2003, once Cameron had been elected as Conservative MP for Witney, he continued to support Section 28. As the Labour government were determined to remove Section 28 from law, 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". This was unsuccessful, and Section 28 was repealed by the Labour government without concession (Cameron was absent for the vote on its eventual repeal). However, in June 2009, Cameron—then leader of the Conservative Party whilst campaigning to be the next Prime Minister—formally apologised for his party introducing the law, stating that it was a mistake and had been offensive to gay people. He restated this belief in January 2010 and proposed to alter the policy of the Conservative Party to reflect his belief that equality should be taught in British schools.

See also

• LGBT rights in the United Kingdom
• Homosexuality
• Sex education
• Age of consent

References

• Template:UK-SLD
• Template:UK-SLD
• "Local Government Act (1988)". Section 28. Retrieved February 9, 2005. (Full text of the section)
• "Knitting Circle". Section 28 1989 Gleanings. Archived from the original on 2006-11-14. Retrieved February 21, 2005. (Newspaper clippings from 1989 demonstrating use of Section 28 to close LGBT student groups and cease distribution of material exploring gay issues)
• "The Guardian (31 January 2000)". Jenny, Eric, Martin ... and me. London. 2000-01-31. Retrieved February 9, 2005. (article on Section 28 and the book that caused the controversy, Jenny lives with Eric and Martin, by author, Susanne Bosche)
• "Knitting Circle (9 August 2001)". Section 28. Retrieved February 21, 2005. (History of Section 28 with notes on attempted legislation that led up to the final amendment)
• "Gay and Lesbian Humanist Society". Section 28. Retrieved February 28, 2005. (Notes and links on Section 28 from a humanist perspective, with notes on usage of the Section 2a name.)
• "When gay became a four-letter word". BBC News. 2000-01-20. Retrieved June 4, 2005. (Potted history of Section 28 from 2000)
• "USSU National Policy Issues (28 January 1988)". Section 5.2.1 Stop Clause 28 (of Local Government Bill). Archived from the original on 2005-05-05. Retrieved June 29, 2005. (USSU National Policy Issues detailing notes on heightened violence against gays and lesbians in the lead-up to Section 28 enactment)
• "Tory adviser defects to Labour". BBC News. 2000-08-02. Retrieved February 21, 2005. (Report of gay Conservative Ivan Massow's defection to the Labour Party)
• "Scotsman.com News". Nicholas Witchell: A Celebration. Archived from the original on 2005-12-28. Retrieved May 18, 2005. (Nicholas Witchell's encounter with Section 28 protesters)
• "National Union of Teachers (5 April 2003)". NUT campaign to repeal Section 28. Retrieved February 9, 2005. (Statement by the NUT on the controversy of applicability of Section 28)
• "The Sunday Times (London) (29 May 1988)". Schools Escape Clause 28 in 'Gay Ban' Fiasco. Retrieved February 9, 2005. (Knight's response to the controversy of applicability of Section 28)
• "(30 May 2000)". Poll supports S28 retention. 2000-05-30. Retrieved February 19, 2005. (Brian Souter's Keep the Clause campaign runs unofficial poll to discredit reformers)
• "The Christian Institute". Briefing Paper - Section 28. Retrieved May 9, 2005. (Summary of points in support of Section 28)

External links

• Section 28 at Curlie
• Full Text of the Local Government Act 1988
• The Section 28 Battle. 2000-07-24 http://news.bbc.co.uk/1/hi/uk/613023.stm. Retrieved July 24, 2000. {{cite news}}: Check date values in: |accessdate= (help); Missing or empty |title= (help)