This week the House of Lords rejected the Government?s proposal to repeal the law which bans local authorities from promoting homosexuality. The professor of philosophy in the University of St Andrews analyses the issues at stake. THE public row over the proposal to repeal Section 28, which bans local authorities from promoting homosexuality, together with its corresponding clause 2(a) in Scottish legislation, has often been very unpleasant. Opportunities for proper debate abound, but instead of honest enquiry and careful reflection we get name-calling, misrepresentation, ignorance and confusion. We are in a mess ? not altogether hopeless but pretty close to that. When it comes to the discussion of serious matters of fundamental importance, we seem to have regressed to a condition of affluent barbarism.

Section 28 stipulates 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. This clause was introduced in 1988 as part of legislation intended to curb what were viewed as doctrinaire policies then being advanced, and in some cases implemented, by far-left activists in some Labour-controlled councils. The general legislation was contested by the parliamentary opposition, and the clause was viewed with some disquiet by others, but it was presented as part of a general block to policies for which the public certainly had no sympathy. Then, as now, the dominant social feeling was probably one of wishing not to know what people do in private so long as it is not contrary to the well-being or interests of others.

Current opponents of Section 28 divide into three broad groups. First, liberals who do not believe that it is the business of law either to promote or to prohibit behaviour on moral grounds. Second, advocates of alternative sexualities who insist that the state has a responsibility to encourage attitudes and actions favourable to these sexualities, not in the sense of teaching people to adopt them, but of teaching them to affirm or even to celebrate them. Third, moral conservatives who, while not favouring the neutral state, are unhappy about the way in which matters of sexual morality are now dealt with.

The actual scope of Section 28 has been widely misrepresented, not just by activist opponents but by presumably well-meaning commentators and politicians. Since the current row began and remains most heated in Scotland, let me quote from the relevant Scottish Office document which is conspicuously ignored by advocates of repeal.

The letter of guidance advising of the meaning and implications of the 1988 Local Government Act explains: Local authorities will not be prohibited by this section from offering the full range of their services to homosexuals, on the same basis as to all inhabitants of their areas. So long as they are not setting out to promote homosexuality they may, for example, include in their public libraries books and periodicals about homosexuality or written by homosexuals, and fund theatre and other arts events with homosexual themes. . . . Sex education will continue to be an element of social and health education in schools. Section 28 does not affect the activities of teachers. It will not prevent the objective discussion of homosexuality in the classroom or the counselling of pupils concerned about their sexuality.

Reading this it is hard to see how senior politicians, including the Prime Minister, can say that Section 28 prevents teachers from doing their job in educating children about sex and in protecting the vulnerable from bullying; or how commentators and prominent literary figures can write that the law means that access is denied to important modern classics which deal with homosexual themes. Of course, they may be ignorant of the law and the guidelines concerning its scope but then their comments are irresponsible if not disingenuous.

Even so, there is ground for complaint that the clause is discriminatory in singling out one particular sexual group. So far as public opinion is concerned, it is hard to suppose that those who maintain the moral superiority of heterosexual over homosexual activity would be happy to have local authorities promote sadomasochism or fetishism, for example, neither of which is mentioned. And if that is not so, then the charge of homophobia does indeed begin to look justified.

What is in fact the case is that most people do not want local authorities or schools to promote, recommend or celebrate any particular form of sexual activity. But they would, I suspect, be happy and indeed wish to see heterosexual marriage, or at least stable, domestic heterosexual family life presented as a desirable norm.

Clearly, though, this would be unacceptable to sexual radicals. Moreover, these will regard mere social toleration of homosexuality (or of other alternatives) as insufficient, noting (correctly) that toleration is compatible with moral disapproval. But the approval of the majority cannot be coerced, and it is evident that the majority do not regard all forms of sexual activity as equally valid. If pressed as to why they think this, they will usually speak in terms of what is normal or natural. Such replies are now regularly countered by the suggestion that while homosexuality or fetishism may be statistically abnormal, they occur in nature and hence cannot be objected to as unnatural. Whether by accident or design, however, such rejoinders confuse two senses of the terms involved. Normal may mean usual (i.e. according to a pattern), or it may mean conforming to an appropriate standard. Likewise natural may mean not artificial, or according to design or proper function. In each case it is the latter meaning that is intended by the critic of alternative sexualities, whose position is untouched by pointing out that these occur in nature. So too do inclinations to obsession and addiction, but that is hardly a basis for maintaining equivalence between these and the human norm.

Of course such reasoning is unlikely to persuade those who maintain the moral parity of all forms of sexual lifestyle. Against this background of fundamental moral disagreement the liberal idea of state neutrality may have some appeal, but morality does and should constrain the public sphere in so far as policies bear upon basic rights and interests. The state exists in part to promote the common good, and more fundamentally to protect its members from harm or injury to their interests arising from the actions of others. On this at least many moral conservatives and radicals are likely to agree.

How then to proceed? On the one hand, discrimination in law on the basis of private sexual practice cannot be justified. On the other hand, society has a right to expect its commonly shared interests to be protected, and these include the norm of heterosexual marriage, particularly as that bears upon the needs and formation of children. With that in mind, I commend the replacement for Section 28 composed by Lord Brightman, and supported by the Lords Quirk and Northbourne in this week?s Upper House debate: Subject to the general principle that the institution of marriage is to be supported, a local authority shall not encourage or publish material intended to encourage the adoption of any particular sexual lifestyle. This section does not prohibit the provision for young persons of sex education or counselling services on sexual behaviour and associated health risks. Would that the Government might think again, at leisure and more wisely.

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