Ban on ‘ex-gay, post-gay and proud’ bus advert criticised but lawful
23 March 2013
Core Issues Trust v. Transport for London 22 March 2013  EWHC 651 (Admin) – read judgment.
In a judgment which is sure to provoke heated debate, the High Court has today ruled that the banning of an advert which read “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!” from appearing on London buses was handled very badly by Transport for London (“TfL”) but was not unlawful or in breach of the human rights of the group behind the advert.
The advert was placed in April 2012 by Anglican Mainstream, a Christian charity, on behalf of Core Issues Trust, another Christian charity which describes its aim as “supporting men and women with homosexual issues who voluntarily seek change in sexual preference and expression” (see website here). It was intended as a response to another advert placed on London buses earlier in 2012 by Stonewall, the gay rights campaign group, which was in support of the proposal to introduce same-sex marriage and read “SOME PEOPLE ARE GAY. GET OVER IT!”
The advert was cleared by the Committee on Advertising Practice (“CAP”) as being compliant with their code, but after receiving a large number of complaints about it (following a leak to the Guardian) TfL decided to stop the advert from being placed on its buses. Core Issues Trust brought an application for judicial review (Anglican Mainstream did not take part in the proceedings), claiming that this decision was irrational and breached their rights under Article 9 (freedom of religion and belief) and Article 10 (freedom of expression), read with Article 14 (anti-discrimination).
Mrs Justice Lang held that:
- On the evidence before her, the Mayor of London (Boris Johnson) did not abuse his position as Chair of TfL in order to advance his re-election campaign. Core Issues Trust had argued that the reason the advert was banned was because the Mayor disagreed with it and thought it would harm his prospects of being re-elected. Although Lang J held that Boris did influence TfL’s decision and had to be careful to avoid conflicts of interest, it was not established on the evidence that there was a conflict of interest on this occasion.
- TfL’s decision-making process was procedurally unfair, in breach of its own procedures, and demonstrated a failure to consider the relevant issues.
- Article 10(1) ECHR, which protects the right to freedom of expression, was engaged. TfL’s Advertising Policy was a justified and proportionate restriction on the right to freedom of expression. TfL’s decision to refuse to display the Trust’s advertisement was also justified and proportionate, in furtherance of the legitimate aim of protecting the rights of others. Therefore the refusal was not a breach of the Trust’s rights under Article 10(1).
- The fact that TfL had applied its Advertising Policy inconsistently (by banning the Core Issues Trust advert, but not the Stonewall advert or the earlier British Humanist Association ‘there’s probably no God’ bus adverts, which were both “highly offensive“) was outweighed by the countervailing factors against allowing the advertisement to run, namely:
- advertisements on the side of London buses are highly intrusive;
- the advertisement would cause grave offence to a significant section of the many inhabitants of London; and, for those who are gay, it was liable to interfere with the right to respect for their private and family life under Article 8(1);
- it was perceived as homophobic and thus increasing the risk of prejudice and homophobic attacks;
- it was not a contribution to a reasoned debate;
- leaflets, articles, meetings and the internet all provide an alternative vehicle for the expression of the Trust’s message;
- under the Equality Act 2010, TfL was under a duty to eliminate discrimination and harassment against gays and to “foster good relations” “tackle prejudice” and “promote understanding” between those who have same-sex orientation and those who do not. Displaying the advertisement would have been in breach of that duty.
- There was no breach of Article 14 ECHR (the right not to be discriminated against) and the Trust was not protected under the Equality Act 2010 because it was not an individual with sexual orientation and the individuals it represented (‘ex-gays’) are not a protected class of persons under the Equality Act.
- Article 9 ECHR (freedom to manifest religious beliefs) was not engaged because the Trust was not an individual, religious community or church.
- TfL’s decision could not be characterised as irrational.
This judgment is likely to be highly controversial, because it upholds a serious interference with freedom of expression and has done so in relation to such particularly sensitive topics as sexuality and religion. The prominent gay rights campaigner Peter Tatchell has already said that he thinks the High Court’s decision was wrong and undermines freedom of expression.
There are also several odd or noteworthy points in the judgment:
First, Lang J noted on several occasions that she had not been provided with any evidence about the Mayor’s response to TfL, commenting pointedly that the reasons for the decision being made so hastily to ban the advert “are not clear from the incomplete evidence before me, but might have been explained by the missing evidence from the Mayor’s Office“. It would have been interesting to see what conversations actually took place between TfL and the Mayor’s office.
