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2021

  • October 2021 : Digesting the ‘Support Gay Marriage’ cake case: three years on

Three years ago, the Supreme Court handed down its much-anticipated judgment in Lee (Respondent) v Ashers Baking Company Ltd and others (Appellants) (Northern Ireland) [2018] UKSC 49 (see details below). The bakery and its owners won their appeal, but this did not mark the end of the issue for Mr Lee. In April 2019, he lodged an application against the UK before the European Court of Human Rights (ECtHR), challenging the Supreme Court’s decision. Subsequently, in March 2020, the ECtHR communicated the case to the UK Government for its response (see Lee v The United Kingdom (communicated case) App no 18860/19 (ECtHR, 6 March 2020).

While the Supreme Court’s judgment has received extensive comment, there has been little coverage of Mr Lee’s complaint before the ECtHR. In anticipation of further developments in Lee v The United Kingdom, this post recaps the background, including the Supreme Court’s judgment, and sets out the ECtHR proceedings to date.

The background
Mr Lee, a gay man, associated with the organisation QueerSpace, placed an order with Ashers Baking Company Ltd in 2014 for a cake to be iced with a depiction of the characters Bert and Ernie from Sesame Street, the QueerSpace logo, and the message ‘Support Gay Marriage’. The Christian bakery owners, Mr and Mrs McArthur, refused to fulfil the order because of their religious belief that gay marriage is incompatible with Biblical teaching. Following this, Mr Lee brought an action for breach of statutory duty. He claimed that he had been discriminated against contrary to the provisions of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (the ‘2006 Regulations’) and The Fair Employment and Treatment (Northern Ireland) Order 1998 (the ‘1998 Order’) which prohibit direct or indirect discrimination on grounds of sexual orientation, political opinion or religious belief.

At the Belfast County Court, Mr Lee’s claim was successful. The District Judge held that the refusal to fulfil Mr Lee’s order constituted direct discrimination on grounds of sexual orientation and on grounds of religious belief or political opinion. When the bakery and the McArthurs appealed the decision to the Northern Ireland Court of Appeal, Mr Lee was successful once again because the Court of Appeal held that Mr Lee had suffered associative direct discrimination on the grounds of sexual orientation. The bakery and the McArthurs then appealed to the Supreme Court.

The Supreme Court’s judgment
In Lee v Ashers Baking Company Ltd and others (handed down on 10 October 2018), the Supreme Court reversed the decisions of the Belfast County Court and the Northern Ireland Court of Appeal. The Supreme Court unanimously held that there had been no discrimination on grounds of sexual orientation nor on grounds of religious belief or political opinion.

The Supreme Court found no discrimination in relation to sexual orientation because it held that the objection was to the message on the cake and not to Mr Lee or anyone with whom he associated. It noted that ‘[p]eople of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage. Support for gay marriage is not a proxy for any particular sexual orientation’ [25].

Similarly, in respect of the claim of discrimination on grounds of political opinion, the Court held that the objection was to being required to promote the message on the cake and not to ‘Mr Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage’ [47].

However, the Court did consider that there was a much closer association between the message and Mr Lee’s political opinions than between the message and his sexual orientation and, as such, it accepted that it could be argued that they were ‘indissociable’ for the purpose of direct discrimination on grounds of political opinion [48]. Consequently, the Court deemed it appropriate to consider the impact of the McArthurs’ rights under the European Convention on Human Rights (ECHR) on the meaning and effect of the 1998 Order.

The central issue for the Court was that the McArthurs had been asked to produce a cake bearing a message with which they deeply disagreed. The Court observed that ECHR Article 9 (the right to freedom of thought, conscience and religion) and Article 10 (the right to freedom of expression) protect individuals from being obliged to hold or manifest a religion or belief that they do not hold. This led the Court to conclude that the 1998 Order ‘should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree unless justification is shown for doing so’ [56], and no such justification had been shown in this case.

