Rodriguez v Minister of Housing & Anor (Gibraltar)  UKPC 52 (14 December 2009) The Privy Council has held that a Gibraltar Housing Allocation Committee policy to effectively grant government housing joint tenancies only to heterosexual couples was indirectly discriminatory and unconstitutional.
The Gibraltar Housing Allocation Committee’s policy was to grant joint tenancies only to married partners or to common law partners who had children in common. Nadine Rodriguez, the appellant, lived with her same-sex partner in a Government flat. In 2006, Ms Rodriguez applied unsuccessfully to the Committee for a joint tenancy with her partner.
She then sought a declaration, first from the Supreme Court of Gibraltar and ultimately from the Privy Council, that the decision breached her rights under the Gibraltan Constitution to respect for private and family life and freedom from discrimination on the basis of sexual orientation.
In allowing the appeal, the Privy Council held that Ms Rodriguez had not been directly discriminated against. As unmarried heterosexual couples without children would also have been denied a joint tenancy, the policy applied equally to all sexual orientations. However, the Privy Council determined that the policy was indirectly discriminatory; given that same-sex couples could never get married or have children in common, it was impossible for same-sex couples to ever meet the criteria.
The Privy Council further held that this discriminatory treatment was not justifiable as a ‘legitimate aim’. While distinctions between married and unmarried couples can sometimes be justified, in these circumstances it was determined that no legitimate aim was served. Any possible aim of discouraging homosexual relationships was clearly impermissible, as it would contravene the right to respect for private life. Also, it was held that the policy did not aim to protect children, and it did not cover all couples who had undertaken parental responsibility. Ultimately, there was no justification for excluding same-sex partners in a stable, long term, committed and inter-dependent relationship from the protection afforded by a joint tenancy.
Relevance to the Victorian Charter
The rights of non-discrimination, equality and freedom from arbitrary interference with family and privacy are enshrined in ss 8 and 13 respectively of the Victorian Charter of Human Rights.
This case could have ramifications for legislation in areas such as adoption, access to a partner’s superannuation benefits and recognition of non-biological co-parents, traditionally areas in which same-sex couples have been accorded differential treatment. While many of these fall within the Commonwealth legislative ambit, the push for a national Human Rights Act could mean that this case has relevance beyond state borders.
The decision is available at http://www.bailii.org/uk/cases/UKPC/2009/52.html.
Christine Georgy, Summer Clerk, Mallesons Stephen Jaques Human Rights Law Group