Discrimination


Birth certificate cannot be retrospectively changed to reflect father’s gender reassignment

23 April 2015 by

birthcertificate300x203_4fba822944823JK, R(on the application of) v Secretary of State for Home Department and another [2015] EWHC 990 (Admin) 20 April 2015 – read judgment

This case concerned the rights of transgender women, and their families, in particular the right to keep private the fact that they are transgender.

The Court heard a challenge to the requirement in the UK’s birth registration system that men who had changed gender from male to female should be listed as the “father” on the birth certificates of their biological children. Having decided that this did engage the claimant’s privacy rights under Article 8 of the European Convention of Human Rights, in conjunction with the right not to be discriminated against under Article 14, the Court concluded that the interference was justified.

Factual and legal background

The clamant JK had been born male. She was married to a woman, KK, and the couple had two naturally conceived children. After the birth of the first child in 2012, JK was diagnosed with gender identity disorder and concomitant gender dysphoria. In October 2012, she started a course of feminising hormone treatment. The treatment pathway requires two years living as a female before consideration is given for referral for gender reassignment surgery. Before the claimant started feminising hormone therapy, KK fell pregnant a second time, again conceiving naturally by the claimant.
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Grayling’s legacy, naked rambling and the benefits cap: It’s the Round-up!

30 March 2015 by

Naked RamblerLaura Profumo brings us up to speed with the latest human rights happenings.

In the News

“It seems hard to believe that Grayling will remain Lord Chancellor for long”. Joshua Rozenberg delivered a biting analysis of the minister’s future legacy in the Law Gazette last week. As the General Election looms, “perhaps Cameron has finally begun to realise how much anger and despair there is at the steady erosion in access to justice for which Grayling is held responsible”. If the Conservatives lead the next government, the Lord Chancellor will struggle to secure his place, Rozenberg warns.

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Supreme Court splits the baby over the benefit cap – Mike Spencer

19 March 2015 by

Money purse - WalletR(on the application of SG and others (previously JS and others)) v Secretary of State for Work and Pensions [2015] UKSC 16 – read judgment

The Supreme Court was sharply divided yesterday over whether the benefit cap breaches the Human Rights Act. The controversial cap limits the total amount of benefits an out-of-work family can receive, including housing benefit and benefits for children, to £500 per week. It is applied regardless of family size or circumstances such as rental costs. As a result, lone parents with children in large families are disproportionately affected, both because they are more likely to be hit by the cap and because they are less likely to be able to avoid its effects.
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The Big Fat Gypsy Judicial Review

26 February 2015 by

images

Traveller Movement v Ofcom and Channel 4, [2015] EWHC 406 (Admin), 20 February 2015 – read judgment

One of the nation’s great televisual fascinations last week became the unlikely subject of an Administrative Court judgment that demonstrates the limits of common law standards of fairness, as well as the lightness of touch applied by the courts when reviewing the decision-making of the media regulator.

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Irish Supreme Court struggles with outcome of surrogacy arrangements

20 November 2014 by

orig-src_-susanne-posel_-daily_-news-dna_baby_womb

M.R. and D.R.(suing by their father and next friend O.R.) & ors -v- An t-Ard-Chláraitheoir & ors [2014] IESC 60 (7 November 2014) – read judgment

The definition of a mother, whether she is “genetic” or “gestational” for the purpose of registration laws was a matter for parliament, not the courts, the Irish Supreme Court has ruled.

At the core of the case was the question whether a mother whose donated ova had resulted in twin children born by a surrogacy arrangement should be registered as their parent, as opposed to the gestational mother who had borne the twins.

The genetic mother and father sought her registration as “mother” under the Civil Registration Act, 2004, along with a declaration that she was entitled to have the particulars of her maternity entered on the Certificate of Birth, and that the twins were entitled to have their relationship to the fourth named respondent recorded on their Certificates of Birth.
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Removal of subsidy for spare room not unlawful

29 October 2014 by

Bedroom taxCotton and others, (R on the application of) v Minister for Work and Pensions and others, 15 October 2014  [2014] EWHC 3437 (Admin) – read judgment

Whether you call it the “spare room subsidy” or the “bedroom tax”, the removal of this type of housing benefit has been nothing short of controversial. There have been several previous legal challenges to the Regulations, as well as to the benefit cap introduced as part of the same package of welfare changes. The outcome of these cases was not promising for these claimants, in particular the decision of the Court of Appeal in R (MA) v Secretary of State for Work & Pensions [2014] EWCA Civ 13. Another important case is R (SG (previously JS)) v Secretary of State for Work & Pensions [2014] EWCA Civ 156.

