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Thursday, 20 January, 2000, 11:03 GMT
Section 28: Your questions answered

Controversy has raged around the Scottish Executive's plans to repeal the law which prohibits the promotion of homosexuality by local authorities. Scotland repealed Section 28 in June and similar moves are being made in England and Wales.

Many questions have been raised in the debate: "What, if anything, will be put in the place of Section 28? What exactly will be taught in schools if, as planned, the law is changed?"

In January BBC Scotland's education correspondent Ken Macdonald answered your questions - with particular reference to the situation in Scotland.

At the foot of this page you will find the precise wording of the law as it stands. Click here to read.

Q:I am a Religious and Moral Education teacher in Scotland. I have occasionally taught about homosexuality - briefly in Standard Grade as a small part of the units on Christian and Islamic attitudes to sex, maybe one or two lessons in 'Core' RME for S4 and, under the old Higher curriculum, I occasionally guided pupils writing 'Studies in Depth' on religion and morality.

I have never felt constrained by Clause 28 in any way. I don't promote much at all, except the educational principles for which I am employed - that it's a good idea to know about and understand all sorts of people and traditions, to have your own views and to behave with consideration towards those whose opinions differ from yours.

The clause is very badly drafted as was pointed out at the time of the legislation being passed: "... promote ... as a pretended.." for goodness sake!

I suspect that the role of this clause in the debate about human sexuality is largely totemic. The Tories passed it as a sop to the baying popular press, knowing that no one would ever be prosecuted and relying on their "liberal" opponents to howl with such outrage that the public would be deceived into thinking an effective clamp down had been imposed.

Now of course the liberals, who really fell for it and have nurtured a hatred of the clause out of all proportion to the harm done, want to waste parliamentary time by repealing the offensive but ineffective item.

Worse, they have managed to stir up a too, too predictable hornet's nest which will not help the cause of tolerance one bit.

Incidentally I am myself no "liberal" and my personal views on sexuality are broadly in line with conservative versions of Christianity but neither is it my job to promote those opinions over any other.

I am puzzled by the outraged but ignorant folk who have claimed that we teachers are gagged by this daft law - so far from being an important guide to our delivery of the curriculum is Clause 28 that most of my colleagues, I suspect, were actually ignorant of its terms.

I would suggest that anyone in the profession who claims to have been gagged in this way is guilty of ridiculous and insincere posturing.

A ridiculous clause defending us against a non-existent threat - worth repealing? Don't waste my time! Iain Parkinson, Edinburgh

Ken: It's good to hear from a practitioner who has experience of the section in action, or inaction as the case may be.

You appear to reflect the experience of most Scottish teachers: in the everyday classroom situation, homosexuality hardly figures as an issue and Section 28 not at all.

Whether that proves that this debate is purely "totemic" or - as others might like to say - on a point of principle is not for me to judge.

But it is worth pointing out that the pro-repeal side have always stated one of their main reasons for wanting abolition is that it's a redundant piece of legislation.

Meanwhile the pro-Section 28 campaign have produced as part of their case a set of government guidelines saying much the same thing.

So on this point at least there is something like agreement. I wouldn't hold out much hope of it spreading, though.

Q: Despite this raging controversy over the notorious Section 28 between the general public, church authorities and parliamentary figures, whatever will happen, it will be young people whose entire education system methods will be disrupted by lots of people to whom it probably wouldn't matter.

Schoolchildren are being caught in between this debate when they should be taking part and having their say in the matter as the young Scottish Parliament promises seem to fade from reality as the debate hots up.

I am only 11 and I am concerned about this issue. Why should be disregarded as unfit to take part in Scotland's future? If anything we should be the front people in this discussion. Iona Bain, Edinburgh

A: It's a common problem with the way the media covers education. We talk to parents, teachers and local and national government and imagine we have covered all the bases.

But the real stakeholders in education are the pupils. Here's your forum. What do you think?

Q: Q: Donald Dewar and Mrs Alexander are adamant that Section 28 will be repealed no matter what the public opinion.

