"The Employment Equality (Sexual Orientation) Regulations 2003 will introduce for the first time in UK employment law a direct right not to be discriminated against on the grounds of sexual orientation. This article argues that sexual orientation is somewhat different from other forms of prohibited discrimination, as it is an intensely private characteristic that is not obvious to an outside observer. This initially appears to be recognised in the Regulations, particularly through the treatment of perceptions of sexual orientation, but an examination of the general exception for a ‘genuine occupational requirement' exposes internal contradictions in the new law. Consideration of the Human Rights Act and Canadian law suggests that this exception should be interpreted narrowly and therefore rarely used. However, the very existence of the exception undermines the principle that sexual orientation can be kept private, and the ability of employers to use their own perceptions of sexual orientation appears to allow stereotypical assumptions to be used to deny employment. In addition, no account has been taken of the fact that sexual orientation is a fluid concept that may not be capable of precise definition. These contradictions show that the Regulations have not, in fact, recognised some of the unique and key aspects of sexual orientation as a protected characteristic, and this problem is attributed in part to the uniform approach that is being adopted towards different forms of discrimination."

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