The new Sexual Orientation Regulations contain an opt-out for insurance companies and blood donor clinics that allows them to continue to discriminate on the grounds of sexual orientation.
The SORs, published yesterday, protect gay, lesbian and bisexual people in England, Scotland and Wales from discrimination when accessing goods and services.
Regulation 27 provides an exception to the SORs where a person is treated less favourably on grounds of his sexual orientation in relation to an annuity, or life insurance policy, or similar matter.
The small print of the regulations, published yesterday, make clear that insurance companies will have to argue to retain this exemption after 2008.
There is a similar provision in gender and disability equality legislation that allows insurers to use actuarial data to decide on which premiums to charge.
A spokeswoman for the government department responsible for the SORs, Communities and Local Government, pointed to the code of practice operated by the Association of British Insurers.
Over 95% of the insurance industry abide by the ABI code.
“According to the code insurers should not ask about someone’s sexual orientation or negative HIV tests as a factor in considering insurance, but they might ask about lifestyles or behaviour, regardless of sexual orientation, that might put an individual at greater risk,” said the spokeswoman.
Stonewall, the gay equality organisation, said they were happy with the arrangement that will require the insurance industry to defend any renewal of their opt-out after 2008:
“In the past there have been issues around gay men being discriminated against when accessing insurance services.
“We will be keeping this under review but it is not something we see as a permanent exemption. They have to come back and explain why they need this,” said Ben Summerskill.
The burden of proof that Regulation 27 should be retained will fall on the insurance industry.
“Insurance companies will have to comply with the regulations, so prejudice against gay people will not be a reason for charging someone an extortionate premium for their mortgage insurance,” explained the DCLG spokeswoman.
The controversial ban on any man who has had sex with another man from giving blood was revisited by the government’s decision to write the policy in the SORs.
Currently, student groups and others are protesting the blanket ban, in an argument that echoes the one around insurance, namely that it is a person’s behaviour rather than the fact of their sexual orientation that should be used to calculate risk factors.
Regulation 28 of the SOR says that it is unlawful to discriminate against a person on grounds of their sexual orientation when he offers to donate blood, unless there is reasonable basis from clinical and epidemiological data to do so.
The Department of Communities said that this regulation was added on the advice of the Department of Health.
It appears to allow the National Blood Service to continue to discriminate against all gay men.
However, it also leaves the NBS open to a legal challenge as to the efficacy of their clinical evidence that all gay men are at a higher risk of passing on the HIV virus through a blood transfusion.
“It will enable the National Blood Service to maintain its policy on excluding donations by certain groups, including gay men, where this is tied to close and regular monitoring of blood samples from people donating blood in the UK,” said the DCLG spokeswoman.
Stonewall said that they are reviewing their policy towards blood donation.
“We were in any case surprised that this has been included because it is highly unlikely that giving blood constitutes receipt of a service,” commented Ben Summerskill.
The regulations already in force in Northern Ireland made no mention of blood donation or insurance companies.
The rules were delayed in the rest of the UK due to the thousands of submissions about them received by the government.
A protection against harassment was also included in the Northern Ireland regulations and not included in those for Scotland, Wales and England.
The government is currently conducting a review of discrimination laws, which will include an overhaul of all harassment legislation.
The review has been going on for over two years, is designed to try to simplify and improve the current situation.
Equality and anti-discrimination law has been built up in a patchy way and with differing levels of protection.
Stonewall said the exclusion of harassment regulations from the SOR in Britain was not a cause for concern and it was their understanding that the discrimination law review would cover anti-gay harassment.
Concerns that faith groups might gain some concessions to the regulations in respect of social services they provide, such as care homes or homeless shelters, proved unfounded.
George Broadhead, secretary of Gay and Lesbian Humanist Association, said: “We are extremely pleased that the regulations haven’t been unduly compromised by concessions to religious groups.
“It also gives us hope that if the government proceeds with its intention to hand many welfare services over to religious groups, that they will not be able to discriminate in the provision of these services on the grounds of sexual orientation.
“The government has obviously come to the conclusion that when there is a clash of rights, gay rights must be put before the rights of the religious.”
In England and Scotland, the church failed to gain an exemption from the SOR for their adoption agencies.
From the end of 2008 they will have to comply with the new rules or close their agencies.
Gay MP Chris Bryant told PinkNews.co.uk that he is delighted that the churches failed to get any exemptions, and that gay people will be protected when accessing services.
“The pink pound is as good as everyone else’s,” he said.
The DCLG announced yesterday that, subject to an affirmative vote in both Houses of Parliament, the SORs will come into force on April 30th.