Law & politics

Religious freedom v LGBT equality: ‘gay cake’ case

Dr Erica HowardThe long-awaited decision in the so-called ‘gay cake’ case has been issued today, with the Northern Ireland Court of Appeal confirming the County Court’s finding that Asher Baking Company directly discriminated against Gareth Lee on grounds of sexual orientation. Equality and discrimination law expert Dr Erica Howard gives her assessment of the verdict.

In May 2014, Gareth Lee ordered a cake with a colour picture of Bert and Ernie, two characters from the TV programme Sesame Street, which has become the logo for QueerSpace, with the slogan ‘Support Gay Marriage’. Two days later, the bakery, Ashers, told Mr Lee over the phone that they could not fulfil the order because the bakery was a “Christian business”. The bakery is a limited company with a number of shops and about 80 employees. After Asher’s refused to make the cake, Mr Lee got the cake made elsewhere in time for the event it was meant for. Mr Lee also launched a complaint of discrimination against the bakery company and its owners. He was assisted in his claim by the Equality Commission Northern Ireland.

The ‘gay cake’ at the centre of the case

Direct discrimination

In the County Court, the bakery argued that they were “entitled to refuse to supply services which could conflict with freedom of conscience or religious belief. Judge Brownlie accepted that the owners of the bakery company had rejected the cake because of their genuine and sincerely held belief that same-sex marriage should be opposed as it is contrary to God’s law. But, she rejected the argument that this belief entitled them to refuse supplying the cake requested. She found the bakery guilty of direct discrimination on the grounds of sexual orientation.

In today’s judgment, the Belfast Court of Appeal agreed with the judge in the County Court that the bakery company had directly discriminated against Mr Lee on the ground of sexual orientation. It rejected the argument that the bakery and its owners would have been endorsing gay marriage equality by baking the cake. It argued that Mr Lee received less favourable treatment than other people because of sexual orientation. The judges considered that:

“The benefit from the message or slogan on the cake could only accrue to gay or bisexual people. The appellants would not have objected to a cake carrying the message ‘Support Heterosexual Marriage’ or indeed ‘Support Marriage’.  We accept that it was the use of the word ‘Gay’ in the context of the message which prevented the order from being fulfilled. The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community.  Accordingly this was direct discrimination.”

Potential for abuse

The Court of Appeal also considered that “if businesses were free to choose what services to provide to the gay community on the basis of religious belief, the potential for arbitrary abuse would be substantial”. And, it suggested that “the supplier may provide a particular service to all or none but not to a selection of customers based on prohibited grounds”. So, the bakery “might elect not to provide a service that involves any religious or political message, but what they might not do is provide a service that only reflects their own political or religious message in relation to sexual orientation”.

Both the County Court and the Court of Appeal thus found that there had been direct discrimination contrary to the law. This is, in my view, based on a correct interpretation of the prohibition of direct discrimination laid down in Northern Ireland’s anti-discrimination laws and in the EU Directive against discrimination on the grounds of sexual orientation. Mr Lee was directly discriminated against and was treated less favourably than someone who wanted a message celebrating (heterosexual) marriage because of sexual orientation (Note that, in Northern Ireland, same-sex couples cannot get married).

Surprising criticism

For me, the outcome of the case is welcome, but what is surprising in the case is the way the Northern Ireland Equality Commission is criticised. The following passage comes from the summary of the judgment:

“In the course of the hearing concern was expressed about the role of the Equality Commission in the pursuit of this case. It was made clear to us that the Commission recognised its role in ensuring that all elements of Northern Ireland society participate in the commercial space. To that end we have been assured that the Commission is available to give advice and assistance to those such as the appellants who may find themselves in difficulties as a result of their deeply held religious beliefs. The only correspondence to the appellants that we have seen, however, did not include any offer of such assistance and may have created the impression that the Commission was not interested in assisting the faith community where issues of this sort arose. It should not have been beyond the capacity of the Commission to provide or arrange for the provision of advice to the appellants at an earlier stage and we would hope that such a course would be followed if a situation such as this were to arise in future.”

