Section 28

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Section 28 of the Local Government Act 1988 caused the addition of Section 2A to the Local Government Act 1986 (affecting England and Wales and Scotland and Northern Ireland), enacted on 24 May 1988. 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teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship".^[1] It was repealed on 21 June 2000 in Scotland as one of the first pieces of legislation enacted by the new Scottish Parliament, and on 18 November 2003 in the rest of the United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.^[2]

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.^[3]

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.^[4] 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.^[5]

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.^[6]

The 1980s was the era of Margaret Thatcher's Government, which brought large-scale social changes (see: Thatcherism); it was also the era in which AIDS was first reported. The spread of AIDS brought about widespread fear, much of which was directed at homosexuals and bisexuals. The first recorded victims of the disease were a group of homosexual men,^[7] and the disease became associated in the media, and at first even in medical circles, with homosexuals in particular.^[8] This encouraged negative sentiments toward homosexuals, which intensified 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.

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 then population held homosexual activity to be 'always or mostly wrong', with just 11% believing it to be never wrong. As of 2012, those figures stand at 28% and 47% respectively. Five years prior to the enactment, a similar BSAS poll had found that 61% of Conservative and 67% of Labour identifying voters believed homosexual activity to be 'always or mostly wrong'.^[9]

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 sex in schools.

Given the domination of central government by conservative thinking, most gay rights activists were to be found 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 (GLC) 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.The GLC also directly started funding gay groups. Between 1981 and 1984 grants totalling at least £292,548 were given by the GLC to a variety of small gay groups and another £751,000 was committed towards the setting up of the London Lesbian and Gay Community Centre in Islington.^[10] 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.^[11]

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 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).^[12]

The attention to this, and work within the political parties by activists, led to the adoption at 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.^[13]

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.[14]

”

Legislation

As a consequence of the DPP deciding that the CPS could not on balance, under existing legislation prosecute the publishers of the Playbook mentioned above, 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-homosexuality 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^[15] 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.^[16] 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,^[17] – 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,^[15] 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.^[18]

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.^[19]

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.^[20][21]

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.^[22]

The following day Tony Benn said in debate:

...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.^[23]

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,^[4] during which one woman managed to chain herself to Sue Lawley's desk and was sat on by the newscaster Nicholas Witchell.^[24]

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."^[25]

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.[26]

”

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.[26]

”

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.^[12] 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,^[4] started by, amongst other people, Ian McKellen, and OutRage!,^[4] subsequently led by Peter Tatchell. Schools OUT which had been formed back in 1974 worked tirelessly both against the act and supported and trained teachers on how to counter homophobia and make LGBT people visible in schools.

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 for Section 28's retention,^[27] 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.^[28]

There is only one reported case of Section 28 being used before the courts against a Council. In May 2000— seemingly 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.

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 legacy, including Section 28 (or Clause 28).^[29][30]

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. 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.^[31][32] 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 these 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.^[33]

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."^[34]

This passed the Lords, 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.^[35] This was replaced on 16 December 2004 with provisions stating that heterosexual marriage and family relationships are the only firm foundations for society.^[36] 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."^[37]

Support

Section 28 was supported by religious groups such as the Salvation Army,^[38] the Christian Institute, the African and Caribbean Evangelical Association, 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.^{[39][40][41][42][43][44]}

Opposition

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 5th 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.^[46] 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.

Due in part to the alliances between LGBT and labour unions forged by the Lesbians and Gays Support the Miners campaign of 1984, several labour unions including the National Union of Mineworkers also opposed the legislation.^[47]

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.^[48]

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.^[49]

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".^[50] In 2003, Cameron was elected as Conservative MP for Witney; he continued to support Section 28, voting against its repeal in that year.^[51] 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".^[52] 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.^[53] He restated this belief in January 2010, proposing to alter Conservative Party policy to reflect his belief that equality should be taught in British schools^[54] though he has yet to further this proposal since he became Prime Minister in May 2010.

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.^[55] 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.^[56]

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.^[57] 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.^[58] In light of the media coverage, the Welsh Government announced an investigation into the Tasker-Milward School,^[59] 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.^[60]

Cultural depictions

• Margaret Thatcher Queen of Soho (2013) A drag comedy musical play imagining 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^[61]

See also

• LGBT rights in the United Kingdom
• Age of consent

References

Sources

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

• "The Section 28 Battle". BBC News website. 24 July 2000. Retrieved 24 July 2000.  Check date values in: |accessdate= (help)