Bull & Bull v Hall & Preddy  EWCA Civ 83 (10 February 2012)
The England and Wales Court of Appeal held that a hotel policy of providing double rooms only to married persons constituted unlawful direct discrimination on the grounds of sexual orientation against persons in a civil partnership. The hoteliers submitted that the policy, a manifestation of their genuinely held religious beliefs, was protected by articles 8 and 9 of the European Convention on Human Rights. The Court held that, to the extent that anti-discrimination regulations limit such manifestation, the limitations were necessary in a democratic society for the protection of the rights and freedoms of same-sex couples.
The appellants, Mr and Mrs Bull, ran a small 'private' hotel and lived on-site. The appellants let single and twin rooms to anyone but maintained and consistently applied a policy of restricting double rooms to married couples only. The policy was available online and had been the subject of local media attention.
The policy derived from the appellants' genuinely held religious belief that:
monogamous heterosexual marriage is the form of partnership uniquely intended for full sexual relations between persons and that homosexual relations (as opposed to homosexual orientation), and heterosexual sexual relations outside of marriage, are sinful.
The appellants believed that they would be promoting sin by allowing unmarried heterosexual or homosexual couples to stay in double rooms. They had lived in accordance with their religious beliefs for many years and were nearing retirement.
The respondents, Mr Hall and Mr Preddy, are civil partners. Unaware of the policy, the respondents booked a double room via telephone on 4 September 2008. When they arrived at the hotel the next day, the appellants refused to honour their booking.
The Bristol County Court declared that, contrary to regulation 4(1) of the Equality Act (Sexual Orientation) Regulations 2007 (UK), the appellants unlawfully discriminated against the respondents on the grounds of sexual orientation by refusing to honour the reservation. Damages for injury to feelings of £1,800 were awarded to each respondent.
Mr and Mrs Bull appealed to the Court of Appeal.
The appeal centred on two issues: whether there was direct discrimination on an ordinary reading of the Regulations and, if so, whether the Regulations can be read compatibly with the appellants' religious rights under the Convention.
The Court dismissed the appeal.
Discrimination contrary to the Regulations
Regulation 3(1) provides that person A discriminates against person B on the grounds of the sexual orientation of B or any other person if A treats B less favourably than A treats others where there is no material difference in the relevant circumstances. Regulation 3(4) establishes that civil partnerships are to be treated in the same way as marriage and do not constitute a 'material difference' for the purposes of 3(1).
The appellants submitted that the policy was directed towards sexual practice, not sexual orientation, and was applied equally to unmarried persons of any sexual orientation. The appellants pointed to the large number of unmarried heterosexual couples to whom the policy had been applied as evidence that the policy was not targeted at sexual orientation.
The Court held that the appellants did discriminate on the basis of sexual orientation. The policy necessarily excluded all homosexual couples but not all heterosexual couples. A married person could receive a benefit (a room with a double bed) under the policy that a civil partner could not. The Court observed that the “criterion at the heart of the restriction, that the couple should be married, is necessarily linked to the characteristic of an heterosexual orientation”. Thus, the Court concluded, the respondents were treated less favourably than married persons and therefore suffered unlawful direct discrimination contrary to the Regulations.
Consistency with the European Convention on Human Rights
The appellants argued that the Regulations must be construed consistently with the Convention, particularly article 8 (respect for private and family life) and article 9 (freedom of thought, conscience and religion).
The Court held that the appellants' rights under article 8 were not breached. In fact, the Court noted that if any article 8 rights were at risk, it would be the respondents' rights if the appellants were permitted to refuse a double room to civil partners.
Article 9 protects, relevantly, the right to manifest religious beliefs. The Court agreed that the policy was a manifestation of the appellants' orthodox religious beliefs but held that, to the extent that the Regulations limit such manifestation, the limitations are necessary in a democratic society for the protection of the respondents' rights and freedoms. The Court noted that the appellants are able to manifest their religious beliefs outside the commercial sphere. The appellants have no obligation to offer double rooms but, if they do, they must let them to those in a civil partnership (or, according to Hooper LJ, to any homosexual couple). The Court added that the Regulations are also necessary to protect the respondents' rights under article 14 of the Convention (prohibition on discrimination).
Relevance to the Victorian Charter
This case may inform the approach taken by Australian courts in adjudicating the intersection between certain orthodox religious beliefs and the prohibition against discrimination on the grounds of sexual orientation.
Although civil partnerships are not available to same-sex couples in Victoria, there are prohibitions against discrimination on the grounds of sexual orientation. Section 8 of the Victorian Charter, which protects the right to the enjoyment of human rights without discrimination, is comparable to article 14 of the Convention.
Section 14 of the Victorian Charter enshrines the right to freedom of thought, conscience, religion and belief, and freedom to demonstrate beliefs via “worship, observance, practice and teaching”. This resembles article 9(1) of the Convention. Section 7(2) of the Victorian Charter, like article 9(2) of the Convention, provides that any human right may be subject to “such reasonable limits as can be demonstrably justified in a free and democratic society”. This case provides useful guidance on what may constitute 'reasonable limits' in the context of discrimination on the grounds of sexual orientation.
The decision is available online at: http://www.bailii.org/ew/cases/EWCA/Civ/2012/83.html
Catherine Newton is a lawyer and Duncan Travis is a Partner at Allens Arthur Robinson.