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Women Bishops: Equality, Rights and Disarray

  • Rob Clucas (a1) and Keith Sharpe (a2)
Abstract

In this article we discuss the recent history of the failed draft Bishops and Priests (Consecration and Ordination of Women) Measure, situating this within the broader context of the ordination of women and debates around the Equality Act exceptions for an organised religion. We aim to provide an account of the ways in which equality rights have been implemented in the relevant law; how the Church of England is responding to these rights; and how broader society understands the importance of gender equality and reacts to Synod's rejection of the draft Measure. We analyse these with reference to theories of heteronormativity and scholarship of human rights. In doing so, we aim to explain what is happening in the Church of England and broader society, and draw some conclusions about the current opportunities open to the Church and the state in matters of rights and equality.1

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2 Clucas, R, ‘Religion, sexual orientation and the Equality Act 2010: gay bishops in the Church of England negotiating rights against discrimination’, (2012) 46 Sociology 936950; Sharpe, K, The Gay Gospels: good news for lesbian, gay, bisexual and transgendered people (Winchester, 2011).

3 Jackson, S, Heterosexuality in Question (London, 1999).

4 Enabled by Article 17(1) Protocol No 14 to the ECHR, amending Article 59(2) of the ECHR.

5 Eweida and Others v The United Kingdom (App Nos 48420/10, 59842/10, 51671/10 and 36516/10), 15 January 2013, ECtHR, Fourth Section.

6 See also, in this issue, Hill, M, ‘Religious symbolism and conscientious objection in the workplace: an evaluation of Strasbourg's judgment in Eweida and Others v United Kingdom’, (2013) 15 Ecc LJ 191203.

7 See also Articles 8, 17 and 19 TFEU.

8 Hynes, P, Lamb, M, Short, D and Waites, M, ‘Sociology and human rights: confrontations, evasions and new engagements’, (2010) 14 International Journal of Human Rights 824.

9 Woodiwiss, A, Human Rights (Abingdon, 2005), p 5.

10 Jackson, Heterosexuality in Question, p 157; Seidman, S, Beyond the Closet: the transformation of gay and lesbian life (New York, 2002), p 6.

11 Waites, M, ‘Equality at last? Homosexuality, heterosexuality and the age of consent in the United Kingdom’ (2003) 37 Sociology 637 at p 641.

12 Clucas, ‘Religion, sexual orientation and the Equality Act 2010’, p 939.

13 For example in the provisions for the protected characteristic of gender reassignment.

14 Percy v Church of Scotland [2005] UKHL 73.

15 Aston Cantlow and Wilmcote with Billesley PCC v Wallbank [2003] UKHL 37; [2004] 1 AC 546 per Lord Rodger at para 154.

16 For further discussion of this issue and the Aston Cantlow cases, see George, C, ‘The ecclesiastical common law: a quarter-century perspective’, (2012) 14 Ecc LJ 2730.

17 Emphasis added.

18 Emphasis added.

19 See Webb v Emo Air Cargo (UK) Ltd (No 2) [1995] 1 WLR 1454 for discussion of the interpretation of ss 1(1) and 5(3) of the Sex Discrimination Act 1975, implementing (imperfectly) Article 2(1) of Directive 76/207/EEC.

20 Amicus v Secretary of State for Trade and Industry [2004] EWHC 860.

21 Joint Committee on Human Rights, Legislative Scrutiny: Equality Bill (second report) (2010), HL Paper 73; HC 425, paras 1(3)–1(12).

22 The Committee also discussed Schedule 9, para 2(8): ‘employment… for the purposes of an organised religion’.

23 Amicus at paras 115 and 122.

24 Joint Committee on Human Rights, Equality Bill, para 1(11).

25 Ibid, para 1(7).

26 Marleasing SA v La Comercial Internacional de Alimentacion SA (1990) C-106/89 [1990] ECR I-4135.

27 Francovich v Italy (1990) Case C-6/90 and Case C-9/90; [1991] ECR I-5375.

28 Church of England, ‘Women bishops’, <http://www.churchofengland.org/our-views/women-bishops.aspx>, accessed 26 January 2013.

29 ‘Clergy leavers (and subsequent re-entrants) under the ordination of women legislation’, archived at <http://web.archive.org/web/20080704210520/http://www.cofe.anglican.org/info/statistics/churchstats2003/leaversowl.pdf>, accessed 12 February 2013.

30 A Arco, ‘Five Anglo-Catholic bishops resign’, Catholic Herald, 8 November 2010, <http://www.catholicherald.co.uk/news/2010/11/08/five-anglo-catholic-bishops-resign/>, accessed 3 February 2013.

31 Section 2 constituted part of the transitional provisions so that a (diocesan, not suffragan) bishop in post at the time was not required to have women in his diocese. Although it is in force, its practical effect in now nil as no diocesan bishop in post at the time remains in post now. In practice, bishops unwilling to ordain women have found commissaries to do so. A bishop unwilling to ordain women may still permit, institute or license women clergy.

32 Since repealed by The Employment Equality (Sex Discrimination) Regulations 2005. Exceptions are now found in Schedule 9 of the Equality Act.

33 See Burnham, A, ‘The work of provincial episcopal visitors’, in Baker, J (ed), Consecrated Women? (Norwich, 2004), pp 199200, for a discussion of ‘taint’.

34 Implying that the decision may be wrong: Bagilhole, B, ‘Prospects for change? Structural, cultural and action dimensions of the careers of pioneer women priests in the Church of England’, (2003) 10 Gender, Work and Organization 363.