It is not clear what assistance they should have given in this case.

It is not clear what assistance the Equality Commission should have provided to the bakery and its owners. It seems to me that the Commission was of the view that the conduct by the bakery constituted direct discrimination against Mr Lee contrary to the Northern Ireland anti-discrimination regulations (a view that has now been confirmed by both the Northern Ireland County Court and the Court of Appeal). They could and should have informed the bakery and its owners of what, in their view, was the correct interpretation of the law (and maybe they did so, this is not clear from the case), but should they have provided further assistance when the bakery and its owners wanted to pursue an interpretation which was, in the Commission’s view, not a correct interpretation of the law? It is, of course, unfortunate if the impression was created that the Equality Commission was not interested in assisting the faith community in relation to these sorts of issues, but it is not clear what assistance they should have given in this case.

Health & wellbeing

The sickness label

Sarah Carr Middlesex UniversityAssociate Professor of Mental Health Research, Dr Sarah Carr, is currently involved in a research project to survey lesbian, gay, bisexual and transgender inclusion in higher education institutions’ health and social care curricula, with colleagues Alfonso Pezzella and Professor Trish Hafford-Letchfield.

As part of the LGBT History Month activities taking part at Middlesex University in February 2016, she details the long struggle to change the classification of homosexuality as a mental illness over nearly half a century.

For LGBT History Month 2016, it’s important to look back on the impact early lesbian, gay and bisexual activists and ancestors had on the world. One crucial contribution was to contest the psychiatric diagnosis and pathologisation of homosexuality.

Almost 50 years ago, in the wake of the Stonewall riots that marked the beginning of the gay liberation movement in the US, a group of radical British gay men and women were creating the Gay Liberation Front. Later, a direct challenge to psychiatry formed a key part of their 1971 manifesto: “One way of oppressing people and preventing them getting too angry about it is to convince them, and everyone else, that they are sick. There has hence arisen a body of psychiatric ‘theory’ and ‘therapy’ to deal with the problems and ‘treatment’ of homosexuality.”

At the time, homosexuality was classified as a mental illness. As the gay liberation movement grew in the US and Britain, activists campaigned tirelessly to remove homosexuality as a disease classification and as a mental disorder from diagnostic manuals.

Gay Pride Toulouse - Photo by Guillaume Paumier (Creative Commons 2.0)
Photo by Guillaume Paumier (Creative Commons 2.0)

The sickness label

The sickness label was used by a psychiatric system that strived to ‘cure’ gay people and to discredit lesbian and gay civil rights activists. In 2005, Barbara Gittings, one of the original campaigners in the US, recalled the oppressive power of psychiatry: “The sickness label infected everything we said and made it difficult to gain credibility for ourselves. The sickness label was paramount.”

Thanks to these pioneering activists, in 1973 the American Psychiatric Association finally recognised that being gay did not mean being ‘mentally ill’ and homosexuality was removed from the Diagnostic and Statistical Manual of Mental Disorders. However, the option to diagnose someone with ‘sexual disorder not otherwise specified’ remained until 1994. Homosexuality as a mental illness itself was only finally removed from the World Health Organization International Classification of Diseases (ICD-10) in 1990 – incidentally, the same year a therapist was attempting to cure me of my ‘illness’.

Sadly, changes on paper do not always mean changes in mental health practice. Research in 2009 showed that 17 per cent of the 1,400 therapists surveyed had attempted to help patients reduce feelings of same-sex attraction. Findings from a 2015 study of risk and resilience in LGB and T mental health, with more than 2,000 people, showed that “participants reported that a lack of awareness and training means responses from medical or professional staff can feel inadequate. Inclusive resources, which reflect the lives and issues of young LGB and T people, are sparse outside of LGBT+ specialist services”.

