The Human Rights Act and Sexual Orientation Rights
Introduction
The legal rights of gay, lesbian and, to some extent, other queer sexual minorities within the UK have changed beyond recognition over recent decades. The Human Rights Act (HRA) 1998 has certainly played a noteworthy part in these developments, but its role in progressing sexual orientation rights in the UK should neither be exaggerated nor underestimated.
I therefore want to start this piece by setting out what the HRA is and what it is not. The HRA is not a ‘charter for gay rights’, mandating far-reaching reforms; it is a statute that protects certain fundamental rights set out in the European Convention on Human Rights (ECHR) and prohibits discrimination with respect to the enjoyment of those rights, protection that extends to discrimination on the grounds of sexual orientation.
The HRA did not newly introduce sexual orientation rights to the UK; the HRA ‘brings home’, and gives better effect to, rights contained in a treaty that has been in force for the UK since 1953. Neither does the HRA require the UK courts to unquestioningly follow the judgments of the European Court of Human Rights (ECtHR) in Strasbourg on sexual orientation rights; its carefully balanced architecture does, however, require UK courts to take ECtHR case-law into account in their decision-making.
In effect, the HRA’s important contribution is that it brings domestic courts into a dialogue with the ECtHR on shaping the scope of ECHR rights. Because, the ECtHR’s recognition of sexual orientation rights in Europe (and beyond) has developed pretty rapidly over the past forty years (developments impossible to even summarise here, but meticulously outlined in Homosexuality and the European Court of Human Rights), having an avenue for judicial dialogue over these developments that the UK courts can participate in is particularly significant.
The European Court of Human Rights’ Influence Prior to the Human Rights Act
Judgments from the ECtHR are binding upon the respondent State party. Therefore, even before the HRA, the ECtHR had a big impact on the scope of sexual orientation rights in the UK. While the ECtHR machinery might be criticised for being a bit slow to get off the ground, in its ground-breaking judgment of Dudgeon v UK (1981), the ECtHR held for the first time that legislation criminalising sexual relations between men in Northern Ireland violated the right to respect for private life. This case led the UK Government to extend the partial decriminalisation of male same-sex sexual acts to Northern Ireland under the Homosexual Offences (Northern Ireland) Order 1982.
Some years later, the European Commission of Human Rights’ decision in Sutherland v UK (1997) condemning another form of legislative discrimination ultimately led to the introduction of an equal age of consent for gay men (under the Sexual Offences (Amendment) Act of 2000). A later case that successfully challenged the prosecution of sexual activity between more than two consenting men in private under laws that did not apply to heterosexual acts, resulted in the introduction of neutral sexual offences law under the Sexual Offences Act 2003 (A.D.T v UK, 2000).
Asserting sexual orientation rights in the sphere of criminal law led the ECtHR to a more general and robust defence of the rights of sexual minorities. Smith and Grady v UK (1999), often referred to as the “gays in the military case”, together with Lustig-Prean and Beckett v UK, compelled the UK government to overturn the prohibition of gay men and women from serving in the armed forces, a prohibition that led to devastating and humiliating ends to distinguished careers for many men and women. The ECtHR reiterated that distinctions based on sexual orientation require particularly serious reasons by way of justification. The rights of same-sex couples to relationship recognition and wider family rights have also been increasingly recognised by the ECtHR as fundamental to individuals’ dignity and thus within the ECHR’s remit.
Enter the Human Rights Act
Enacting the HRA meant that the UK courts could play a part in shaping this shifting terrain of sexual orientation rights, rather than remain relatively passive in the face of societal and legal developments.
