Court of Session (Inner House): Lord Justice Clerk, Lord Malcolm, Lord Pentland,  CSIH 4, 18 February 2022
This was a challenge brought by way of judicial review to the Scottish Government’s decision by way of the Gender Representation on Public Boards (Scotland) Act 2018 to implement certain positive action measures which treated as a “woman” a “person [who] is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female.” Continue reading
Court of Appeal: Peter Jackson, Asplin and Nicola Davies LJJ,  EWCA Civ 1390,  IRLR 993, 24 September 2021
This was an appeal from the decision reported previously in this blog. The claimant was an independent fostering agency which sought to recruit (exclusively) evangelical Christian foster carers whose conduct was consistent with “traditional Biblical Christian” standards of behaviour, which did not include same-sex sex. The High Court rejected its challenge to an Ofsted report which found that its policy of accepting only heterosexual evangelical Christians as the potential carers of fostered children breached the EqA 2010 and the HRA 1998, ruling that the policy discriminated unlawfully on grounds of sexual orientation and was not saved by s193 EqA (see further below) or, because it provided services on behalf of a public authority, by para 2 of Sch 23. It required that Cornerstone alter the policy. Cornerstone was granted permission to appeal the High Court’s ruling on direct and indirect sexual orientation discrimination under the EqA and on the application of s193 EqA, though not on on the application of para 2 of Sch 23. It was also permitted to appeal the High Court’s findings that that Cornerstone had breached prospective foster carers’ Convention rights, and that Ofsted had not breached Cornerstone’s Convention rights.
The appeal was dismissed on all grounds. (Peter Jackson LJ, with whom Asplin and Nicola Davies LJJ agreed, ruled that Cornerstone’s recruitment policy involved direct sexual orientation discrimination and was disproportionate to the aims pursued, this with the effect that the statutory defence did not apply, the discrimination by Cornerstone breached foster carers’ rights under Article 14 and 8 and Ofsted had not breached cornerstone’s rights under Article 9 ECHR. Continue reading
High Court: Julian B Knowles J,  EWHC 1679 (Admin), 7 July 2020
The case was brought by a charitable adoption and fostering agency which sought judicial review of a report by Ofsted which found that its policy of accepting only heterosexual evangelical Christians as the potential carers of fostered children breached the Equality Act 2010 and the Human Rights Act 1998, and required that Cornerstone alter the policy. Cornerstone, which had contractual relationships with a number of local authorities, challenged Ofsted’s findings that its carer recruitment policy involved unlawful discrimination because of sexual orientation under the EqA and the HRA, and unlawful discrimination on grounds of religion or belief contrary to Article 8 and 14 ECHR. It also claimed that Ofsted had discriminated against Cornerstone on grounds of religion. Julian B Knowles J accepted that Ofsted had erred in deciding that Cornerstone had discriminated against potential foster carers on grounds of religion in view of the defences provided by the EqA, and because the discrimination was justifiable under Article 14. He otherwise rejected the Cornerstone’s claim. (Note that Cornerstone’s appeal was rejected by the Court of Appeal:  EWCA Civ 1390,  IRLR 993, and see subsequent post.) Continue reading