London, 6 December 2013
On 27 November 2013, the UK Supreme Court issued its judgment in Bull and Another v Hall and Another, in which it ruled on whether Christian hotel owners discriminated against homosexual civil partners through a policy to only let double rooms to “heterosexual married couples”. In a decision which robustly defends the rights of same-sex couples to equal access to goods, facilities and services, the Court held that the policy directly discriminated against civil partners whose status, aside from their sexual orientation, was indistinguishable from that of married couples.
Mr and Mrs Bull (the Appellants) are Christians who own and run a hotel in Cornwall. Mr Hall and Mr Preddy (the Respondents) are civil partners. In the UK, civil partnership is a legal status available to same-sex couples which was introduced in 2004 in order to accord them the same legal rights as married couples at a time when marriage was only available to opposite-sex couples. In 2008, the Respondents booked a double room at the Appellants’ hotel. The Appellants believe that sex other than between a man and woman who are married to each other is sinful and their hotel policy stipulated that “out of a deep regard for marriage” double rooms were to be let only to “heterosexual married couples”. On arrival at the hotel, the policy was explained to the Respondents who were turned away.
The Respondents claimed that the Appellants had discriminated against them on grounds of their sexual orientation in violation of the then applicable Equality Act (Sexual Orientation) Regulations 2007 (the Regulations). The Appellants denied this, arguing that the UK’s discrimination law must be applied so as to be compatible with their right to manifest their religion under Article 9 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). The county court held that the Appellants had directly discriminated against the Respondents and found that, even if that had not been the case, the policy would amount to indirect discrimination without justification. It awarded the Respondents £1,800 each for injury to feelings. The Court of Appeal upheld this decision. The Appellants appealed.
The Supreme Court unanimously dismissed the appeal. By a 3-2 majority it agreed with the earlier courts that the policy was unlawful direct discrimination. The majority, albeit with differing reasoning, held that civil partnership is equivalent to marriage under UK law and that this is emphasised in the Regulations. Distinguishing between civil partners and married couples in the present case amounted to direct discrimination on grounds of sexual orientation. Furthermore, it was clear that the Appellants would also refuse to provide a double room to same-sex married couples (e.g. those coming from countries where same-sex marriage was legal).
However, even if this were not direct discrimination, the Court unanimously agreed that the policy would amount to indirect discrimination as it put same-sex couples, who could not enter a marriage in the UK, at a serious disadvantage. Although the Appellants had a right to manifest their religious beliefs, that right could not justify the indirect discrimination in this case. The Appellants were free to manifest their beliefs in many other ways, including by not providing double rooms to married couples either. Parliament had clearly considered the importance of providing equal access to goods and services regardless of sexual orientation and had chosen to give only a limited exception to “religious organisations” but not religious individuals providing goods and services. To find otherwise would be to exempt a whole class of persons from the obligations of discrimination law. This same analysis explained why, as a matter of human rights law, the Appellants’ right to manifest their religious belief under Article 9 ECHR had been lawfully limited under Article 9(2) ECHR.
ERT welcomes the Supreme Court’s finding that the policy amounted to direct discrimination on grounds of sexual orientation. It is important to understand that, as civil partners in the UK have an equivalent legal status to married persons, the protected characteristic that has caused the less favourable treatment is indeed sexual orientation, rather than marital status. Whilst it is important to ensure religious freedom, this does not extend to permitting service providers to manifest their religion in the provision of their services in a way which discriminates against service users on grounds of their sexual orientation.
To read ERT’s case summary click here
To read the Supreme Court judgment click here
