‘Ex-gay’ London bus advert ban procedurally flawed – but still lawful

Transport for London decided in April 2012 not to allow an advertisement placed by Anglican Mainstream on behalf of the Core Issues Trust to appear on the outside of its buses. The proposed wording was “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!”. It was intended as a response to an advertisement by Stonewall which had earlier appeared on the outside of TfL’s buses: “SOME PEOPLE ARE GAY. GET OVER IT!”. It also had vague echoes of a previous bus campaign by the British Humanist Association for which the slogan was “THERE’S PROBABLY NO GOD. NOW STOP WORRYING AND ENJOY YOUR LIFE”.

The reason given for the refusal was that the advertisement was contrary to TfL’s Advertising Policy because it was

“… likely to cause widespread or serious offence to members of the public on account of the nature of the product or service being advertised, the wording or design of the advertisement or by way of inference … and/or [contained] … images or messages which relate to matters of public controversy and sensitivity”.

In Core Issues Trust v Transport for London [2013] EWHC 651 (Admin) (which was taken as a “rolled up” hearing of the application for permission and the substantive hearing for judicial review), the Trust submitted that TfL had abused its statutory powers for an improper purpose, alleging that the real reason for TfL’s ban was that the Mayor of London, Boris Johnson, disagreed with the views expressed in the advertisement and thought it could be a liability in his bid for re-election as Mayor. The Mayoral election was on 3 May 2012 and the episode occurred some three weeks before polling day. In short, the claimant Trust alleged that Johnson had abused his position as Chair of TfL to advance his re-election campaign. There were press reports that Johnson had intervened – but his principal opponent, Ken Livingstone, supported his action in banning the advertisement.

Lang J came to a series of conclusions. As to the allegation of bias, Boris Johnson had not abused his position as Chair of TfL in order to advance his re-election campaign. Her Ladyship noted that the Trust was not challenging the legality of the decision on free-standing procedural grounds but had argued that the manner in which the decision had been made had demonstrated “an over-hasty reaction to press criticism made without proper consideration of the human rights of Anglican Mainstream and the Trust” (para 67). She agreed that TfL’s decision-making process had been procedurally-unfair, in breach of its own procedures, had demonstrated a failure to consider the relevant issues and “… fell below the standards to be expected of a responsible public body”.

Moreover,

“… the advertisements by the British Humanist Association and Stonewall did not comply with TfL’s own restrictions which prohibit advertisements ‘likely to cause widespread or serious offence’ or which ‘relate to matters of public controversy or sensitivity’. Both advertisements were in the form of confrontational assertions which made no contribution to a reasoned debate. The British Humanist Association advertisement was highly offensive to the religious beliefs of the significant section of the public who believe in God. The Stonewall advertisement was highly offensive to fundamentalist Christians and other religious groups whose religious belief is that homosexuality is contrary to God’s teachings” (para 145).

As to the various human rights issues:

  • Article 10(1) ECHR (expression) was engaged; however, the interference had been prescribed by law. As a public body subject to the equality duty TfL was under a positive obligation to protect the rights of gays and that was a “legitimate aim” under Article 10(2) (para 91).
  • Even though TfL had applied its Advertising Policy inconsistently and partially and had refused the Trust the opportunity to respond, TfL’s decision was justified and proportionate in pursuit of the legitimate aim of protecting the rights of others. Therefore, the refusal had not been a breach of the Trust’s rights under Article 10(1) because the shortcomings had been outweighed by the countervailing factors that made it proportionate to refuse to display the advertisement (para 148).

Interestingly, the Trust also submitted that TfL had discriminated, contrary to Article 14 (discrimination), against ex-gays who, it contended, were a protected class under the Equality Act 2010 falling within the definition of sexual orientation in section 12. The Trust also argued that ex-gays faced hostility and discrimination from both homosexuals and heterosexuals. Lang J disposed of those arguments in fairly short order, on two grounds: that the claim had been brought by the Trust which, as a corporate body, could have no sexual orientation and that, in any case, ex-gays were not protected under the Equality Act.

In her opinion Article 9 (thought, conscience and religion) was not engaged: first, because though Article 9 rights might be enjoyed by religious communities and churches they could not be enjoyed by corporate entities or non-natural persons such as associations and, secondly, because the Trust was seeking to express its perspective on a moral/sexual issue, not the manifestation of a religious belief (paras 160–162).

Nor was the TfL’s decision irrational:

“Its advertising policy expressly prohibited advertisements which were ‘likely to cause widespread or serious offence to members of the public’ or which related to ‘matters of public controversy and sensitivity’. It was reasonable to conclude that the content of this advertisement was likely to cause widespread offence and was sensitive and controversial. The huge number of complaints, and their content, provided TfL with a sufficient basis upon which to make a reasonable decision not to run the advertisement. Even if, as the Trust alleged, the Mayor and TfL personally disagreed with the content of the advertisement, this was not the sole or decisive reason for the decision. Finally, displaying an advertisement of this nature would have been a breach of TfL’s statutory equality duty in s 149 Equality Act 2010” (para 172).

Her Ladyship concluded that the Trust’s case had been arguable and permission was therefore granted but then dismissed the claim for judicial review. However, it was subsequently reported that she had given Core Issues Trust leave to appeal, on grounds that the free expression point merited consideration by the Court of Appeal.

