Nadine Rodriguez v Minister of Housing of the Government and another (Gibraltar)

A public housing policy may discriminate indirectly on grounds of sexual orientation even when its stated criterion applies to unmarried couples generally. Where same-sex partners can never satisfy a marriage or common-child requirement, the impact may approach direct discrimination. Justification requires a legitimate aim, a rational connection between the aim and the treatment, and proportionality. Protecting family life and recognising marriage may be legitimate aims, but discouraging homosexual relationships is not, and denying home security must be rationally connected to the stated aim. Constitutional restrictions must also be accessible and authorised by law. An uncodified policy which evolves during the dispute fails that legality requirement.

The appellant lived with her same-sex partner in a Government flat and sought a joint tenancy to protect her partner’s security after her death. The Housing Allocation Committee refused under a policy favouring married couples and unmarried opposite-sex couples with a child in common.

The Supreme Court of Gibraltar found no discrimination but quashed the decision for unlawful fettering of discretion. After reconsideration, the Committee maintained its policy. The Court of Appeal dismissed the appellant’s appeal by a majority. The Privy Council considered whether the policy contravened sections 7 and 14 of the Constitution of Gibraltar, including the requirements of justification and legality.

Lady Hale delivered the judgment of the Board. The appeal was allowed. The appellant was entitled to a declaration that the policy contravened her rights under sections 7 and 14 of the Constitution of Gibraltar.

1. Constitutional framework. Section 14(2) provides free-standing protection against discriminatory treatment by public authorities. Sexual orientation is a prohibited ground under section 14(3). The Board adopted the established approach that both direct and indirect discrimination are covered, and that discriminatory effect does not require proof of discriminatory intention. The Board also treated the Constitution as requiring its own interpretation, so the restraint applicable when United Kingdom courts interpret Convention rights under the Human Rights Act 1998 did not apply: see R (Ullah) v Special Adjudicator [2004] UKHL 26.
2. Discrimination. The Board preferred an assessment of the nature of the relationships rather than a technical comparator analysis. Applying the approach in R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37, the policy’s effect was discriminatory. The appellant and her partner sought the same protection for their family home as other family members. The criterion was one which this same-sex couple could never satisfy, because they could neither marry nor have children in common. The effect therefore came close to direct discrimination on grounds of sexual orientation.
3. Justification. The inquiry required a legitimate aim, a rational connection between the aim and the difference in treatment, and proportionality. Protection of the traditional family could be a legitimate and weighty aim. However, denying a housing benefit to same-sex couples could not rationally encourage opposite-sex couples to marry. Discouraging homosexual relationships was not a legitimate aim, as explained in Ghaidan v Godin-Mendoza [2004] UKHL 30. The policy’s categories were also incoherent: if the aim was protection of the family home, it was irrational to exclude stable same-sex partners recognised as family members.
4. Legality. Through sections 7(3) and 14(7), restrictions on the equal right to respect for the home had to be authorised by law and accessible. The policy had evolved over time, was not codified, and was not made known to applicants. It was therefore not in accordance with the law.
5. Relief. The Board did not prescribe the precise policy to be adopted. The Committee had to ensure that stable, long-term, committed and interdependent same-sex partners were not excluded from joint-tenancy protection. The decision did not require Gibraltar to introduce same-sex marriage or civil partnership.

1. Privy Council: Appeal allowed and declaration granted that the policy contravened the appellant’s constitutional rights.
2. Court of Appeal of Gibraltar: In April 2009, the majority dismissed the appeal. Sir Murray Stuart-Smith concurred and Sir William Aldous dissented.
3. Supreme Court of Gibraltar: Dudley J found no discrimination but quashed the Committee’s decision for unlawful fettering of discretion. The Committee later reconsidered and maintained the policy.