Bull v Hall [2013] UKSC 73

In brief

Christian hoteliers Mr and Mrs Bull refused to let a double-bedded room to Mr Preddy and Mr Hall, civil partners, because their sincerely held religious belief was that sexual relations outside heterosexual marriage were sinful. The Supreme Court unanimously dismissed the Bulls' appeal. By a majority of three to two (Lady Hale, Lord Kerr and Lord Toulson) it held that this was direct discrimination on grounds of sexual orientation; Lord Neuberger and Lord Hughes, in the minority on that point, held it indirect discrimination that was not justified [55], [62], [64], [73], [87]. No Justice disagreed that the limitation on the Bulls' article 9 right to manifest religion was proportionate, the article 9(2) analysis resting on the rights of others under the ordinary law, here the couple's right not to be unlawfully discriminated against [44], [51]-[53]. Lady Hale, delivering the leading judgment, described sexual orientation as a core component of a person's identity [52], and emphasised that religious conviction cannot justify refusing equivalent treatment in the provision of goods, facilities and services.

Key provisions

• §52–54 (Hale); §85 (Neuberger) — Article 9 manifestation of religion is limited by the equality rights of others : Where a service provider asserts that providing an equivalent service to a same-sex couple would breach their sincerely held religious belief, the proportionality analysis under article 9(2) balances the manifestation of religion against the equality rights (articles 8 and 14) of the couple. The Supreme Court unanimously held the limitation on the Bulls' manifestation of religion proportionate. Lady Hale's reasons (lead judgment): Parliament created civil partnership as the equivalent of marriage, a sincere belief cannot create a class exempt from the legislation, Parliament gave no conscientious-objection clause to individuals, and very weighty reasons are needed to justify discrimination on grounds of sexual orientation [36]-[39], [51]-[53]. She did not rest proportionality on a commercial/private distinction.
• §57–61 (Kerr) — Civil partnership treated as materially equivalent to marriage for equality purposes : Regulation 3(4) of the 2007 Regulations required civil partnership to be treated as not materially different from marriage for the purposes of assessing discrimination. A majority of three (Lady Hale, Lord Kerr, Lord Toulson) held that refusing to provide equivalent accommodation to a civil-partnered couple that would have been provided to a married couple was direct discrimination on grounds of sexual orientation [55], [62], [64]. The route through regulation 3(4) is Lord Kerr's, as one of the majority [59]-[62]; Lady Hale (majority) found it difficult to regard regulation 3(4) as turning indirect into direct discrimination and relied on the criterion being indissociable from sexual orientation [27], [29]. Lord Neuberger and Lord Hughes, dissenting on this point, held the discrimination indirect [78], [91]-[92].
• §35–37 (Hale) — Justification under regulation 3(3)(d): a sincere belief cannot create a class exempt from the legislation : A hotel is a commercial establishment that holds itself out as serving the public. At [35]-[37] Lady Hale (lead judgment) addressed justification under regulation 3(3)(d): whether the belief could be a matter other than sexual orientation, why discrimination against civil partners is hard to justify, and why a sincere belief cannot create a class exempt from the legislation. The proportionality reasoning does not weigh the commercial character of the business; 'commercial' appears only where Lady Hale (lead judgment) reports a British Columbia tribunal decision, to which she gave little weight [49]-[50].

When relevant

Disputes where a service provider, employer or staff member invokes religious or philosophical belief to justify differential treatment of a trans person (e.g. refusing equivalent accommodation, facilities access, or service). On its facts the Court held the limitation on manifestation of religion proportionate [51]-[53]; it framed no rule for a commercial/public context, and applying it to trans people is our analogy. Pair with Forstater and Higgs on the protected-belief side and Bank Mellat on the methodology side.