Out for the count
For a piece of legislation that makes no mention of teachers, section 28 of the 1988 Local Government Act has had an enormous effect on their dealings with pupils. Rushed through Parliament in the late Eighties - a time when so-called "loony left" authorities were supposedly encouraging young people to take up alternative lifestyles - section 28 stops local authorities from intentionally promoting homosexuality and from promoting the teaching of homosexuality as a "pretended family relationship" in maintained schools.
Although the present Government, which has promised to repeal the clause, stresses that it does not apply directly to individual teachers, many believe it does. Playing It Safe, a 1997 study by London university's Institute of Education, found that 82 per cent of teachers surveyed considered section 28 confusing, while 56 per cent said it made meeting the needs of gay, lesbian or bisexual pupils difficult.
As the head of one personal and social education department told the institute's researchers: "We look after everybody else's special needs of one sort and another and I think we ignore these needs."
It is not surprising that teachers are confused about whether they can tackle homophobic bullying or counsel pupils about their sexuality. No legal action has ever been brought against anyone under section 28, so the courts have had no chance to establish what "promoting homosexuality" actually means.
"It is an ambiguous phrase that has led to some self-censorship about what may or may not be said on the subject of homosexuality," says Olwyn Gunn, equal opportunities secretary at the National Union of School Masters Union of Women Teachers. "It has also led to some schools finding it difficult to challenge discriminatory and abusive behaviour and to develop policies to challenge that sort of behaviour."
Stonewall, the gay rights lobbying group, says section 28 has discouraged many local education authorities from producing guidelines to help individual schools and teachers deal with homophobic bullying or to answer pupils' questions about homosexuality. Some of the authorities that have issued guidlines have done so only recently, more than a decade after the legislation came into force.
Yet the education reforms of recent years mean education authorities probably have as little to fear from section 28 as individual teachers. Governing bodies are now responsible for what is taught in schools, and local authorities are no longer in a position to promote the teaching of homosexuality - or anything else. And since governors have never been covered by section 28, they have no cause to worry about it, even if they decide to stock the school library with copies of Jenny Lives with Eric and Martin - one of the sex education books that prompted Parliament to pass the 1988 legislation.
Manchester city council issued a booklet with guidelines on section 28 as far back as 1992. This declares that the council believes in "promoting equal treatment for all, including lesbians and gay men. Such work is not 'promoting homosexuality' as defined by section 28."
More recently, Bristol city council produced similar guidelines after a survey of adults in the city found that many young homosexuals had experienced discrimination and abuse while attending local schools. Misunderstandings of the restrictions of section 28 were partly to blame, says the council.
Both the Bristol and Manchester guidelines explain that section 28 does not prevent discussion of homosexuality in the classroom or stop teachers from counselling pupils who are concerned about their sexuality.
The guidelines also point out that some young people are brought up in gay or lesbian households, and urge that teachers make sure all pupils' home circumstances are valued. They go on to say that nothing in the law prevents teachers from being open about their own sexuality "if that is the natural thing to do" to foster a relationship of honesty and trust with pupils.
Nor should teachers feel inhibited about using books and other materials with lesbian and gay themes, when appropriate. As the Bristol guidelines put it: "Teachers are not prevented from integrating lesbian and gay examples into their teaching, nor from discussing homosexuality when it arises naturally (for example, when reading the plays of Oscar Wilde, or talking about the characters in EastEnders, Emmerdale and other soaps).