ECtHR proceedings to date
Mr Lee’s challenge to the Supreme Court’s judgment was set out by the ECtHR in Lee v The United Kingdom (published 23 March 2020). Before the ECtHR, Mr Lee complained that the decision by a public authority (namely, the Supreme Court) to dismiss his claim for breach of statutory duty due to discrimination contrary to the provisions of the 2006 Regulations and the 1998 Order, interfered with a number of his ECHR rights. He complained under ECHR Article 8 (right to respect for private and family life), Article 9, Article 10, and Article 14 (prohibition of discrimination) taken in conjunction with those Articles. He contended that the interference was disproportionate and that the Supreme Court had ignored the ‘democratically chosen resolution to the conflict of rights between religious organisations and persons of same-sex orientation, and those supporting the aspirations of such persons’.

On 6 March 2020, after setting out the statement of facts, the ECtHR put the following three main questions to the parties:
1. Has the applicant exhausted domestic remedies in respect of his complaints under ECHR Articles 8, 9, 10 and 14?
2. If so, has there been an interference with Mr Lee’s rights under Articles 8, 9 and 10 both alone and in conjunction with Article 14, and was that interference in accordance with the law and necessary in a democratic society?
3. In this context, what is the appropriate test to be applied in a case concerning a dispute of a “purely private nature”?

According to the lawyers acting for Mr Lee, the UK Government had until June 2020 to formally respond to the questions. To date, no updates on this case appear to have been provided by the ECtHR, but further developments are expected in due course. Considering the significance of Lee v Ashers Baking Company Ltd and others, it will certainly be interesting to see how Lee v The United Kingdom progresses.

Caroline K Roberts
  • June 2021: ‘Gender-critical’ beliefs and the Equality Act 2010

On 10th June, the Employment Appeal Tribunal (EAT) handed down its decision in Forstater v CGD Europe & Ors [2021] UKEAT/0105/20/JOJ, in which it held that a belief that sex is immutable is a philosophical belief protected under section 10 of the Equality Act 2010 (EqA). This judgment overturned an earlier judgment of the Employment Tribunal (ET) which had held that the belief in question was not protected by the EqA.

The EAT’s judgment has attracted considerable media attention. Despite the impression which may be gained from some of the coverage, the role of the EAT was not to express any views as to the merits of either side of the “transgender debate” [2]. From the outset, the EAT made it clear that the sole issue in the appeal was whether the ET had erred in law in reaching its decision.

Background
The claimant, Maya Forstater, holds the belief that “biological sex is real, important, immutable and not to be conflated with gender identity” [1]. She engaged in debates about gender identity issues on social media and made some statements which some trans people found offensive. Following complaints by some of her colleagues, the Centre for Global Development investigated and decided not to renew her visiting fellowship. Ms Forstater brought a claim before the ET complaining that she had been discriminated against because of her gender-critical beliefs.

One of the issues the ET deemed necessary to examine at a preliminary hearing was whether Ms Forstater’s belief could be considered a philosophical belief under the EqA. To qualify, a belief must satisfy the five criteria set out in paragraph 24 of Grainger plc v Nicholson [2010] ICR 360. The ET found that Ms Forstater’s belief met the first four tests but did not meet the fifth test that the belief “must be ‘worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others’” [23]. This was because the ET considered that Ms Forstater held an “absolutist” belief that sex is immutable and was committed to referring to “‘a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment’” [1]. Ms Forstater appealed the decision to the EAT.

The EAT Decision
The EAT held that, with respect to the application of the fifth test in Grainger, the ET had indeed erred in law. The EAT explained that only beliefs which would fall outside the scope of the right to freedom of thought, conscience and religion in Article 9 of the European Convention on Human Rights (ECHR) by virtue of Article 17 (which prohibits the use of the ECHR to destroy the rights of others) would fail to meet the fifth test. It observed that a belief needs only to satisfy some “very modest threshold requirements” [55 (d)] to be protected under Article 9 and explained that it is only extreme beliefs that would directly challenge Convention principles in a similar way to “pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society” [79].