Comment TfL won – but not without the merest soupçon of egg over corporate face. As we have seen, Lang J’s view was that, if the proposed advertisement by the Core Issues Trust was “likely to cause widespread or serious offence”, so were those by the British Humanist Association and Stonewall which TfL had already displayed on its buses. What saved TfL in the present circumstances was that to have displayed the proposed advertisement would have been breached its statutory equality duty under s 149 Equality Act 2010.

Which raises the question, did the display of the BHA and Stonewall advertisements also breach TfL’s statutory equality duty? But we shan’t know the answer because that, of course, was not in play for adjudication.

7 thoughts on “‘Ex-gay’ London bus advert ban procedurally flawed – but still lawful

  1. The judge has understandably made the same basic error as the UDHR and the EDHR itself – that error perpetuated in the lamentable Racial and Religious Hatred Act 2006. Religion is not a basic characteristic of anyone’s humanity. It’s similar to a political belief and deserves no legal protection. Someone’s sexuality on the other hand, is a human characteristic like skin colour or gender and arguably may deserve some protection.

    Let’s not forget that the religious offend against reality itself. That’s rather what “faith” is fundamentally about. These people have no more “right” not to be offended than a member (say) of the Communist party does in regard to their own particular belief. The past British Humanist Association advertisement is in no way analogous to these hate-speech advertisements by any stretch of the imagination.

  2. “[the rejected advertisement] was perceived as homophobic and thus increasing the risk of prejudice and homophobic attacks”

    I think that this might have been true, looking at the advertisement in isolation. However, in the context, that a decision the court criticised had already been taken to display the Stonewall ad, the effect of denying a right to reply to a party with an exactly contrary opinion that is no more nor less offensive or controversial than Stonewall’s, has certainly been to make me prejudiced to the point of rage against anybody who believes in the Stonewall doctrines, and inclined to hunt them down on the internet, and to attack their doctrines with vehemence.

    • In the context of those who sponsored the advert, Anglican Mainstream, paragraph 142 quoted by John Allman above represents the most serious challenge. Here we have a judge who seems irritated by the way the Mayor’s Office has ducked giving information, who is comfortable to use terms like “same sex attraction” and yet still finds the advert would have the potential to encourage homophobia and put gay people at risk.

      Even with the – deliberate or not – let-out, this puts Anglican Mainstream in an impossible position, way beyond behavior acceptable by the Anglican Communion as described by the new Archbishop or the Primates at the Dromantine. This is a disaster for them.

      In a strange way the judge fell foul of her own reasoning. She gave her opinion on the unacceptability of the ad based on evidence before her, she quoted this at length, whereas she had nothing other than the view of the Trust to justify her opinion that the other ads would have contravened the same code. Where were the letters to the TfL or logs from the ASA to justify this?

  3. @ Simon Gardner

    “Religion is not a basic characteristic of anyone’s humanity. It’s similar to a political belief and deserves no legal protection.”

    Political beliefs deserve no protection? Are you serious? Coming from somebody like yourself, with a highly political belief that is so protected that it is almost forbidden to dissent from that belief, that’s rich!

    “Someone’s sexuality on the other hand, is a human characteristic like skin colour or gender”

    That assertion is itself nothing but a doctrine akin to a political or religious belief. It is a generalisation that can easily be refuted by counter-example. I have lost count of the number of times I have read it. I know that it isn’t true.

    There are people who don’t have a “sexual orientation”, in the sense in which you are using the word “sexuality” in your own doctrinal statement.

    The dogma that Stonewall preaches from the sides of buses is that every person is innately, immutably, deterministically, biologically and ontologically homosexual, bisexual or heterosexual. Being “gay”, “straight” or “bi” are the only possibilities, and they are like being left-handed, right-handed, or ambidextrous. Core issues represents a segment of the population who know that that Stonewall teaching is false, because their own life experience is that they themselves are walking, talking counter-examples that disprove the absurd generalisation that Stonewall makes, and which you have made here today.

    Let me tell you, I for one am pretty annoyed to discover that this court has, in effect, declared that it is perfectly lawful to advertise a job, saying that applications from persons who identify as ex-gay will not be considered.

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  5. Wasn’t the BHA advert in response to the myriad religious adverts (and Alpha ones in particular) that one finds on public transport? And why would a Christian group feel the Stonewall advert was directed at them to provoke a right of reply? Is that a tacit admission that Christians hold the monopoly on homophobia? That is the problem with tit-for-tat/right of reply arguments – perhaps the original assertion was not directed at you!

    As to the substance of the judgement, Mrs Justice Lang found the BHA and Stonewall adverts merely in breach of TfL’s internal advertising code. However, she found that carrying the CIT advert would have been substantively unlawful under the Equality Act. Inter alia that was a proportionate interference with CIT’s Article 10 rights, which presumably means it would be unlawful for any public body to carry that advert.

    Whether that decision is correct or not will doubtless find its way to the Court of Appeal in due course. However, even if CIT prevail on appeal, what good will that do them regarding TfL? As far as I understand, TfL’s advertising policy per se was not challenged. So even if it would not be unlawful for TfL to carry the advert, it may yet be lawful for them to refuse to carry it – until such time as the policy itself is ruled in contravention of Article 10.

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