[Quercus Robur]

Ban on Ex-gay advert by High Court in London

Core Issues Trust v. Transport for London 22 March 2013 [2013] EWHC 651 (Admin)

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).

The Decision

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.
Comment

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.

Thoughts?

[Social_Critic]

Silly. They should let both sides have a debate on London buses. This will increase cash flow and help keep ticket prices down. I don't see what's the big deal, it's like putting up an add with "I'm not for the monarchy" or "Football isn't a sport". Who cares?

[Goldberk]

Glad the advert was banned, some views have a right to be expressed others do not.

[Social_Critic]

Yes, I realize many people think that way. But I've sided with the US SUpreme Court on this issue. I support the right of nazi bums to parade in downtown Skokie, Illinois. A harmless add on a bus which frankly I don't even get is fine. I like that better than the Benetton add showing Obama kissing Osama on the lips. That was really distasteful.

[Quercus Robur]

What irritates me about this decision is that there was such an obvious public interest and the fact that it was a response to Stonewall. Stonewall's add was aggressive solidarity (in my view entirely justified) with most people whose sexual behaviour is same sex, and the Anglicans were attacking that aggressive stance. On the other hand the Anglican's were obviously undermining social solidarity a bit since that was the thing they were attacking. I haven't examined the evidence that these adds were intimidating, but that strikes me as potentially spurious. The pro-gay were more intimidating in my opinion, even if I agree with the intention.

[Suska]

C'mon. That's really not in anyone's interest. Use you're procedure and let people have their say.

[Decky]

some views have a right to be expressed others do not.

This. A whole heap of this.

[Suska]

A whole heap of this

Nonsense and ignorance. Whatever you find in the world that mustn't be criticized, that is sacred. Is it really a matter of faith that homosexuals ought to not examine their full options - is it a betrayal of the homosexual cult to quit being homosexual?

[Decky]

I was agreeing with the principle more than anything. I find gay marriage pretty meaningless political crusade as there should be no state recognised marriage in the first place.

[Suska]

I was agreeing with the principle more than anything

Why should it be a principle anywhere to limit people's voices - so long as they are just voices. That is the human race reasoning, I doubt it limits violence to forestall reasoning.

I find gay marriage pretty meaningless political crusade as thee should be no state recognised marriage in the first place

Agreed.

[Goldberk]

Why should it be a principle anywhere to limit people's voices - so long as they are just voices.

bourgeoise nonsense, some voices/opinions are harmful to the general good and should be suppressed.

[Andalublue]

The best way to challenge any voice is to hear it, debate it and defeat it. As an activist for LGBT rights for 32 years, I think that banning these adverts was idiotic and counterproductive. The LGBT community doesn't need TfL fighting its battles, especially battles that the LGBT community itself wasn't in the process of losing. This gives the impression of not wanting to win an argument by having the best reasoning, but by appealing to positive discrimination. PD had its place, in a time where the odds were unfairly stacking against the right of free expression of LGBT positions. That's no longer the case and this kind of decision-making merely creates martyrs. Martyrdom can work, it did for us for a long enough time. Don't give the enemy martyrs. That's a simple and sensible piece of advice.

[Suska]

bourgeoise nonsense, some voices/opinions are harmful to the general good and should be suppressed.

So your principle is to look for sectors of your community in order to find someone to silence? Or do I understand you to mean that if someone were to say something specifically counter-productive you might criticize them and if necessary force their silence legally or if necessary by threats and death? This is not principled behavior, the entire scenario is imagined and must present itself as a case. What I find striking though is the reduction of my pragmatic argument to a matter of my being ignorant due to some class you suppose I belong to. General good even... People who anticipate needing to force a favorable dialog are really not good candidate governors in the modern era; that's why this insane little bullshit argument in London, about bus ads reaches an international audience.

[nucklepunche]

Glad the advert was banned, some views have a right to be expressed others do not.

bourgeoise nonsense, some voices/opinions are harmful to the general good and should be suppressed.

If you believe that then you should take down that picture of Emma Goldman as your avatar and put up one that more closely matches your views on this subject.



To me the idea that a view should be suppressed merely because it is "harmful" negates the rights of human conscience to its lowest level. And if you have the right to ban your political opponents from speaking, what is to stop them from banning you? After all many of them believe your views as harmful as you believe theirs. If we allow any limitations on free speech whatsoever what is to stop a new McCarthy from coming on scene and blacklisting you for your outspoken anti-capitalist views?

Yes the "ex-gay" movement is ridiculous and stupid, but it doesn't mean they shouldn't have the right to be ridiculous and stupid.

[Goldberk]

Or do I understand you to mean that if someone were to say something specifically counter-productive you might criticize them and if necessary force their silence legally or if necessary by threats and death?

Depends on how negative their views, if someone says x-factor is great I'll tell them to shut up but not necessarily put them in a gulag, however people who argue the primacy of private property, individual rights and frees peach are dangerous people and need to be "re-educated".

If you believe that then you should take down that picture of Emma Goldman as your avatar

Unfortunately some anarchists have spoken out in favour of free speech, but it's not necessarily an anarchist position, I don't stand for stand for state power crushing free speech but for a recognition that in communities formed by free association, dangerous speech will not be tolerated.

[Decky]

I can see that Goldberk is starting along a path that I approve of.

Come to the dark side, we can actually do something about the reactionaries.

When you fight the right, Franco wins, when we fight the right Hitler dies.

[nucklepunche]

When you fight the right, Franco wins, when we fight the right Hitler dies.

While I oppose suppressing oppressive beliefs I do support battling against oppressive beliefs and taking action against the oppressors from oppressing people, but the action of oppresion itself differs from expressing the desire to oppress people. My issue is that many in the name of tolerance and equality seek to prohibit that, and in the end become oppressors themselves.

What is the point of fighting oppression if we simply trade one oppressor for another?

[Goldberk]

Come to the dark side, we can actually do something about the reactionaries.

I still oppose the use of state power to achieve these ends.

What is the point of fighting oppression if we simply trade one oppressor for another?

Because the collective group oppressing individualism is a positive thing. It is not oppression but freedom.

[SE23]

Glad the advert was banned, some views have a right to be expressed others do not.

and you are meant to be a anarchist ?


Who gets to determine what views and opinions have the right to be expressed and which ones don't ?
It's only because now middle class intellectuals like yourself are pushing your own set of liberal values and belief systems on to everyone else, that we have to suck them up and adhere to them, i am sure you are up to date to critical theories and constructivism. Just use your theories that you use to justify your own authoritarianism on to everyone else, and reverse them, to have a deep look in the mirror.

Once you start suppressing views, you turn moderate opinions into extreme ones and thats when you start having problems.

[Goldberk]

Who gets to determine what views and opinions have the right to be expressed and which ones don't ?

Autonomous communities should have the right to determine which views are expressed within those communities. However in our system I would settle for an enlightened individual with opinions I agree with.

Once you start suppressing views, you turn moderate opinions into extreme ones

And why would that be a bad thing?