35 Bagilhole, ‘Prospects for change?’, p 363.

36 The other sections comprise interpretation and amendments to existing legislation.

37 Ingraham, C, ‘The heterosexual imaginary: feminist sociology and theories of gender’, in Seidman, S (ed), Queer Theory/Sociology (Oxford, 1996), p 173.

38 Weeks, J, Sexuality (second edition, Abingdon, 2003), p 37.

39 Jackson, Heterosexuality in Question, p 163.

40 We prefer this as an overarching term instead of Jackson's ‘heterosexuality’.

41 See Clucas, ‘Religion, sexual orientation and the Equality Act 2010’.

42 Jackson, Heterosexuality in Question, p 131.

43 Emphasis added.

45 Emphasis added.

46 The Catholic Group in the General Synod, ‘Women bishops: moving forward – together’ <http://www.forwardinfaith.com/news/docs/wbd-cgigs.pdf>, accessed 5 November 2012.

47 See Hill, M, ‘Editorial: a measure of credibility?’, (2013) 15 Ecc LJ 13.

48 ‘Campaigners talk of betrayal and disaster after vote’, Church Times, 23 November 2012, <http://www.churchtimes.co.uk/articles/2012/23-november/news/uk/campaigners-talk-of-betrayal-and-disaster-after-vote>, accessed 3 February 2013.

49 Quoted in L Davies, ‘Church of England votes against allowing women bishops’, The Guardian, 21 November 2012, <http://www.guardian.co.uk/world/2012/nov/20/church-of-england-no-women-bishops>, accessed 3 February 2013.

50 Quoted in J Taylor, ‘Church of England in crisis: Archbishop of Canterbury attacks members for voting against women bishops’, The Independent, 21 November 2012, <http://www.independent.co.uk/news/uk/home-news/church-of-england-in-crisis-archbishop-of-canterbury-attacks-members-for-voting-against-women-bishops-8339611.html>, accessed 3 February 2013.

51 L Winkett, ‘The vote against women bishops is a disaster for the church I love’, The Guardian, 20 November 2012, <http://www.guardian.co.uk/commentisfree/2012/nov/20/women-bishops-vote-disaster-church-of-england>, accessed 3 February 2013.

52 G Paflin, E Thornton, M Davies and G Drake, ‘Special report on the fall of the women-bishops legislation’, Church Times, 30 November 2012, p 22.

53 ‘Statement from the House of Bishops on defeat of women bishops legislation’, 11 December 2012, <http://www.churchofengland.org/media-centre/news/2012/12/statement-from-the-house-of-bishops-on-defeat-of-women-bishops-legislation.aspx>, accessed 3 February 2013.

54 ‘MPs will ignore “deluded” Church over gay marriage, says MP’, Huffington Post, 22 November 2012, <http://www.huffingtonpost.co.uk/2012/11/22/mps-will-ignore-deluded-church-gay-marriage_n_2175557.html>, accessed 3 February 2013; ‘Church of England should allow female bishops, says Cameron’, The Guardian, 21 November 2012 <http://www.guardian.co.uk/world/video/2012/nov/21/church-female-bishops-cameron-video>, accessed 3 February 2013; A Edemariam and L Davies, ‘Pressure piles on Church to vote again on women bishops’, The Guardian, 23 November 2012, <http://www.guardian.co.uk/world/2012/nov/23/maria-miller-church-female-bishops>, accessed 3 February 2013; Taylor, ‘Church of England in crisis’.

55 H Goodman, ‘Women bishops: Church is being held to ransom by backward-looking minority’, Daily Telegraph, 21 November 2012, <http://www.telegraph.co.uk/women/womens-life/9692489/Women-bishops-Church-is-being-held-to-ransom-by-backward-looking-minority.html>, accessed 3 February 2013.

56 Church Times, 30 November 2012, p 4.

57 Taylor, ‘Church of England in crisis’; ‘Editorial: female bishops – embarrassing bodies’, The Guardian, 21 November 2012 <http://www.guardian.co.uk/commentisfree/2012/nov/21/female-bishops-embarrassing-bodies?CMP=twt_fd>, accessed 3 February 2013.

58 ‘A terrible failure: the Church of England's vote against women bishops does a disservice to half the population’, The Times, 21 November 2012.

59 Letters, The Independent, 22 November 2012.

60 A Bartley, Church Times, 14 December 2012.

61 C Whitmey, Church Times, 30 November 2012.

62 Clucas, ‘Religion, sexual orientation and the Equality Act 2010’, p 945.

63 See the Equality Act discussion above.

64 Women Bishops in the Church of England? A report of the House of Bishops' Working Party on Women in the Episcopate (London, 2004), para 1.1.2.

65 Following the interim report of the Pilling group, the House of Bishops has since decided to allow celibate civil-partnered priests to become bishops: ‘House of Bishops: summary of decisions published’, 20 December 2012, <http://www.churchofengland.org/media-centre/news/2012/12/house-of-bishops-summary-of-decisions-published.aspx>, accessed 5 February 2013.

66 Clucas, ‘Religion, sexual orientation and the Equality Act 2010’, p 947.

67 A concern that Redfern and Aune suggest is well founded: Redfern, C and Aune, K, Reclaiming the F Word (London, 2010), pp 153–154.

68 Quoted in ‘Campaigners talk of betrayal and disaster after vote’.

69 Woodiwiss, Human Rights, p 5.

1 We thank those who have contributed to our thinking in various ways, especially Pete Palumbo and Matthew Waites. We are grateful to the colleagues who commented on earlier versions of this article (often at short notice), fellow trustees of Changing Attitude England, and the anonymous reviewers for their constructive comments.

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Ecclesiastical Law Journal
  • ISSN: 0956-618X
  • EISSN: 1751-8539
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