Why hasn't this issue been put to a vote and why haven't I, as a UK citizen, been asked my opinion? Dr. K. Seunarine, UK

A: It would be a foolish politician who would do anything without regard to public opinion. The reality of devolved democracy is that if you live in Scotland, you've had your vote - for the Scottish Parliament.

It is Holyrood, not the executive, which has the power to repeal legislation - and because MSPs have been elected using a system of proportional legislation, no one party has an overall majority in the chamber.

But as for everyone having a vote on this issue? We don't live in Switzerland - here in the UK politicians tend to use referendums more sparingly; cynics might say only when they know they'll win.

But of course voters have the ultimate right of sanction at subsequent elections.

Q: My wife and I are strongly opposed to our children being "taught" about homosexuality.

In the unthinkable event of the proposed changes becoming reality, we would like to know what avenues are open for us, as parents, to prevent teachers from instructing our children in the classroom, about homosexuality?

Surely, the government cannot impose a curriculum on children when their parents have more appropriate avenues of enlightenment and education within the family group and the church? Mark and Susan Pollock, UK

A: In practice there's very little specific reference to homosexuality in the curriculum where it relates to personal, social and health education.

But it may crop up in pupils' questions or in areas like religious and moral education. The best schools will advise parents about courses which will touch on such subjects and seek their feedback.

Parent teacher councils and school boards - where they exist - will also have an input in this process.

But it depends what you mean by being "taught" about homosexuality.

  • That it exists, yes.
  • That it raises moral questions, yes.
  • That it creates personal health issues, yes.
  • How to do it? No chance.
The bottom line is that good schools listen to the views and concerns of parents. And there are a lot of good schools out there.

The following series of questions were submitted by ARM, Edinburgh

Q: Why does the Scottish Executive wish to repeal Section 28

A: They say it's redundant legislation which serves no purpose other than to discriminate against homosexuals.

Q: Has it caused problems in schools?

A: In classroom lessons, not a lot. Homosexuality is hardly touched upon in formal courses - it's much more likely to raised by pupils than teachers.

Q: Are teachers unhappy with it?

A: Most teachers appear to be. Originally the objection was to the principle. More recently they've voiced concerns that Section 28 - and in particular the uncertainty over its terms - makes them in turn unsure about how to respond to questions raised by pupils.

Some also say it restrains them from helping young people cope with their emerging sexuality and/or homophobic bullying. Q: Are parents unhappy with it?

A: The executive says its consultations show 75% of the public are in favour of repeal. Whether that's an accurate representation of parents' views remains unknown. The debate's rarely raised its head between the debate over the legislation in 1988 and now the debate over its proposed repeal.

Q: What risk are children exposed to by the removal of Section 28?

A: That's the heart of this debate. Supporters of the current law say it'll open the way to "gay sex lessons in the classroom", as the headlines would have it. Proponents of repeal say it'll have no effect on everyday lessons - and serve only to end discrimination against a vulnerable minority.

Q: Is there a risk that teachers - presumably homosexual - would have licence to promote (encourage) homosexuality as an alternative lifestyle?

A: Of course there's always such a risk. But no such teacher would last long: it would a major and severe breach of not just the curriculum but of their standards of professionalism. Whether the whistle was blown by a pupil, a parent, their head teacher or Her Majesty's Inspectors, their feet wouldn't touch the floor.

It's worth noting that other lessons may also touch upon the issues raised by drug addiction or the explosive properties of chemicals. There are no reports of teachers using these opportunities to promote shooting up or bomb making, despite the lack of legal provisions specifically outlawing such lessons.

Final question: Are homosexual people disabled and/or disfunctional? If so why shouldn't young people be made aware of the difficulties they and their parental families have to face? Social education on helping and understanding people who have physical and mental disabilities already exists. Where lies the difference?

A: The current curriculum certainly doesn't label homosexual people as disfunctional or disabled. But - as part of dealing with much wider issues of health, development and social and moral issues - teachers may find themselves having to deal with the issues raised by homosexuality and society's response to it.

