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High Court backs ban on ‘ex-gay’ bus advert

28 March 2013


Allowed: Boris Johnson, the Mayor of London, attending the London Gay Mayoral Hustings, hosted by Stonewall, in April last year in London. He is showing a version of the original Stonewall advert

Allowed: Boris Johnson, the Mayor of London, attending the London Gay Mayoral Hustings, hosted by Stonewall, in April last year in London. He is sho...

A DECISION by Transport for London (TFL) not to allow a Christian group to place an advertisement on London buses, in response to a pro-gay one by the campaigning group Stonewall, was not irrational or dispropor-tionate, the High Court has ruled. Nor did it involve the Mayor of London in an abuse of his position as chairman of TFL in seeking to advance his re-election campaign.

Stonewall's advert, stating "SOME PEOPLE ARE GAY. GET OVER IT!" prompted a riposte reading: "NOT GAY, EX-GAY, POST-GAY AND PROUD. GET OVER IT!" This was disallowed by TFL on 12 April last year.

The claimants in the High Court proceedings challenging TFL's decision were the Core Issues Trust, a registered charity based in Northern Ireland. Its objects include "the promotion of the Holy Scriptures". It says that it works "with people who voluntarily seek to change from a 'gay' lifestyle to a gender affirming one", which is referred to as a "sexual re-orientation process".

The trust planned the advert with Anglican Mainstream, a conservative Anglican charity, although it took no part in the court proceedings. It and the trust deliberately copied the design colour and wording of Stonewall's advert to make it clear that it was a response.

TFL had previously permitted controversial and potentially offensive advertisements on its transport system, notably an advert on the outside of London buses placed by the British Humanist Association which read, "There's probably no God".

The trust argued that TFL had abused its statutory powers for an improper purpose, and that the real reason why the advert was banned was because the Mayor, Boris Johnson, disagreed with the views expressed, and considered that the advert could be a liability in his bid to be re-elected as Mayor for London.

TFL argued at the hearing that the decision to ban the advert had been made by its managing director of marketing and communications, not by Mr Johnson. There was press comment that revealed that the rival candidate for mayor, Ken Livingstone, also supported the ban on the advert.

The judge, Mrs Justice Lang, said that the appointment of the mayor as chairman of TFL, with power to appoint board members and give directions to TFL, created a potential conflict of interest between the mayor's different roles which he had to be careful to avoid.

It was perfectly proper, the judge said, for Mr Johnson, as chair of TFL, to be involved in the decision-making process, and to express his views. But if the motive for the decision was to advance Mr Johnson's election campaign, at the expense of a proper exercise of TFL's powers and duties, that would call into question the lawfulness of the ban.

In the judge's view, there was no evidence of such unlawfulness. TFL acted in its own interests to avoid causing offence to a section of the public, and to avoid criticism and controversy. TFL's interests coincided with those of Mr Johnson, who also wished to avoid causing offence and avoid criticism which might affect his mayoral campaign. The overlap in interests did not make the decision to ban the advert unlawful.

The trust also argued that, by refusing its advert while accepting the advert by Stonewall, TFL had discriminated against the trust, contrary to Article 14 of the Human Rights Convention, which prohibits discrimination in the enjoyment of Convention rights. It argued that TFL discriminated against ex- gays, and that ex-gays faced hostility and discrimination from both homosexuals and heterosexuals.

The judge rejected that argument, first because the claim was brought by the trust, which was a corporate body and had no sexual orientation, and therefore was not a victim of any discrimination on the grounds of sexual orientation; and, second, because ex-gays were not a protected class under the Equality Act 2010. The protected classes were homosexuals, heterosexuals, and bisexuals. There was no fourth category of persons who were previously orientated to persons of the same sex and were now orientated to persons of the opposite sex.

Nor, the judge ruled, was Article 9 of the Convention - which protects the human right to freedom of thought, conscience, or religion - engaged. The rights protected by Article 9 could not be enjoyed by corporate entities or non-natural persons, such as associations. They could be enjoyed by religious communities and Churches, but the trust was neither of these.

Moreover, even if the advert that the trust had sought to be placed was motivated by a religious belief, it did not actually express that belief. Nor was the trust required by religious belief to communicate those views by way of advertisement on London buses, the judge said.

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