Now the High Court has settled one aspect of the matter by ruling that these amendments did not breach the  rights of singe parents under Article 8 ECHR  who looked after their children under shared care arrangements where they received discretionary housing payments to make up the shortfall.
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Council’s decision to close elderly care home not unlawful

2 October 2014 by

ammaoldagehomeKaria, R (on the application of) v Leicester City Council (Sir Stephen Silber, acting as High Court Judge)  [2014] EWHC 3105 (Admin) (30 September 2014)- read judgment

In a robust judgment Sir Stephen Silber has asserted that neither the ordinary laws of judicial review, nor the Equality Act nor the Human Rights Act require the courts to micro-manage the decisions of public authorities. Indeed the latter two statutory powers are not designed as a back door into a merits review of a decision that is restricted to the court’s review of the legality of a public sector decision.

Background facts and law

The claimant, a 101 year old woman of Gujarati descent, challenged the decision to close the care home which she has occupied since 1999. Her grounds of challenge were threefold:

1. that the Council had failed to take account of material issues of fact relating to the present and future levels of demand for residential care one provision

2. that it had reached its decision without due regard to the need under the Equality Act 2010 to avoid unlawful discrimination in the provision of services

3. and it had failed to take into account the impact of the closure on the claimant’s Article 8 rights

She also complained that she had a legitimate expectation of a home for life at Herrick Lodge and that the Council had not considered whether her needs could be met in alternative placements.

Although the judge was at pains to stress that as this was a judicial review application, it was not for him to assess the merits of the Council’s decision, merely its legality. Having done so, he concluded that the Council had not acted irrationally, nor had it  paid due regard to the need to advance equality of opportunity.

It is not for the Court to determine whether proper weight has been given to a factor where as here there has been proper appreciation of the potential impact of the decision on equality issues.

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Foreign criminal cannot be deported because of his right not to be discriminated against on grounds of illegitimacy

22 July 2014 by

aeroplane in sunsetJohnson, R (on the application of) the Secretary of State for the Home Department [2014] EWHC 2386 (Admin) 17 July 2014 – read judgment

The proposed deportation to Jamaica of a man convicted of drug smuggling and manslaughter would breach his rights under Article 8 and Article 14 because he had not obtained British citizenship on grounds of illegitimacy, the High Court has ruled.

The claimant challenged his proposed deportation to Jamaica, following his conviction and imprisonment for a very serious criminal offence. He submitted that deportation would violate his right to private and family life under Article 8 combined with the prohibition on discrimination under Article 14. The discrimination was said to arise because the claimant did not become a British citizen when he was born in Jamaica as the illegitimate child of a British citizen, whereas he would have been a British citizen if he had been a legitimate child, and a British citizen cannot be deported.

Following his conviction for manslaughter the claimant was sentenced to 9 years’ imprisonment. The length of his sentence meant that he was subject to automatic deportation as a foreign criminal pursuant to Section 32 of the UK Borders Act 2007. On his appeal against the respondent’s notice, the issue of discrimination arose because of the fact that the claimant would not have been a foreign national had his British father been married to his Jamaican mother when he was born (in Jamaica).
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Not unlawful to refuse egg freezing therapy for Crohn’s sufferer

18 April 2014 by

bigstock-Boiled-Or-Raw-Egg-8015047Rose, R (on the application of) v Thanet Clinical Commissioning Group [2014] EWHC 1182 (Admin) 15 April 2014 – read judgment

Jeremy Hyam of 1 Crown Office Row represented the claimant in this case. He had nothing to do with the writing of this post.

There are times when individual need comes up against the inflexible principles of the law and the outcome seems unjustifiably harsh. This is just such a case – where a relatively modest claim based on individual clinical need was refused with no breach of public law principles.  As it happens, since the Court rejected her case, the the young woman concerned has been offered private support for the therapy she was seeking. The case is nevertheless an interesting illustration of the sometimes difficult “fit” between principles of public law and the policy decisions behind the allocation of NHS resources.
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Passive smoking in prison not a breach of human rights – Court of Appeal

14 April 2014 by

Cigarette_smokeSmith, R (on the application of v Secretary of State for Justice and G4S UK Ltd  [2014] EWCA Civ 380 – read judgment

This case raises the question of whether it is a breach of a non-smoking prisoner’s Convention right to respect for his private life and to equality of access to such rights (ECHR Articles 8 and 14) to compel him to share a cell with a smoker.

The appellant, a convicted sex offender serving a long sentence, was required between 21st and 28th March 2012 to share a cell with a fellow prisoner who was a smoker. It was known to the prison authorities that the appellant was a non-smoker, and the requirement to share with a smoker was contrary to his wishes. The sharing complained of ended when the appellant was transferred to another prison on 28th March 2012.

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Gay discrimination and Christian belief: Analysis of Bull v. Hall in the Supreme Court

11 December 2013 by

Peter-and-Hazel-Bull-007Bull v. Hall and Preddy [2013] UKSC 73 – read judgment here.