Q: My six-year-old son asked me about gay people - I neither know nor care where he got the idea to do so. I answered that a minority of people prefer partners of the same sex to love and stay with.

I also pointed out that it is really a minority and that a lot of problems are faced by these people - that prejudice, their own experiences in life and their isolation and then, frequently their sudden liberation can result in some pretty strange behaviour, just as it can if you have other conditions that isolate you.

He replied - and where would babies come from otherwise?

My six-year-old seems to get it. I dont think I have turned him either into a homosexual or a gay-basher. Just gave him as far as I could the truth.

But, had I been a teacher, that would have been my answer regardless of 2A. Perhaps everyone should calm down and bear in mind that it is not the enactment, but the removal of a rule that is at issue.

And put their money back in their pockets before certain persons get involved in Scottish banking again.

The question is whether the issue is simply removal of 2A, or the enactment of something else?

Would my answer to my son be tolerated under a) the old law b) the new situation? Alexander Gardiner, UK

A: It is simply the removal of Section 2A - the Scottish legalisation which was introduced by Section 28.

There will be no replacement legislation, although the executive has repeatedly stated it will issue guidelines for teachers to coincide with repeal.

There are certainly no plans to promote homosexuality through the curriculum. And you're probably right about the "pretended family" reference, but without judges actually passing judgements in specific cases which would define the law we can't be sure.

Q: I am a gay male, 24, who believes that the repeal of Section 28 is the way forward for Scotland in the 21st century.

My reasons are that when I was a teenager at a Catholic School I felt that I was an outcast and anything that could be done to STOP one other person feeling this way then it is worth it. When I was 16 I even tried to kill myself because of the intolerance of others?

Now I am "out" to my parents and family and some at my workplace and the thing is now that now I AM a productive member of the community with a live.

My work in a large blue chip enviroment protects me from any discrimination, so why are schools different? M O'Malley, Glasgow

A: Your case would appear to support one of the arguments put forward by the pro-repeal lobby: Section 28 stops young people get the help they need in one of the places best suited to give it: school.

Of course the pro-Section 28 campaign flatly deny that - they say schools are perfectly free to give responsible advice at the moment and repeal will change nothing other than to expose them to danger.

Q: The guidelines that are in place now, when taken together with the professionalism of Scottish teachers, seem to stop porn and other inappropriate images becoming available in schools at the moment. What will change if section 28 is repealed? Keith Cowan, UK

A: Probably nothing. My reading of Section 28 suggests it wouldn't stop the distribution of pornography unless it was a teacher who was doing the distribution.

And even then it would only be homosexual porn, which as most netizens know is a very small part of the total out there.

If Section 28 went, any teacher up to that sort of thing would still be in breach of their own professional standards and would likely be developing their career in another profession ere long.

Q: What is Section 28 part of and why on earth did this Scotland Executive take it upon themselves to bring this to the fore at this time in a new parliament?

It would seem that this government is obsessed with sexual deviancy and wishes to inflict this view on society at large. It is time to say enough is enough is enough!

I am a father with a 15-year-old son and there has never been a time where our young folk have been bombarded through your medium with blatant sexual innuendo and perversion.

It is time the decent family minded folk in this land stood up and SAY an emphatic NO to the promotion of this Section 28 and similar. Our politicians are elected to run the nations affairs but not ensact statutes to be deeply damaging to young minds at a sensitive stage in their development.

I believe Mr Soutar and Cardinal ARE voicing the opinions of the decent folk in this land. The Scottish Executive should take a serious look at itself and rethink! John Fleming, Montrose

A: Research published in 1993 found that Scottish school pupils did not think they received adequate education on sexual matters.

It's worth noting that it also found they learned out what they did know from two main sources, neither of them the classroom.

These were their friends and the media. Neither source is noted for its 100% accuracy - and neither is subject to Section 28.

Q: If the repeal does get the go-ahead, will this be in the curriculum and, if so, how much will be taught to our children, will it be a formal part of sex education for example?

Or will teachers have the option to discuss homosexuality only if the moment requires ie: if a child is being bullied by other pupils because he/she thinks they're gay? Fiona Graham, Scotland

A: Many of those at the chalkface reckon repeal would have little or no practical effect on what's taught in our classrooms.

