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Sex Discrimination in Macdonald and Pearce: Why the Law Lords Chose the Wrong Comparators

FOR AT least thirty years, academic commentators and litigants in the United States, Canada, and the United Kingdom have argued that almost all discrimination against lesbian, gay and bisexual individuals and same-sex couples is, if properly analysed, not only sexual orientation discrimination but also a form of sex discrimination.1 Yet, even though this “sex discrimination argument” is irrefutable as a matter of legal logic and social reality (if not specific legislative intent), the vast majority of judges who have considered it have rejected it. On 19 June 2003, in MacDonald v Advocate General for Scotland and Pearce v Governing Body of Mayfield School,2 five Law Lords joined this majority by holding unanimously that the dismissal of a gay member of the Royal Air Force (RAF), and a state school’s failure to deal with the harassment of a lesbian teacher by her students, did not breach the employment provisions of the Sex Discrimination Act 1975 (SDA). Were MacDonald and Pearce attempting to “abuse” the SDA? Was the Law Lords’ choice of comparators for identifying sex discrimination correct? If not, what explains judicial resistance to the sex discrimination argument? And is there any point in pursuing it in future cases?