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In Pearce, a lesbian science teacher suffered from regular homophobic taunts and abuse by pupils at the school. She brought a claim against the school alleging breach of the Sex Discrimination Act 1975. She argued that the nature of the abuse she received was sex discrimination.
The Sex Discrimination Act does not generally protect male or female homosexuals against homophobic harassment or abuse, and the Tribunal found against Ms Pearce. On appeal to the EAT it was argued that in order to determine whether she has been treated less favourably on the grounds of sex, it was necessary to look at the precise nature of the abuse complained of and if the abuse was verbal then the precise words used. If the words are gender neutral, for example homophobic abuse using such words such as gay, queer or pervert then there is no sex discrimination, but only sexual orientation discrimination. But where gender specific language has been used it is possible to establish less favourable treatment on the grounds of sex.
Where gender specific abuse is used, such as lesbian or bugger such as in this case, the EAT said in establishing whether or not there was less favourable treatment as between a male and female homosexual, a Tribunal would have to consider whether the abusive comments in each case were similar. So if the gender specific words of homophobic abuse were of the same degree of offensiveness as the words that would be used against a gay person of the opposite sex, there will be no sex discrimination. The EAT considered that it was counterproductive to bend the law into something it was not.
But protection from discrimination on grounds of sexuality is set to improve when the Human Rights Act comes into force in October.