The British “gay cake case” has been every bit as controversial as Masterpiece Bakery, its transatlantic cousin. The Supreme Court recently reversed the decisions of both the first instance judge and the Court of Appeal, finding that Ashers Bakery had not unlawfully discriminated against Mr Gareth Lee in refusing to supply him with a bespoke Bert and Ernie cake, emblazoned with the slogan “Support Gay Marriage”. The litigation has divided opinion, not always along predictable lines, and for instance, unexpectedly, Peter Tatchell found himself speaking in defence of the rights of Ashers Bakery. No doubt the decision will provide plentiful fodder for legal commentators for some time to come, and in this blog we intend to explore just one of the wider issues which have emerged from the case: the question of what amounts to discrimination.
This is a subject on which gallons of ink have been spilt across books and articles, but one specific point emerges from the judgment given by Baroness Hale. It had been accepted by all sides that the bakery did not know for certain that Mr Lee was gay when they refused the order, and that they would have declined to make this particular cake for any other customer, hetero, bi or pansexual. Furthermore, they weren’t refusing to serve Mr Lee any cake, just this campaign-cake. Consequently, any discrimination was not based around any different treatment metered out because of Mr Lee’s sexual orientation, and the claim would have to be on the basis of discrimination by association, in other words, that Mr Lee was treated differently because of the sexual orientation of third parties (in this case, the bisexual and gay community at large).
Baroness Hale, in the leading judgment, which was given with the clarity, eloquence and assurance expected from her by the legal world, found however that there was insufficient link to justify this assessment, as this wasn’t a situation where the criterion being applied had a practical impact exclusively on a protected group. Classic examples of this phenomenon are James v Eastleigh Borough Council and, more recently, Preddy v Bull. In the first, people of statutory retirement age were given free access to the swimming pool, and as legislation set the age at 60 for women and 65 for men, males aged 60-64 were directly disadvantaged. In the second, only married couples were allowed to book double bedrooms, and because marriage was at the time only available to heterosexual couples, same sex people in civil partnerships were directly discriminated against. Baroness Hale pointed out the undeniable fact that plenty of straight people support gay marriage, and would also potentially benefit by its introduction (e.g. if they are the child of gay parents). She, therefore, concluded that it could not be said that discriminating against people who supported gay marriage was discrimination by association against gay people, because non-gay people fell into that category as well. Having said which, whilst the analysis up to this point is founded on flawless logic, it is unclear how or why A follows B when it comes to the next step, and there is also room for doubt about in the interpretation of case law.
Firstly, just because in James v Eastleigh BC and Preddy v Bull there was a complete overlap between the category of persons affected and the policy being applied, it cannot be categorically stated that this is a sine qua non for discrimination by association. Certainly, the Court of Appeal and Divisional Court did not imagine that there was such a requirement, and Baroness Hale did not advance any reasons why it should be so. Excluding this as a possibility effectively leaves a large loop-hole in protection in general terms, whatever the merits of the Ashers case.
Secondly, the Supreme Court expressed concern about what they perceived as too expansive an approach to discrimination by association, citing the majority in English v Thomas Sanderson Blinds in what could be interpreted as a critical way, whilst praising the dissenting opinion of Laws LJ. The facts concerned a man who was subjected to homophobic taunts by his workmates, even though they did not believe him to actually be gay. The majority of the Court concluded that the difference between a situation in which someone received homophobic abuse because they were erroneously perceived to be gay, and the present case, where a straight man was tormented because he was seen to be “like” a gay man was “barely perceptible” (per Sedley LJ para 38). The judgment given by Laws LJ, which Baroness Hale praised, disputed this, and advocated confining claims to situations where the harassment arose from a person’s actual or perceived sexual orientation.
We would respectfully argue the majority analysis given by Sedley LJ is greatly preferable. Firstly, in terms of individual protection, it would leave victims persecuted for perceived characteristics very vulnerable if their prejudiced tormenters could argue that they were aware all along of the absence of the characteristic in question. Why give wrong-doers a second bite of the defence cherry? Furthermore, if we, as a democratic society, have concluded that, for example, racist, religiously bigoted or homophobic abuse is unacceptable, and have enshrined this value in equality law, is then allowing this form of attack ever acceptable? What message is it sending if people can use protected characteristics as vehicles for bullying based on stereotypes, with apparent impunity, as there is no duty on employers and others to act unless someone actually possessing the characteristic is a target? If, for example, a person has some physical characteristics associated with a racial group, even though they are not a member of that group, and are known not to be a member, would belittling taunts and comparisons not still be racist?
One function of equality law is to draw a bright line around behaviour which we collectively have decided has no place in the public or employment sphere. Abusing someone ‘as though’ they were a gay man is harnessing a protected characteristic for deliberately harmful purpose, and it is perpetuating the message that gay men are lesser, comical or, at the bare minimum, conform to a certain image. What was taking place in the English case was homophobic bullying, both in terms of its impact on the direct victim, and also the wider social repercussions, and in our view, the Court of Appeal were wholly correct to categorise it as such. It is to be hoped that the obiter remarks of in Ashers will not lead to a different conclusion in future cases.