Scottish Human Rights Law Group

It was argued that the Sex Discrimination Act prohibition of discrimination on ground of sex, could and should -  if properly interpreted in line with Articles 8 and 14 ECHR – be read so as to apply to employment discrimination ostensibly on grounds of sexual orientation – but in reality, so the argument went, if one maintained the identity (including gender) of the person to whom an attraction was admitted, the acceptability of the admission of sexual attraction varied depending on the gender of the person making this admission).   The argument was unsuccessful before the House of Lords on the grounds, inter alia, that Parliament had by the time the case was argued before the House made specific provision in respect of discrimination on grounds of sexual orientation (namely the Employment Equality (Sexual Orientation) Regulations 2003) and so it would run contrary to the intention of Parliament to read the existing Sex Discrimination Act in the manner contended for.   The pursuer’s remedy in respect of his Convention incompatible discriminatory treatment lay before the European Court of Human Rights rather than before the domestic courts since the Human Rights Act had no retrospective application.

Link to Bailii for Case Report.