‘The Birmingham LGBT protests’: A reimagining of the decision in Lee v Ashers

By Damilola Ojuri

On 31 May, an interim injunction was granted to Birmingham City Council in its claim against the Anderson Park Primary School “LGBT teaching” protesters, led by Shakeel Afsar. The without notice claim was brought to “protect staff and pupils” who encountered the protesters. On 10 June, the interim injunction was quashed, and was replaced by an interim order which bans the lead protestors, including Mr Afsar, from engaging in or coordinating the protest.

The protests have garnered much media attention, with some campaigners alluding to a dismissal of their Article 10 right to Freedom of Expression. Save for examinations of the conditions of the injunction, the legal world has yet to consider the practical merit of the two sides of argument as it relates to discrimination law and human rights law.

Such cases, where two sets of rights are opposed, have the potential to engage the age-old debate of the superiority of certain liberties over others.

Lee v Ashers

One such case was explored in the recent Supreme Court decision in Lee v Ashers Bakery. The case concerned Mr and Mrs McAuthur, a Christian couple who ran a bakery shop in Northern Ireland, which was now managed by their son. The appeal turned on the legality of the Couple’s refusal to produce a cake which was commissioned to read “support gay marriage”. The topical case made its way up to the Supreme Court as it required a judgment on the matter of direct discrimination and the examination of existing law in light of principles arising from the facts of the case.

The court agreed that the bakers did not unlawfully discriminate against the couple on the basis that forced speech constitutes a limitation of one’s convention rights.

Turning now to the case of the Birmingham protesters, arguably the rights which we must consider are: (i) Article 9:  Freedom of religion or belief; (ii) Article 10: Right to freedom of expression; and (iii) Article 11: Freedom of assembly and association.

This piece will outline three reasons why, were we to consider the merits of the protesters’ case from the lens of human rights law, the precedent set in Lee v Asherswould not apply to them.

 A critical assessment of the rights engaged

Like the McAuthurs, the protesters maintain that their contention is not with the LGBT community per se, but with exposing their children to an education that is contrary to their religious beliefs. Hence, the facts of the case are distinguishable from, for example the ECtHR case of Identoba and Others v. Georgia which concerned a peaceful demonstration against homophobia in Georgia where an opposing set of campaigners invaded the demonstration based on their opposition to both the sexual orientation of the protesters and the protesters themselves.

As to the principles laid down in Lee v Ashers, the distinguishing factors can be found below.

1. The Birmingham protestors are not being asked to manifest a belief which they do not hold.

Article 9(2)of the European Convention on Human Rights expresses that “freedom of thought, conscience and religion is one of the foundations of a democratic society”. In the words of Lady Justice Hale in Lee v Ashers, “One is free both to believe and not to believe”. Equally, one of the functions of a democratic society is to allow for exposure to alternative ways of thinking.

The fundamental difference between the two cases is that neither the protesting parents, nor their children have been asked to engage in a positive act which would otherwise be protected under Article 10. This precludes the present facts from accessing the principles in Lee v Asher, and others such as Commodore of the Royal Bahamas Defence Force v Laramore in which the privy council agreed that a Muslim officer had been hindered in the exercise of his constitutional right to freedom of conscience when he was made to engage in Christian prayers.

2. The protestors seek to prevent the school from exercising its rights Article 10rights.

If this case were to appear before a court, on the facts, the protesters’ case would be closer to that of the failed defendants than that of the appellants. This is because the protesters are attempting to restrict the rights of the school through forced, non-speech. Last year, the Joint Committee on Human Rights, which is comprised of both parliamentary houses, publishedits guidance on free speech for universities and students. Having regard to the age of the students in the current case, it is perfectly arguable that the 5 principles set out in that document would duly apply to Anderson Park Primary School.

Points 2 and 4 of the 5 principles are particularly relevant – see below:

(2) [Universities] should seek to expose their members and students to the widest possible range of views–whilst ensuring that they act within the law.

(4) …Protesters who attempt to prevent viewpoints being heard infringe upon the rights of others..

By expanding their curriculum to consider underrepresented viewpoints, the school is taking a balanced approach in exercising its Article 10 rights. Whilst the protesters’ actions could be perceived as attempting to undermine those rights.

3. The school is entitled to this addition under the Equality Act 2010.

The quick and simple answer to this dilemma is that the discrimination provisions found within the Equality Act 2010 on age, religion and belief do not extend to a school’s curriculum once it has been approved by its local authority. However, schools are increasingly encouraged to ensure that the discrimination provisions are considered when developing their curriculums which it has, despite coming to a position of disagreement with the protesters.

Conclusion

The principal purpose of this piece is to outline why the decision that was arrived at by the Supreme Court in Lee v Ashers would not uphold the hypothetical case of the Birmingham LGBT protesters if they were to scope their case similarly. My secondary intention was to dissect the facts so as to force the reader to consider the rights being engaged by the protesters, as well as their legal weight in the current circumstances.

I would be glad to have achieved the first and will leave reader to consider the latter.


Disclaimer: The views expressed herein are the author(s) alone.

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