‘Ex-gay’ advertisement could not be justified, High Court rules

Legal News | 22 March 2013

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Buses should not be allowed to carry 'offensive or controversial' messages

Transport for London’s decision to cancel a bus advertisement which read ‘Not gay! Ex-gay, post-gay and proud. Get over it!’ was not unlawful, the High Court has ruled.

The advertisement was ordered by Anglican Mainstream, which aims to defend “scriptural truths” and the Core Issues Trust, a Christian charity based in Northern Ireland, which also works for the “promotion of the Holy Scriptures”.

It was intended to be a response to an earlier bus advertisement by Stonewall which read ‘Some people are gay. Get over it!’

Giving judgment in Core Issues Trust v Transport for London [2013] EWHC 651 (Admin), Mrs Justice Lang described all bus advertising in London as “extremely intrusive”.

She went on: “Millions of people who live in, or visit, London will be confronted by advertisements on buses, whether they are pedestrians, cyclists or motorists, and they will not be able to avoid them, even if they find them deeply offensive.

Lang J said: “In order to give effect to the primary rights of freedom of expression in a democratic society, those who wish to promote an offensive or controversial message should be entitled to do so.

“In my view it is proportionate to ask those people to express those views in a way other than by advertising on buses in a major city.

“Posters, leaflets, articles, meetings and the internet all provide an alternative vehicle for expression for expression of those views.”

Lang J said the Stonewall bus advertisement was “highly offensive” to fundamentalist Christians and other religious groups.

“I doubt whether this confrontational advertisement did anything to ‘tackle prejudice’ or ‘promote understanding’ among homophobic people,” she said.

“It was more likely to spark retaliation, as it did in the case of Anglican Mainstream and the Trust.”

However, the judge ruled that the trust’s ‘ex-gay’ slogan was “liable to encourage homophobic views, whether intentionally or not”, and TfL would be in breach of its duty to eliminate discrimination under Section 149 of the Equality Act if it went ahead.

She concluded that TfL’s decision to reject the advert was justified and proportionate in pursuit of its legitimate aim of protecting the rights of others.

Lang J dismissed the trust’s application for judicial review, but granted permission to appeal.

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