The opportunity for the UK courts to enter the discussion came early on, in the form of Ghaidan v Godin-Mendoza (2004). In this case, the House of Lords – able now to assess the validity of legislative provisions measured against ECHR rights - was tasked with interpreting a statutory provision that, on the face of it, excluded a surviving partner from an unmarried same-sex relationship from enjoying protected tenancy rights on the same basis that they would have had they been in an opposite-sex partnership. The question for the House of Lords under Section 3 of the HRA was whether the relevant statutory provision could be read down in order to protect the respondent’s Convention rights. In reaching the decision that it could be read down, the Law Lords referred to ECtHR discrimination case law, such as Fretté v France (2002), but their analysis articulates a rationale influenced by UK constitutional principles. Lord Nicholls argued:
"Discriminatory law undermines the rule of law because it is the antithesis of fairness. It brings the law into disrepute. It breeds resentment. It fosters an inequality of outlook which is demeaning alike to those unfairly benefited and those unfairly prejudiced."
Thus, the Ghaidan case saw the domestic courts actively participating in the on-going process of shaping sexual orientation rights, at once enhancing the protection of rights for sexual minorities and enabling the UK judges to bring their unique experience and perspective to the task. Legislative developments such as the Civil Partnership Act 2004 – introducing civil partnerships, initially for same-sex couples - and the Equality Act 2010 – with its sweeping prohibition of discrimination on the grounds of sexual orientation, amongst others - were a logical outcome of this robust judicial dialogue on discrimination.
After the Human Rights Act: Dialogue
The judicial communication opened up by the HRA is a two-way dialogue: the UK courts are empowered by the HRA to become part of the human rights conversation, and the ECtHR is, in turn, able to engage with, and respond to, those views. This dialogic exchange is illustrated in recent cases where religious freedoms and the rights of sexual minorities appear to conflict.
For example, in Ladele v UK (2013), the applicant was a Coptic Christian working for a local authority as a registrar. She argued that being compelled to participate in the administrative and ceremonial aspects of civil partnerships violated her right to religious freedom. The Employment Tribunal and Employed Appeal Tribunal disagreed on the appropriate balance to be struck under the HRA. Drawing on ECtHR case law on religious freedom, the Court of Appeal reiterated the importance with which discrimination on the grounds of sexual orientation should be approached. Ultimately, however, the Court of Appeal based its decision on the will of Parliament, which “has decided that the requirements of a modern liberal democracy, such as the United Kingdom, include outlawing discrimination in the provision of goods, facilities and services on grounds of sexual orientation, subject only to very limited exceptions”.
The Ladele case was taken to the ECtHR where the dialogue continued. The ECtHR referred to States’ margin of appreciation when determining whether an interference is necessary and the wide margin offered to States with respect to relationship recognition and in striking a balance between competing rights. Thus, the ECtHR left several key questions unaddressed. Disappointing though the ECtHR’s analysis was, it was perhaps the very fact that the UK courts had taken advantage of the opportunity to conduct a rights-based assessment and had asserted their view of the importance of sexual orientation rights that meant the ECtHR felt disinclined to intervene further in this particular case.
Conclusion: an on-going dialogue
The conversation between the UK courts and the ECtHR is an on-going one. The progress of this conversation is certainly not linear, and a continuous judicial and legislative recognition of greater sexual orientation rights is far from guaranteed by it.
Lee v UK, for example, is a pending case that concerns the somewhat notorious refusal of a bakery in Northern Ireland, on religious grounds, to complete an order for a cake with a “Support Gay Marriage” message. The UK’s Supreme Court held that the bakery’s objection in this case was to the “message and not to any particular person or persons”, and therefore their refusal in this instance did not constitute either direct or associative discrimination on the grounds of sexual orientation. Further, existing anti-discrimination laws should not be read in a way that requires providers of goods, facilities and services to express a message that conflicts with their religious beliefs. The ECtHR will now have the opportunity to reject the Supreme Court’s analysis of Convention rights should it choose to do so.
The HRA has enabled the UK courts to play an active role in shaping sexual orientation rights under the ECHR. The development of rights in this area has been fast-paced and is still a work in progress. While neither the ECtHR nor UK courts have consistently championed sexual orientation rights, placing them in conversation has helped to shape a judicial dialogue and legal culture that has greater potential to result more often to rights in action than inaction.
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