I am totally bemused by a Gibraltar Court of Appeal ruling yesterday, that the Gibraltar Government was legally entitled to protect the ‘traditional family’ by favouring heterosexual married couples in the allocation of state-owned housing!
Two local lesbians failed in a legal bid to convince Gibraltar’s highest court that Government housing policy discriminates against homosexual couples.
The case dates back over three years and stems from a decision by the Housing Allocation Committee to refuse the couple joint tenancy of a Government flat, even though the women were in long-term, monogamous and loving relationship.
Under Gibraltar law, only parents, spouses and children can be included in a Government tenancy agreement.
Lawyers said that left the two women at a disadvantage because, unlike heterosexuals, they could not marry and had no way of meeting the criteria for joint tenancy of a Government-owned flat.
Last December the Supreme Court rejected claims that the Government's refusal to offer the couple joint tenancy housing amounted to a breach of the couple’s fundamental Constitutional and human rights.
Acting Chief Justice Anthony Dudley also dismissed a separate argument that a same-sex couple should be afforded equality under common law to a married couple of the opposite sex.
The couple appealed the decision but yesterday the Court of Appeal agreed, by a majority of two to one, with Mr Justice Dudley's earlier ruling in December last year.
However, the Gibraltar Chronicle report said "the judgment yesterday fell short of an unequivocal victory for the Gibraltar Government" with "one clear voice of dissent".
The Appeal was heard by three senior UK judges, Sir William Aldous, Sir Paul Kennedy and Sir Murray Stuart-Smith, the President of the Court of Appeal.
The 'clear voice of dissent' was that of Sir William Aldous, who was clearly far more 'learned' than his colleagues. Sir William agreed with the couple and even went as far as describing the Government policy as "illegal"!
In a 33-page Judgment, Sir Paul Kennedy said that "... the preference which (the Government policy) gave to married couples was a positive preference of a kind which the law regards as acceptable in circumstances such as these, and which did not require further justification."
He was backed in that view by Sir Murray Stuart-Smith, the President of the Court of Appeal, who said that marriage was widely accepted in legal precedent as an institution that conferred particular status."There is no analogy between married couples and couples who remain unmarried, whether by choice in the case of heterosexual couples or because they are unable to marry in the case of homosexual partners.
The protection of the ‘traditional family’ is in principle a legitimate aim of domestic legislation."
Well, maybe so... and I would not disagree with these basic principles. I think protecting the 'traditional family' is a good basic principle for any country's domestic legislation... but so is protecting against homophobia and Governments (or anyone) discriminating against people on the grounds of sexual orientation! Which is why both the UK and the European Union laws disallow discrimination of this kind on those grounds!
I'm no lawyer... but it seems to me that this ruling flies in the face of both!
Article 14 of the European Convention on Human Rights (ECHR) protects against discrimination based on a number of criteria including sex. The ECHR has also been incorporated into the laws of the United Kingdom by the Human Rights Act 1998
So how can two UK judges sitting on a Court of Appeal in Gibraltar rule in favour of the Government in this instance?? 
Frankly, I find this judgment very disappointing and I simply cannot understand it!
The Gibraltar Chronicle report concludes that "for now at least, the decision brings to a close a case that could have set a landmark precedent for gay rights in Gibraltar"... but I for one very much hope that this issue is not allowed to rest here.
Following the Gibraltar Appeal Court ruling, Gibraltar's Equality Rights Group GGR criticised the Gibraltar Government for "wasteful use of taxpayers' money in pursuing court actions which, in the end, it will have to go back on".
Equality Rights Group Chairman, Felix Alvarez said "the vast majority of Europeans today consider the kind of treatment being meted out by the Housing Allocations Committee to same-sex couples as unfair and unacceptable".... and I am one of those Europeans!
In his statement, the Equality Rights Group Chairman said:"While government spends many thousands of pounds in preventing a gay couple from being able to occupy one flat jointly instead of being allocated two separate housing units as a couple of long-standing, they know as well as we do, that the EU will be introducing binding law which will make discrimination in housing illegal on the grounds of sexual orientation.
In other words, government will have no choice in the matter in a few years’ time.
The Caruana government continues to pour big money into the defence of a position it is doomed to lose.
What kind of reasoning is this when not so long ago we were being told by the Minister for Justice that the access of ordinary citizens to Legal Aid had to be re-defined and curtailed in order to save money?
Something somewhere just does not fit in what appears, more and more, to be a government policy led by prejudice and homophobia.
The rulings of the Courts must be respected at all times. However, judgments are subject to further appeal. GGR will continue to support this and any other same-sex individual or couple with a just cause in discrimination to take their complaint as far as the law permits.
In this case, we look forward to the Court of Appeal’s recent ruling being overturned either by the Privy Council in the UK, or by the European Court of Human Rights in Strasbourg. We are confident this will turn out to be so. And even if it isn’t, in a few years’ time we will still live to see government obliged to change its policy by law, whether the present administration likes it or not. The only shame is that government should still insist on wasting citizens’ money.”
Protecting 'traditional family values'?
Whilst I might share Felix's concern over the Government's wasting of tax payers' money to a degree, I am far more concerned with the more shameful aspect of all this, which is a Government relentless in its obstructive policy, discriminating against two human beings on the grounds of their sexual orientation! Shameful!
If the Gibraltar Government is genuinely interested in protecting 'traditional family values' (whatever those may be), they might do better by looking into protecting against and restraining the amount of domestic violence, physical, sexual, psychological and / or financial violence that prevails in Gibraltar... a society that continually turn a blind eye and brushes under the carpet, far more concerning issues within the Sanctity of Marriage... which brings 'traditonal family values' far more into question, than a same sex couple wanting to share their lives under a joint roof ever will!
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The Joy of Six 1285
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