The Board of the Privy Council has unanimously decided that a government housing allocation policy favouring married couples and couples with a child in common discriminates without justification against same-sex couples. Such couples are unable to have a child in common, and cannot get married (there is no civil partnership or equivalent in Gibraltar). The decision sets an important limit on the extent to which it is legitimate, under Strasbourg jurisprudence, for states to privilege the status of marriage in the allocation of public benefits. Further consideration of the judgment, delivered by Lady Hale on 14 December 2009, follows a brief recap of the facts and the decisions below. (The Board consisted of Lord Phillips, Lady Hale, Lord Collins, Sir Jonathan Parker and Sir Henry Brooke.) 

The appellant, Nadine Rodriguez, was granted tenancy of a government flat on 30 September 2005. The flat became the home of the appellant and her long-term same-sex partner, Ms Muscat. The latter was the bread-winner in the relationship, and the appellant the home-maker. In October 2006, the appellant, in order to provide her partner with long-term security if the appellant were to die, applied for her tenancy to be amended so as to record Ms Muscat as a joint tenant. The application was refused. The policy behind the refusal was that joint tenancies could be approved in relation to an individual and his or her parent, spouse, adult child or common-law partner with whom he or she had a minor child in common, provided that the prospective joint tenants were living together at the time of the application or allocation.
The appellant claimed that the policy as applied to her and Ms Muscat was illegal because it discriminated against same-sex couples who could neither marry (there being no provision for civil partnership in Gibraltar) nor bear a child in common. Ms Rodriguez argued that the policy thereby breached the provisions of the Gibraltar constitution requiring equal treatment, respect for privacy of the home and for private and family life. The policy was also said to violate the common law principle of equality.
These arguments were rejected by the court of first instance, which held that the proper comparator for Ms Rodriguez and Ms Muscat was not a married couple, but an unmarried opposite-sex couple (without a child in common). Since both categories were precluded from joint tenancies, there was between them no discrimination on grounds of sexual orientation.
The Court of Appeal of Gibraltar upheld the decision of the court below by a majority of two to one.  A lengthy review of relevant decisions of the European Court of Human Rights led to the conclusion that marriage is a status which states are entitled to recognise, encourage and protect by giving advantages to those who have entered into it, particularly in the domain of taxation, or claims to money or other property-related benefits. The appellant’s application for a joint tenancy was considered to be analogous to such cases. The adoption of a “bright line” distinction between those who were eligible for joint tenancies and those who were not based on marriage (or a child in common) was held to be a legitimate means of allocating housing stock the supply of which fell significantly short of demand.
In reaching this conclusion, the Gibraltar Court of Appeal made detailed reference to the judgments of the European Court of Human Rights. These guide the courts’ consideration of the issues in this case because section 18 of the Gibraltar Constitution requires a court or tribunal determining a question in relation to a right or limitation in the chapter dealing with human rights to take into account the decisions of the European Court of Human Rights which are considered by the court in question to be relevant to the proceedings at hand. In applying this requirement, the Gibraltar courts followed the leading decision of the House of Lords in relation to the equivalent interpretative requirement in section 2 of the Human Rights Act (R (Ullah) v Special Adjudicator [2004] 2 AC 323 at paragraph 20; see also M v Secretary of State for Work and Pensions [2006] 2 AC 91 at paragraph 129). 
Hence the courts in the Rodriguez case, including the Privy Council, are engaged in an exercise of constitutional rights interpretation substantially similar to that which would apply in dealing with a claim under the Human Rights Act. The Privy Council decision is therefore of interest to our developing jurisprudence on discrimination on grounds of sexual orientation. 
The Board of the Privy Council considered that “it would be unfortunate if discrimination in constitutional and human rights law were to get bogged down in the problems of identifying the proper comparator which have so bedevilled domestic anti-discrimination law in the United Kingdom” (paragraph 18).  That pitfall can be avoided because, unlike statutory anti-discrimination law, both direct and indirect discrimination can be justified in constitutional and human rights law. 
Although the Gibraltar housing allocation policy does not, on its face, discriminate on grounds of sexual orientation, it imposes on same-sex couples criteria that, because of their sexual orientation, they will never be able to meet. This, the Privy Council accepted is “a form of indirect discrimination which comes as close as it can to direct discrimination”. The discrimination results from a “failure to treat differently persons whose situations are significantly different” (as this fundamental aspect of the non-discrimination principle was articulated in Thlimmenos v Greece (2000) 31 EHRR 411 para 44). In other words, the supposed analogy between unmarried couples of opposite sexes and unmarried couples of the same sex is false, because the former are in principle capable of getting married and/or bearing a child in common, whereas the latter can do neither.
Having thus concluded that the housing allocation policy indirectly discriminates against the appellant on grounds of her sexual orientation, the Board turned to justification analysis, the benefit of which “is that is encourages structured thinking. A legitimate aim of the difference in treatment must be identified. There must then be a rational connection between the aim and the difference in treatment. And the difference must be proportionate to the aim” (paragraph 25).
The standard of justification is context-dependent, and it is “easier to justify differential fiscal benefits than differential interferences with the home and family life” (paragraph 24). It was common cause that the case falls within the ambit of protection of “privacy and the home” in sections 1 and 7 of the Gibraltar Constitution (see paragraph 12).  
Although the Board of the Privy Council accepted the potential legitimacy of “protection of the family in the traditional sense” in Strasbourg case-law, it underlined that any correlative discouragement of homosexual relationships is not legitimate (paragraph 26-27). As for the protection of unmarried couples with a child in common, the Board failed to understand why, if the aim was to provide stability and protection for the children concerned, such safeguards did not extend to couples who have undertaken parental responsibility for minor children, or to other relationships now recognised to fall within the concept of family. The policy being thus flawed, its discriminatory effect is not rationally related to a legitimate aim, and cannot be justified (paragraphs 27-28). Furthermore, the policy is not in accordance with or under the authority of law, because it is not accessible and indeed has only been articulated in response to the appellant’s challenge (paragraphs 29-30).
The Board concluded therefore that the appellant is entitled to a declaration that she has suffered discrimination in violation of her rights under sections 7 and 14 of the Gibraltar Constitution. It is incumbent on the Housing Allocation Committee to devise a policy which does not exclude same-sex partners in stable, long-term, interdependent and committed relationships from the protection afforded by a joint tenancy. One potential mechanism to identify such relationships is through the introduction of same sex marriage or civil partnership.
Janet Kentridge, Matrix