Wednesday, 2 February 2011

Marriage a la mode - all the fun of the law

The first effects of the Bull ruling are being felt. Hotels which provide exclusively gay male accommodation, thus distinguishing themselves in the market, have had their business model damaged. This is what the Guyz Hotel "Gay Men Only" said last week.

The screen-grab is fuzzy, but it is from Guyz Hotel index (not the booking terms and conditions) and it says [my emphasis]:
Guyz Hotel has been run as a gay hotel for the past 24 years, and is one of the most popular and longest established gay hotels in Blackpool, catering for gay couples, singles and groups who want a gay environment with quality accommodation. Previously voted 3rd best gay hotel in UK!!
This could mean that it happens to be run with the preferences of gay patrons in mind. That is being 'gay friendly'. This is not the same as saying: "this is exclusively for gay people". It continued:
Guyz is a GENUINE Gay Hotel. That means it is a hotel owned and run BY gay people FOR gay people but beware there are some straight owned ‘Pink Pound’ friendly Hotels locally that display the pride flag trying to cash in on gay money, and it isn’t until you check in that you discover they may be mixed, or even have STAG & HEN parties staying.!!!
No doubt about it then. They won't accept heterosexuals and they won't accept lesbians. They discriminate on gender and sexual orientation; a guest has to fulfill both conditions to be admitted.
If you are specifically looking for a Gay Hotel be sure to ask if it is exclusively gay when booking to avoid possible disappointment
Ordinarily I wouldn't bother about a hotel choosing to run itself for gay men and failing to provide any objective and reasonable justification for doing so. There are a great number of hotels, so even if this one was discriminatory towards me and/or Mr Raft, it wouldn't matter unless a fair percentage of hotels refuse to serve us. In the meantime, Gabrielle's says I can't take Mr Raft in there either, not even if we are both gay.

Still, if that's the price of establishing a profitable business then I can live with it because I'd rather see people rich and happy than poor and miserable. The explicit sexism and heterophobia just doesn't make all that much difference to customer over entire hospitality sector, but it makes a heck of a difference to the hotelier at the modest end of the market where there are large numbers of similar hotels and only limited ways of distinguishing a service.

The EHRC dances round this by summarizing that sometimes it is possible to provide services on a discriminatory basis but that all differences in treatment must have an objective and reasonable justification. (See full guide). Can Mr Raft be refused entry to The Pink House hotel in Brighton objectively (because he's a man) and reasonably so? I doubt it.

For as long as the Bulls down in Cornwall have been tangling themselves up in knots over who can sleep in a double bed, the Guyz Hotel has been trading on an explicit separatist ethic. They cheerfully took up a registration as 'gay men exclusively' through a trade association, BAGS. (To use that link, do a search on the criteria "exclusively gay guests", meaning the website provider and the hotel both believe it is legal and intend to discriminate on sexual orientation.)

However, public money was spent by the Equality and Human Rights Commission on bringing a private civil case to test the implementation of a regulation in a statutory instrument which followed quietly behind the primary legislation.

John Wadham of the EHRC is crystal clear on this: if you are in a commercial relationship then you can't discriminate on grounds of sexual orientation and civil partnership is marriage for the purposes of claims under this statutory instrument.

That Regulation again:

Statutory Instruments 2007 No. 1263 EQUALITY
The Equality Act (Sexual Orientation) Regulations 2007
Made 17th April 2007 Coming into force 30th April 2007

There are explanatory notes at the bottom of the made version and an explanatory memorandum attached, which sets out the intentions of the act and is much easier to read before going on to the Act, although what is intended is not the same as what happens when the technical game of legal ping-pong starts.

5.11 The Regulations will impact positively on people in the lesbian, gay and bisexual community by providing a route to redress against discrimination. However, it will also have a positive impact on members of the heterosexual community, as they too can seek redress for discrimination where, for example, they are refused access to a pub because they are not gay.
So the intention of the Act was that public-access places such as the Guyz Hotel could be sued under this regulation for refusing to accept a heterosexual guest and that their ability to discriminate on the basis of sexual orientation would be removed from them. If they continue to advertise on that basis they are either discriminating unlawfully or advertising in a misleading fashion.

