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5th August, 2013

Court of Appeal rules that sexual orientation trumps religious justification


In the recent decision of Black & Anor v Wilkinson [2013] EWCA Civ 820, a Christian hotelier, Mrs Wilkinson, denied a homosexual couple accommodation on the grounds that she claimed her religion could not tolerate the sharing of a double-bedroom by homosexual couples. More specifically, she preferred unmarried couples not to share bedrooms. Her policy for accepting bookings reads as follows:

“Because I am a Christian, I believe that monogamous heterosexual marriage is the form of partnership uniquely intended for sexual relations between persons and that homosexual sexual relations (as opposed to homosexual orientation) and heterosexual sexual relations outside marriage are wrong. Therefore since I started the business, I have sought to restrict the sharing of the double rooms to heterosexual, preferably married couples” [para 3].

The couple claimed direct and indirect discrimination on the grounds of sexual orientation under regulation 4 (1) of the Equality Act (Sexual Orientation) Regulations of 2007 (“the Regulations”) (which has since been repealed by the Equality Act 2010) and compensation for injury to feelings. The Regulations made it unlawful for a person providing services to the public to discriminate against an individual seeking to obtain those services on the grounds of their sexual orientation by refusing to serve them. Slough County Court held that they had been unlawfully discriminated against.

The defendant appealed to the Court of Appeal, claiming that her rights under the European Convention on Human Rights had been infringed; specifically article 8 (the right to respect for her private life and family life) and article 9 (her right to freedom of thought, conscience and religion; including the freedom to manifest her religion or belief). The Court of Appeal said that the issue of proportionality involved balancing her rights under articles 8 and 9 of the European Convention on Human Rights against the claimants’ rights under article 8 and 14 not to be discriminated against on the grounds of their sexual orientation. The claimants’ claims were upheld by the Court of Appeal.

It can be said that the determination in this case became a question of which right triumphed: the right to practice religious beliefs or the right to equal treatment. The Judge concluded that the decision of the County Courts did not prevent the defendant manifesting her religion. It was held that by entering into a public commercial business, she had to accept the public as they were. Further, they would not have suffered significant damage by allowing homosexual couples to share a bedroom. However it was acknowledged that priority may be given to religious beliefs on certain occasions. The court highlighted that any case involving potential human rights issues is always unique and turns on the specific facts.

There is the possibility that both appeals will now be taken to the Supreme Court and we await the outcome. For further advice or information on managing discrimination issues within your business please contact Claire Brook on 01244 405575 or send an email to [email protected].

 



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