Second, TfL argued that the ‘legitimate aim’ behind banning the advert under Article 10(2) was ‘the protection of morals’. Lang J held that this was not persuasive, but found instead that TfL’s real aim was to protect the rights of others, i.e. LGBT people who might be offended or upset by the advert. It is odd for TfL’s decision to be upheld as being in furtherance of an aim which it never actually mentioned itself.
Third, although she found that TfL were ‘inconsistent and partial’ by banning the Core Issues Trust advert but not the Stonewall (or British Humanist Association) adverts, Lang J held that because TfL banned the advert because of its content, rather than the identity of the Trust, Article 14 was not engaged. This is pretty unconvincing. The wording of the advert was specifically designed to mimic the Stonewall advert. The difference is that the Core Issues Trust advert conveyed the opinion that it is possible for a person to change their sexuality. Basically, TfL were worried about public reaction to the Trust’s opinions and beliefs. Article 14 prohibits discrimination on the ground of political or other opinion and also on the ground of religion. It is very difficult to see how the ‘content’ of the advert was distinct from the opinion or religious belief of the Trust.
Similarly, Lang J held that Article 9 was not engaged because the Trust was “seeking to express its perspective on a moral/sexual issue, not the manifestation of religious belief“. Again, this seems a fairly arbitrary distinction – clearly the Trust’s views are connected to its religious beliefs – and it may not be a valid distinction following the recent judgment of the European Court in Eweida v. United Kingdom.
Fourth, Lang J held that people who change their sexuality are not protected by the Equality Act, which only covers three categories of sexual orientation – homosexual, heterosexual and bisexual. If this is correct, it means the Act is not particularly inclusive of people who do not wish to consider themselves bound by one of these three narrow labels.
Finally, an interesting procedural point: it seems that if Core Issues Trust may well have won if it had pursued its claim on more conventional judicial review grounds, rather than relying mainly on human rights arguments. Lang J found that TfL’s decision was procedurally unfair. In fact, she devoted a full nine paragraphs of her judgment to severely criticising TfL’s decision-making process. However, it seems the Trust did not argue procedural unfairness, failure to take into account relevant considerations or breach of the administrative law principle of consistency as grounds of its claim, so it could not win for any of those reasons.
That said, as Lang J pointed out, had the Trust won on these grounds the remedy would simply have been that TfL’s decision was ‘quashed’ (i.e. nullified by the court) so that it had to make its decision about the advert again. It may well have reached the same conclusion again, whereas if the Trust had won on human rights grounds, there would have been a declaration that the decision was wrong.
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“Lang J held that people who change their sexuality are not protected by the Equality Act, which only covers three categories of sexual orientation – homosexual, heterosexual and bisexual. If this is correct, it means the Act is not particularly inclusive of people who do not wish to consider themselves bound by one of these three narrow labels.”
So I can perfectly legally advertise a job, stating that only applicants who are willing to identify themselves as innately, immutably and ontologically homosexual, heterosexual or bisexual need apply?
How come …
“the Trust did not argue procedural unfairness, failure to take into account relevant considerations or breach of the administrative law principle of consistency as grounds of its claim, so it could not win for any of those reasons”
..and yet …
“TfL argued that the ‘legitimate aim’ behind banning the advert under Article 10(2) was ‘the protection of morals’. Lang J held that this was not persuasive, but found instead that TfL’s real aim was to protect the rights of others … It is odd for TfL’s decision to be upheld as being in furtherance of an aim which it never actually mentioned itself”
Why is the court allowed to help one side, by itself thinking up an argument that that side hadn’t pleaded but should have, and allowing that argument to win the day, but, having thought up an argument the other side didn’t plead either but should have, not allowed to let *that* unpleaded argument to win the day?
How on earth did we ever get ourselves into the position in which it is now forbidden, in many contexts, to dissent from the Stonewall doctrine, that buggers can’t be choosers?
For A to offend B two things have to happen: A has to give offence and B has to take it. Both are voluntary acts. I become increasingly concerned that the emphasis is on stopping A doing the former and never on saying that B need not do the latter – especially where the opinon to be expressed is not the conventional opinion of the day.
But I fear that I am – to use a euphemism – spitting into the wind.
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