High Court rules TFL ban on homophobic bus advert not unlawful

Mrs Justice Lang has handed down judgment in the case of Core Issues Trust v TFL [2013] EWHC 651 (Admin).  The Claimant had sought judicial review of TFL (Transport For London)'s decision to ban an advert from London buses.  The advert in question, commissioned by the Christian charity Anglican Mainstream on behalf of the Claimant, read NOT GAY! EX-GAY, POsT-GAY AND PROUD. GET OVER IT!  The advert was a response to bus adverts run by the gay rights campaign group stonewall which read sOME PEOPLE ARE GAY. GET OVER IT!.

The Claimant is a charity which claims to [support] men and women with homosexual issues who voluntarily seek change in sexual preference and expression.  The advert had originally been cleared to run by TFL's compliance committee, but was subsequently blocked by TFL following the involvement of the Mayor's office.  The decision to pull the advert followed a leak to The Guardian which had triggered a number of complaints, including that the advert implied that homosexuality was an illness that was to be treated.

The Claimant brought an application for judicial review of TFL's decision on the grounds that it was irrational and breached Articles 9, 10 and 14 of the European Convention on Human Rights (freedom of religion and belief, freedom of expression and anti-discrimination).

Lang J found that TFL had applied its advertising policy inconsistently.  TFL had not banned the stonewall advert or another advert placed by the British Humanist Association which read 'there's probably no God', both of which could be considered offensive.  However, Lang J held that the inconsistency was not sufficient reason to find that TFL's ban was unlawful.  This was because:-

 a)  advertisements on the side of London buses are highly intrusive;

b)  the advertisement would cause grave offence to a significant section of the many inhabitants of London; and, for those who are gay, it was liable to interfere with the right to respect for their private and family life under Article 8(1);

c)  it was perceived as homophobic and thus increasing the risk of prejudice and homophobic attacks;

d)  it was not a contribution to a reasoned debate;

e)  leaflets, articles, meetings and the internet all provide an alternative vehicle for the expression of the Trusts message;

f)  under the Equality Act 2010, TfL was under a duty to eliminate discrimination and harassment against gays and to foster good relations tackle prejudice and promote understanding between those who have same-sex orientation and those who do not.  Displaying the advertisement would have been in breach of that duty. 

There was no breach of Article 14 and the Trust was not protected under the Equality Act 2010 because it was not an individual with sexual orientation and the individuals it represented (˜ex-gays) are not a protected class of persons under the Equality Act.

Article 9 was not engaged because the Trust was not an individual, religious community or church.  It was held that decision could not be characterised as irrational.

A full copy of the judgment can be found below:-

http://www.judiciary.gov.uk/media/judgments/2013/core-issues-trust-v-tfl