A lesbian teacher claiming to be the victim of sex discrimination after she was forced out of her job by a "sustained campaign" of homophobic abuse by pupils lost her House of Lords appeal yesterday.
The ruling means gay and lesbian workers will have to wait until the end of the year before they gain legal protection from harassment at work.
Shirley Pearce, 55, took her case to the law lords after employment tribunals and the Court of Appeal ruled that the abuse was motivated by her sexual orientation, not her gender, and was thus not covered by the Sex Discrimination Act.
Ms Pearce suffered abuse when children called her "lezzie shit" and "nasty dyke", but her claim for compensation was rejected.
Lords Nicholls, Hope, Hobhouse, Scott and Rodger unanimously dismissed her appeal. During the Lords hearing earlier this year, her counsel, Ben Emmerson QC, argued that the abuse, although aimed at her sexual orientation, also referred to her gender.
Ms Pearce worked as a science teacher at Mayfield School, Portsmouth, from 1975 to 1996, when she took early retirement on ground of ill health due to the abuse.
Her case was opposed by the school - represented by Cherie Booth QC - which denied it failed to take adequate steps to end the abuse and therefore, in effect, permitted it.
Lord Nicholls said in his judgment: "The disgraceful way she was treated by some of the pupils at the school was because of her sexual orientation, not her sex. Ms Pearce accepted that the children would have pursued a comparable campaign of harassment against a homosexual man."
The law lords also rejected an appeal brought by Roderick Macdonald, 38, who was dismissed from the Royal Air Force because he was homosexual. Mr Macdonald's case was that, on the ground of his sex, his employer treated him less favourably than it would have treated a woman.
But Lord Nicholls said: "To compare Mr Macdonald with a heterosexual woman is not to compare like with like. The appropriate comparator is a lesbian. She too would have been dismissed under the policy then prevailing ... So, Mr Macdonald did not receive less favourable treatment. As with sexual orientation, so with sexual harassment, the law is in the process of being changed. Here again, however, this change in the law will come too late to assist the appellants."
It was not for the courts to extend the ambit of the discrimination legislation, "however desirable this may seem, under the guise of interpretation of provisions which are unambiguously clear".
Lord Hope said: "The question which their cases raise is difficult and controversial but it is right to observe ... that the position which confronted homosexuals at the time of these events has now been greatly eased."
The proposed Employment Equality (Sexual Orientation) Regulations prohibit direct or indirect discrimination, including victimisation and harassment, on the ground of sexual orientation. They are to come into force later this year.
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