The recent confirmation by the Supreme Court that it was unlawful discrimination for Christian hotel owners to refuse a double-bedded room to a same-sex couple was of considerable interest as the latest in a string of high-profile cases involving religious belief and discrimination on the basis of sexual orientation (and the first such judgment involving the highest court in the land). We have already provided a summary of the facts and judgment here, and our post on the Court of Appeal ruling can be found here.

The case has been  portrayed in some media as a clash between gay rights and religious freedom, with gay rights winning – see e.g. the Daily Mail’s headline: B&B owners’ right to bar gay couple crushed by ‘need to fight discrimination’. This is despite the best efforts of Lady Hale, who gave the main speech, to emphasise at paragraph 34 that this decision did not amount to replacing legal oppression of one community (homosexual couples) with legal oppression of another (Christians and others who shared the appellants’ beliefs about marriage), because the law equally prohibits a hotel keeper from refusing a particular room to a couple because they are heterosexual or because they have certain religious beliefs. However, moving beyond this simplistic portrayal of the issue at stake, there are several interesting legal points in the decision, which may raise more questions than it answered.

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Christian care worker loses Sunday working discrimination appeal – Richard Wayman

5 December 2013 by

300px-Duccio_di_Buoninsegna_014Mba v London Borough Of Merton [2013] EWCA Civ 1562 – Read judgment

The Court of Appeal has dismissed the appeal of a Christian care worker against the decision of the Employment Appeal Tribunal (EAT) that a requirement that she work on Sundays indirectly discriminated against her on the grounds of religion or belief.

The Court unanimously found that although both the EAT and the Employment Tribunal (ET) had erred in law, the ET’s decision was ‘plainly and unarguably right’ [24], and applying the principle in Dobie v Burns International Security (UK) Limited [1984] ICR 812, the errors did not make any difference to the outcome.


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Disabled challenge to bedroom tax fails

31 July 2013 by

first-home-buyersMA and others (on the application of) v Secretary of State for Work and Pensions & Ors [2013] EWHC 2213 (QB) (30 July 2013) – read judgment

The High Court has unanimously dismissed an application for a declaration that the so-called “bedroom tax” discriminates unlawfully against disabled claimants.

The arguments

This was a challenge by way of judicial review to regulations that came into force last year, reducing the amount of housing benefits by reference to the number of bedrooms permitted by the relevant statute (the Social Security Contributions and Benefits Act 1992 ).  These new rules, which have applied to claimants of housing benefit since April 2013, restrict housing benefit to allow for one bedroom for each person or couple living as part of the household. Discretionary housing payments are available for certain qualifying individuals to mitigate the effect of the new rules, in particular the effects on disabled people and those with foster caring responsibilities.
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Second Christian B&B case headed for the Supreme Court

23 July 2013 by

black and morganBlack and Morgan v. Wilkinson [2013] EWCA Civ 820 – read judgment here.

The Court of Appeal recently dismissed an appeal by a Christian bed and breakfast owner, upholding the decision that she unlawfully discriminated against a gay couple by refusing to provide them with a double bedroom. However, the Master of the Rolls (head of the civil justice system) Lord Dyson expressed doubt about whether the previous binding decision of the Court of Appeal in the very similar case of Hall and Preddy v. Bull and Bull [2012] EWCA Civ 83, was correct, and the Court granted permission to appeal to the Supreme Court. 

This decision is the latest in a line of cases which have grappled with the ‘conflict of equalities’, many of which have concerned the potential clash between religious freedom and the prohibition on discrimination on grounds of sexual orientation. It raises difficult questions about how to reconcile competing rights or ‘protected characteristics’ under discrimination law, and it will be very interesting to see how the Supreme Court deals with this and the Preddy case when they are heard together in the autumn.

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Will the Public Sector Equality Duty survive the Red Tape Challenge? – Neil Crowther

22 March 2013 by

cut-red-tape-challengeIn May 2012, the Home Secretary announced a review of the Public Sector Equality Duty (PSED), which came into force a year earlier in April 2011, as an outcome of the Red Tape Challenge.  The review is focusing in particular on levels of understanding of the PSED and guidance, the costs and benefits of the duty, how organisations are managing legal risk and ensuring compliance with the duty and what changes, if any, would secure better equality outcomes.  It is being overseen by a steering group, appointed by Government Ministers, largely drawn from public authorities. 

The Review has recently launched a call for evidence, with a closing date of 12th April 2013.  The call is particularly interested in ‘equalities paperwork and policies related to PSED (particularly in relation to public sector procurement processes) and the collection, retention and use of diversity data by public bodies, for example, in relation to goods, facilities and services.’

The Equality and Diversity Forum has produced a helpful briefing on the Review.

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