Perhaps somebody rang John Wadham (Helpline: 0845 604 6610) and asked about wording on the website because this week Guyz Hotel have hurriedly changed their welcome page which now reads:

Is this enough to keep them on the right side of the law? Regulation 10 states:
Discriminatory advertisements

10.—(1) It is unlawful to publish, or to cause to be published, an advertisement which indicates (expressly or impliedly) an intention by any person to discriminate unlawfully.
There are exceptions and exclusions to this but the general commercial guideline holds, so can any hotel being run for profit hold itself out as a gay establishment? To test that, would a hotel be able to advertise itself as a straight establishment? We haven't had the test case yet and the interesting thing here is that there is only one body which can bring it :
3) Proceedings in respect of a contravention of this regulation may be brought only—

(a) by the Commission,
which probably means that no matter how offended the Christian Institutes are by adverts for gay hotels, they cannot do anything about it, especially if the EHRC have told the hotel that they are in the clear. However, John Wadham and the EHRC might possibly bring one against a hotel which says:
Dire Straitz Hotel has been run as a heterosexual hotel for the past 24 years and is one of the most popular and longest established straight hotel in Llangrebub, catering for heterosexual couples, singles, and people who want a heterosexual environment. Situated close by Llangrebub's new heterosexual piazza, Dire Straitz Hotel is a short walk along the promenade from Llangrebub's tea rooms, ball room and chapel. Your hosts Mr and Mrs Jones would like to welcome all guests, old and new, and assure you of clean quality accommodation and service.
Although Mr and Mrs Jones say they welcome all guests, the wording could be interpreted as showing an intention to unlawfully discriminate on grounds of sexual orientation or simply be discriminatory in presentation.

Personally, I'd rather see the Chymorvah hotel and the dozens of gay hotels such as Guyz or Pride Lodge or Chaps open and doing their respective businesses. The more they are profitable, the less likely the proprietors are to wind up on benefits.

Note that the hotels forbore to go round shutting each other down, presumably because both the LGBT operators and the Bulls can count shillings; it's better for both of them to tut at each other but keep taking the money. It's hard to get guests and the best thing to do is to build up a regular clientele to smooth-out the seasonal demand and offer the national chains some competition.

It is guests who should be deciding if there is enough business to support an exclusively gay hotel; not the John Wadham and the EHRC as to whether they can run and advertise such an establishment. But if the EHRC is going to do this, it must do it equally across the economy.

The EHRC has a staff of 80 lawyers; the commission itself has a budget of £70 million. (I'm assuming the Times added up the numbers in the Report and Accounts, but I haven't checked)

When is it going to oblige the Acqua Sauna to open women-only sessions at a time which is suitable for that market i.e. they can't wiggle round it by doing only 4.30am on a Wednesday morning once a month, regardless of whether there is any take-up of the day passes?

Alternatively, scrap the EHRC, save £70 million, and leave Acqua Sauna, the Chymorvah hotel, and Guyz alone to get on with making a living.


Electro-Kevin said...

A gay hotel ?

I often wondered what they meant by the 'gay lobby'.

Submariner said...

It's somewhere to camp out, I suppose.

subrosa said...

Very sensible argument and well set out. I would agree with you entirely and I just hope someone emails a copy of this to the Bulls. It may save them money on legal fees.

Woman on a Raft said...

I'm afraid, Subrosa, that the Bulls don't really want legal advice. They want a martyrdom. They are very likely to get their wish.

James Dingemans QC, representing the Bulls, has played his hand as well as possible. I doubt he expected to win this round; the regulation was formulated for exactly this situation so the ruling at county court level was a foregone conclusion.

Civil partnership is marriage for this purpose, so Hall and Preddy could not be treated less favourably than any married couple who had booked the room.

It's by no means clear that the Bulls were able to lawfully discriminate against single people in defiance of existing discrimination law; it's just that nobody had ever called them out on it.

Dingemans gave a legal opinion to the Christian Institute before the regulation was implemented that it set the issue of religious freedom against other rights. He guessed the challenge might come to a Christian care home refusing a double room to a same-sex couple, so he had been expecting this test case to come along for several years.

He has technically won this round (although the client has lost) because it has gone straight to leave to appeal, meaning he has won the argument that there is a real clash of HR principles.

Only lawyers win in the long-run.

If, like ASE and I, you see this as an economic matter and don't necessarily think that human rights were ever meant to be trivialized by petty squabbles over hotel rooms instead of important matters like whether the state can lock you up or take away your children in secret, then you will be content with a segmented market and let the customers decide whether a hotel will go out of business or not.

Hall and Preddy were always entitled to win this one on a consumer basis; they insist they booked in good faith and then the landlord refused to honour that, making no effort to overcome the trouble they had been put to.

If you are a secularist you will see this as a straightforward clash of HR principles.

If you are Cranmer you will see this as evidence of militant secularism and an anti-Christian bias. I no longer dismiss that view, although he sometimes lays it on a bit thick.

Anonymous said...

Good bye, considerate alternative other :)