The EAT considered that Ms Forstater’s belief was not the kind of belief which would warrant the application of ECHR Article 17; whilst it observed that it may be deemed “offensive and abhorrent” by some, it found that it was not a belief which sought “to destroy the rights of trans persons” [111]. Further, the EAT observed that gender-critical beliefs are shared by many, including some academics, and the view that sex is immutable is consistent with the law. Thus, the EAT held that “[o]n a proper application” of the fifth test in Grainger, the “only possible conclusion” was that the belief did fall within section 10, EqA [110].

In its conclusion, the EAT repeated that the “judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate” and it emphasised that the judgment does not mean “that those with gender-critical beliefs can ‘misgender’ trans persons with impunity” [118]. It stressed that Ms Forstater, like everyone else, continues to be subject to the prohibitions on discrimination and harassment under the EqA and trans persons continue to have the protections against discrimination and harassment conferred by this Act.

The EAT has now remitted the case to a new tribunal to determine whether the treatment about which Ms Forstater complains was because of, or related to, her belief.

Caroline K Roberts
  • April 2021: Religious Organisations and Anti-Racism

Last month, the Commission on Race and Ethnic Disparities published a report (Sewell Report), which concluded that Britain does not have institutional racism. The Report has significantly underplayed the damaging impacts of cultural and institutional manifestations of racism and sparked strong criticisms and debates. Its key findings and recommendations were seen as disturbing by some of the leading academics and charities including the Runnymede Trust, with some of the submitted evidence and scholarly works being misrepresented in the Report.

Black Lives Matter movement has shone a spotlight on Britain’s participation in the slave trade, its colonial heritage and its ongoing debates and failures to combat racial discrimination. Recent events, including the toppling of Colston Statue, have forced the Church of England to reassess its engagement with slave trade, with individual churches beginning to review their monuments, including Westminster Abbey and St Paul’s Cathedral. The Abbey and the Chapter of Bristol Cathedral have also announced changes to their heritage policies.

In September 2020, the archbishops of Canterbury and York set up the Anti-Racism Taskforce with the aim of recommending changes to ensure greater racial equality in the Church of England. The Taskforce reviewed recommendations made in previous reports by the Committee for Minority Ethnic Anglican Concerns relating to racial justice which had been presented previously to the General Synod of the Church of England. It put forward proposals to implement changes in the Church of England’s structures, systems and processes that were needed to tackle institutional racism.

On the 22 April, the national Stephen Lawrence Day, it published its report From Lament to Action proposing a series of recommendations to change culture in the life of the Church of England, such as the inclusion of minority ethnic representation in church governing bodies and a clear timetable given to the Church of England to stop racism. The report highlighted the lack of people from minority ethnic backgrounds in senior leadership in the Church and recommended new approaches to shortlisting and interviewing, including the general Synod co-opting 10 minority ethnic candidates (five clergy and five laity) for its next five-year term. For more information, please read the News Release, 22 April 2021. Full report is available here.

In a similar process of self-evaluation, the Board of Deputies of British Jews established the Commission on Racial Inclusivity in the Jewish Community, chaired by Stephen Bush. The Commission listened to various accounts from witnesses from different backgrounds, traditions and political views and published a report with over 100 recommendations on how to tackle racism. With black members of Jewish community coming forward with accounts of marginalisation and discrimination, the Commission called for Jewish bodies to have accessible, transparent, fair and robust processes for dealing with complaints relating to racism. Commission Chair Stephen Bush said that he hoped his ‘report will enhance communal life for Black Jews, Jews of Colour and Sephardi, Mizrahi and Yemenite Jews.’

Synagogues and Jewish venues are being urged to avoid racial profiling in security searches, for example by searching the bags of all visitors and not only Black members of Jewish community. Jewish schools should ensure that their secular curriculum engages with Black history, enslavement and the legacy of colonialism. Some of the other recommendations included visibility of Black Jews and Jews of colour in the Jewish media, the need for an inclusive attitude among rabbis, teachers, and religious leaders. Full report is available here.

Kathya Braginskaia

D 11 October 2021    ACaroline K Roberts AKatya Braginskaia

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