The Wilkinson B&B Appeal

The full text of the appeal is available online. There are some interesting subtleties in the Justices’ ruling which are worth pointing out.

Firstly, on whether Preddy vs Bull (the Cornish B&B case) was direct discrimination or not.

Court21. I confess that I have some difficulty in agreeing with the view that the decision in James compels the conclusion that there was direct discrimination in Preddy. The point in James was that the council’s policy discriminated against men on the ground of their sex because it explicitly provided that the concession was not available to any men until they reached the age of 65. The policy that was being considered in Preddy discriminated against all unmarried couples. This would include heterosexual as well as homosexual couples. In my view, it is not material that homosexual couples cannot marry. Nor is it material that the inability to marry is “absolute” in relation to homosexuals, but not in relation to heterosexuals (to use the language of the Chancellor). In relation to a policy which discriminates against unmarried couples, the only thing that is material is whether a couple is married or not. It seems to me that the reason why they are not married is not material. In my view, Preddy was not a case of direct discrimination against a homosexual couple on the ground of their sexual orientation, since there were other unmarried couples who would also be denied accommodation on the ground that they too were unmarried. It was, however, a case of indirect discrimination because the defendants’ policy in that case put homosexual couples at a disadvantage compared with heterosexual couples on the ground of their sexual orientation. The former could not marry, whereas the latter could (which was the very reason given by the court in Preddy for holding that there was direct discrimination in that case).

It’s an interesting argument. The judge in the Cornish B&B case ruled that the policy of the Bulls to exclude unmarried couples from having a double bedroom was direct discrimination because homosexual couples couldn’t have a room and therefore the Bulls were directly discriminating against them. He did this on the basis of a previous case (“James”) where the argument was that you couldn’t treaty one 62 year old differently to another just because one was male and one was female. However, as the appeal judges in this case (Black and Morgan vs Wilkinson) point out, it cannot be direct discrimination in a similar manner to James against homosexual couples because a fair number of heterosexual couples were also excluded. It was (the Preddy vs Bull case) however still indirect discrimination because since two homosexuals cannot (at present) get married they could never comply with the criteria laid down by the Bulls (that couples sharing a double bed must be married). Indeed, the judge argues that this is also the case in the Wilkinson case.

I find support for this approach in the Judicial Committee of the Privy Council decision in Rodriguez v Minister of Housing and others [2009] UKPC 52, [2010] UKHRR 144. The appellant was the tenant of a government flat in Gibraltar where she lived with her same sex partner. They were unable to marry or enter into a civil partnership. If they were married, the appellant’s partner would have a statutory right to be granted a new tenancy of the flat when the appellant tenant died. The appellant applied to the statutory body responsible for the allocation of government housing for them to be granted a joint tenancy. The application was refused. The appellant applied unsuccessfully to the Supreme Court of Gibraltar inter alia for a declaration that the refusal was unlawful on the grounds of discrimination. Her appeal to the Privy Council was allowed.

It seems to me that Rodriguez was more in point than James. Accordingly, if I were free to do so, I would wish not to follow Preddy. Is there any basis for distinguishing Preddy? I do not consider that the fact that the claimants in that case were in a civil partnership, whereas the claimants in the present case are not, is a sound basis for distinction. In both Preddy and the present case, the policy under scrutiny was to exclude unmarried couples. The fact that the claimants in Preddy were in a civil partnership was not relevant to the decision. Indeed, the Chancellor expressly stated that regulation 3(4) was irrelevant to his decision. In my view, there is no difference between the essential facts in the two cases. I have reluctantly concluded that the Recorder was right to follow Preddy and hold that there was unlawful direct discrimination on the ground of sexual orientation in this case.

What the judge is saying is this – the Preddy vs Bull case was a case of direct discrimination, but not for the reasons that the Preddy judge laid out. Rather, the direct discrimination is simply on the grounds of refusing a homosexual couple a double bed, regardless of whether they could or could not be in a civil partnership. This same reasoning is then applied to the Wilkinson case.

The majority of the ruling is then taken up with the usual discussion of religious freedom vs equality rights. There is nothing really new in what is said.

Finally, towards the end we get a really interesting piece added by Lady Justice Arden.

67. The consequence of this analysis is that in my judgment that there must be something in the circumstances of the appellant’s case which gives her an exception when there would normally be no such exception. Running bed and breakfast accommodation in the normal way will not do. There must be some specific facts which mean that in the appellant’s case the Regulations do not strike a fair balance between her right to manifest her religious belief and the rights of the appellants under articles 8 and 14. Moreover, in the case of the latter rights, as the Master of the Rolls has said, convincing and weighty reasons are required to justify interference. This is consistent with the approach of Strasbourg jurisprudence to immutable characteristics such as race and sex. The requirement for convincing and weighty reasons affords added protection for a right.

Yes, you read that correctly. Immutable characteristics. That’s an interesting statement because whilst it is very clear that no-one, without any form of external assistance, has changed their sex or race, the academic research evidence is that people’s sexual orientation does change. We’re not talking here about any reparative therapy or the like, simply natural change over people’s lives regardless of external intervention. If that is the case, how can sexual orientation possibly be treated by the courts as an “immutable characteristic” in the same way as race or sex?

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  • Guglielmo Marinaro

    While it is doubtless true that SOME people’s sexual orientation does change, it is also clear that most people’s does not, whether or not they want it to.

    But the question of immutability is largely irrelevant in this context anyway, and should not therefore have been mentioned by Lady Justice Arden. If I were to be discriminated against because I am a Roman Catholic, that would be wrongful discrimination. It could not be justified by pointing out that, unlike race or sex, people’s religion does in fact change, and that it would be possible for me to become an Anglican, a Jehovah’s Witness, a Muslim or whatever. My point is not, of course, that sexual orientation is exactly analogous to religious affiliation, just that the wrongness of discrimination against someone on the grounds of a particular characteristic cannot depend on the immutability (actual or alleged) of that characteristic.

    • http://www.peter-ould.net Peter Ould

      I think you are right on the second point. On the first the evidence (especially with female sexual identity) is not so clear.

  • sheppied007

    With respect, all that the learned judge is saying is that:
    1) any State interference in support of a manifestation of belief that affects a person’s Article 8 and Article 14 rights requires convincing and weighty reasons;
    2) This approach to the protection of those rights for sexual orientation is consonant with the ECtHR’s approach to protecting immutable characteristics, such as race and sex.

    That does not mean that sexual orientation is considered immutable by law, only that European law deems it to deserve the same protection as those characteristics that are. The basis of that protection is not immutability. It is that, in law, the right to have a private life without incurring a difference in treatment is of equal value to the right to belong to a particular race or gender without incurring a difference in treatment.

  • Mike Homfray

    Its a case of people’s sexual orientation being considered worthy of equal treatment. The issues of cause for any sexuality are not part of the law’s concern.

    With this case, the passing into law of the Same-Sex Marriage Bill, to become an Act later this week, will make the argument linked to marriage redundant. In any case, the judges still couldn’t allow this appeal.

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