The pathologisation legacy remains influential in mental health services, often making them inaccessible, oppressive or even unsafe for lesbian and gay people, or for people who are unsure about their sexual orientation. My research has shown that the lesbian and gay community may be suspicious of mainstream mental health services and many may choose not to engage with them when they are in distress.

Alan Turing aged 16
Alan Turing

Coming out alive

In 1999, Michael King and Annie Bartlett, researchers who explored gay people’s experiences of UK mental health services, concluded that “the conservative bias inherent in psychiatry and psychology has damaged the lives of gay men and lesbians and provided grounds for discrimination”.

When you know what went on in some NHS psychiatric hospitals until the 1970s you can understand what they meant: lobotomies, hormone treatment, chemical castration, electric shock and emetic aversion therapy. Anyone familiar with the life and death of Alan Turing will know that in 1952, he was charged with indecency when being gay was still illegal for men, and chose probation with hormone treatment instead of imprisonment.

Peter Price was a gay man who psychiatrists attempted to ‘cure’ with aversion therapy in the 1960s, using emetic drugs to make him sick when he was shown sexual images of men. His horrific ordeal is recounted in my 2010 article, ‘The Sickness Label’.

“For seventy-two hours I was injected, I drank, I was sick… I just had to sit in my own vomit and excrement… I was in a terrible state. What was going through my mind was not the fear of being gay; it was the fear of not coming out of the psychiatric wing alive.”

Fortunately, Peter did come out alive, but Mathew, a young gay man sent to a military hospital instead of the prison for having a sexual relationship with a man, did not. As his sister Colleen found out years later, Mathew had been given the emetic drug apomorphine and had died as a result.

“What he’d ended up dying of was dehydration and that had brought on a massive stroke,” she told me. “It’s what people die of in countries without much water when they’ve got diarrhoea and vomiting; it’s really bad care, why someone in the UK should actually die because of just vomiting.”

Or indeed because he loved men.

Guillaume Paumier (Creative Commons 2.0) (2)
Photo by Guillaume Paumier (Creative Commons 2.0)

Refusing to play the game

“The plague of mankind is the fear and rejection of diversity… The belief that there is only one right way to live,” wrote the famous ‘anti-psychiatry’ psychiatrist Thomas Szasz in a 1973 critique of his own profession.

Unfortunately, some mental health services are still in the business of making sure people ‘play the game’, with certain therapists exploiting gay people’s internal conflicts about their sexual orientation (and sometimes faith), confusion about identity, or distress at rejection and discrimination, in order to make them ‘normal’. GPs are still sending gay people like me who experience mental distress for conversion therapy.

The exposure of the continued practice of forms of aversion therapy in mental health services prompted the British Medical Association to vote that the NHS should not fund ‘discredited’ and ‘harmful’ conversion therapy. Speaking for the motion, junior doctor Tom Dolphin said: “Sexual orientation is such a fundamental part of who someone is that to attempt to change it will just result in significant conflict and depression, and even sometimes suicide.”

Despite the fact that the World Health Organization ICD-10 removed homosexuality as a disorder in itself, it nonetheless contains contains five ‘F66’ disorder categories relating to sexual orientation and gender identity.

We need to keep questioning and challenging psychiatric theories about lesbian, gay, bisexual and transgender people

A recent review of these categories for the forthcoming ICD-11 in 2018 concluded that “from a human rights perspective, the F66 categories selectively target individuals with gender nonconformity or a same-sex orientation without apparent justification”.

Perhaps then, the last word should come from the 1971 Gay Liberation Front manifesto, as it still holds true today:

“That psychiatrists command such credence and such income is surprising if we remember the hysterical disagreements of theory and practice in their field, and the fact that in formulating their opinions, they rarely consult gay people. In fact, so far as is possible, they avoid talking to them at all, because they know that such confrontation would wreck their theories.”

We need to keep questioning and challenging psychiatric theories about lesbian, gay, bisexual and transgender people, because those theories can still lead to the broken minds and lives of many across the globe today.