There's a widespread suspicion that Section 28 is so vaguely worded the Scottish courts would deem it unenforceable.

Personal and Social Development - the area of the curriculum which deals with issues like health and sex education - is clearly defined already and there are certainly no proposals to extend the currculum to "teach gay sex" as some of the more lurid accounts would have it.

But there are two areas of concern: one is when a teacher is responding to a question from a pupil: they might feel restrained by Section 28 because its terms are unclear.

What sort of answer would be breaking the law? No-one is sure. Section 28 is also a potential restriction on helping troubled young individuals, be they victims of homophobic bullying or children trying to come to terms with their own sexual orientation.

Q: I wonder how this clause, as enacted at school, affected the relationship between parents of teenagers and their offspring? (The offspring are usually well-aware of their own sexuality, and are not influenced by descriptions of different sexual orientation.)

I am aware of at least two gay schoolkids (they knew it themselves, independently, from early ages ... in my son's year at secondary) who were extremely worried about revealing their sexuality, (which is not "a choice" as some people would have you believe), to their parents for fear of hurting the parents.

This caused great anxiety to all concerned, and I believe that the merest indication that a long-term and happy relationship could be found which could be validated by society would have been a great help to all, especially the parents. This cannot happen under Clause 28.

Those parents would also probably, up to the point where the youngsters left home, be included in Cardinal Winning's commandeered "silent majority".

If the clause is not rejected, I fear that it may be a signal that a more discriminatory legislation could be encouraged under the "silent majority" mandate.

How does Clause 28 help prepare children for leaving school, and joining the working world?

The company I work for is North American, with a US-based Equal Opportunities and Ethical Policy, and if I referred to a co-worker, (who might be a homosexual), in a negative manner, I could find myself on a disciplinary action, or unemployed, in a short instant. Mike Klose, UK

A: Most of that's making a point and I can't take sides, but ... some might say that it's a strange law which means children are allowed to speak more freely in the playground than their teachers are in the classroom. But then maybe that's the way things have always been.

There is certainly a problem with unacceptable material entering some schools on the internet (in much the same way as earlier generations used schoolbags and blazer pockets) but it is by no means exclusively or even predominantly homosexual.

Critics of Section 28 question why homosexuality has been singled out.

Q: I know that Section 28 prohibits the promotion of homosexuality in schools, but what exactly does the legislation mean by "promotion"? Alan Willis, Dundee

A: A very good question and - like all good questions - one which brings forth no clear answer.

We don't know what "promotion" means because the term has never been tested in court. There has never been a prosecution on Section 28 on either side of the border.

We also don't know what "homosexuality as a pretended family relationship" means either.

Q: Why has the Scottish Executive got itself in such a muddle over Section 28? Malcolm McCandless, Dundee

A: That's definitely one for our political staff. But some observers look at it this way: this is a piece of legislation which - after its controversial passage into legislation - in 12 years has produced precisely no charges or prosecutions.

Had its repeal been included as part of a wider-ranging piece of legislation - rather than made the subject of a high-profile announcement - might it have passed into history relatively unremarked and unlamented? We'll never know.

Section 2A of the Local Government Act 1986 provides that a local authority shall not:

(a) intentionally promote homosexuality or publish material with the intention of promoting homosexuality;

(b) promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship.

(2) Nothing in subsection (1) above shall be taken to prohibit the doing of anything for the purpose of treating or preventing the spread of disease.

(3) In any proceedings in connection with the application of this section a court shall draw such inferences as to the intention of the local authority as may be reasonably be drawn from the evidence before it.

Section 2A was inserted into the 1986 Act by Section 28 of the Local Government Act 1988 and is more commonly known as Section 28 or Clause 28.

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See also:

17 Jan 00 | Scotland
Cardinal fires Section 28 broadside
16 Jan 00 | Scotland
Minister seeks gay law compromise
15 Jan 00 | Scotland
Caution over gay law cash offer
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