The law says that religious organisations can discriminate on the basis of sexual orientation if their aim is to comply with their religious doctrine. However, the Court of Appeal held in R (on the application of Cornerstone (North East) Adoption Services Ltd) v Ofsted that it was direct discrimination on the ground of sexual orientation for the adoption agency to refuse to engage gay people as carers.


Basic facts

Cornerstone, an independent fostering agency (IFA), recruits and supports carers for children in local authority care. However, it requires all its carers to be heterosexual evangelical Christians who have signed a declaration that they will only engage in sexual conduct within Christian marriage and will abstain from “homosexual behaviour”. Ofsted, the statutory body responsible for regulating IFAs, took the view that this was contrary to the Equality Act 2010 (on the ground of sexual orientation) and the Human Rights Act 1998 (on the grounds of religion and belief).

The agency issued judicial review proceedings, seeking a declaration that Ofsted was wrong because of the exception in paragraph 2 of Schedule 23 of the Equality Act. This states that a religious organisation can apply a restriction based on religious belief or sexual orientation in order to comply with the doctrine of the organisation. However, the exception does not apply in the case of a sexual orientation restriction where the organisation is acting on behalf of a public authority under the terms of a contract.


High Court decision

The judge found that Cornerstone's recruitment policy was not discriminatory under the Equality Act on the ground of religious belief because of the exception in paragraph 2 of Schedule 23. Nor did the policy requiring carers to be evangelical Christians violate the Human Rights Act.

However, he then went on to hold that its policy of requiring applicants to refrain from homosexual behaviour “clearly, directly, and unambiguously” discriminated against non-heterosexuals under the Equality Act on the ground of sexual orientation. It was also indirectly discriminatory as it was not rationally connected to the objective that Cornerstone was trying to achieve, which was to increase the pool of evangelical Christian foster carers. Finally, he held that, by requiring applicants to be heterosexual, it unlawfully discriminated against gay men and lesbians under the Human Rights Act.

Cornerstone appealed, arguing that it was contradictory for the High Court to hold that it was entitled to limit its pool of carers to evangelical Christians but was not entitled to require them to subscribe to an important tenet of that faith – a ban on sexual conduct outside the bonds of a Christian marriage.


Court of Appeal decision

The Court of Appeal acknowledged that there was a certain logic to Cornerstone’s argument that if they were entitled to discriminate against non-evangelicals, then it should be entitled to discriminate against homosexuals as homosexuality was unacceptable to them as evangelicals.

However, the Court held that this logic contradicted the approach taken by Parliament which did not equate religious discrimination with sexual orientation discrimination. Instead, it had chosen to give priority to religious faith in a private context but to give priority to sexual orientation where public services were concerned. Otherwise, if Cornerstone’s argument was correct, it could take advantage of the parts of the legislation that protected it, while ignoring the parts that protected others.

The court therefore concluded that Cornerstone’s policy “which specifically requires carers not to engage in homosexual behaviour, is as clear an instance of direct discrimination ‘because of’ a protected characteristic as can be imagined”.

In relation to its aim of increasing the pool of evangelical Christian carers, the Court of Appeal held that Cornerstone had failed to provide convincing evidence that there was a national shortage of such carers. Had it done so, the outcome might have been different.



This is consistent with previous decisions which have found that a person’s individual religious or other beliefs do not allow that person to discriminate on the basis of another’s protected characteristic in the performance of a public service.