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Author Topic: I was shocked to learn...  (Read 115932 times)
wannabe
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« Reply #135 on: April 13, 2010, 12:41:39 PM »

What a well thought out and written post. Bravo. Smiley
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cookhamjames
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« Reply #136 on: April 13, 2010, 01:06:48 PM »

Ditto.
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Kiki1
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« Reply #137 on: April 13, 2010, 02:01:27 PM »

Agreed. It is refreshing to see someone else respond in a way to answer the original posters question, rather than voice their own soapbox agenda.

However, I do believe the suggestion of the pair using Section 3 of the 2007 Equality Act to be a little forthright, owing to the following paragraph within it. (which I did highlight as key to any resolution within my opening post a page or two back)

(4) For the purposes of paragraphs (1) and (3), the fact that one of the persons (whether or not B) is a civil partner while the other is married shall not be treated as a material difference in the relevant circumstances.

Whilst I would accept that the Law as written could be argued by some as 'clumsy' or 'ambigous', -   in light of no other paragraph pertaining to any other form of relationship, other than 'civil partnership' or 'married', - a solicitor, barrister, or judge following the current Law to the letter would be unable to entertain anyone not in either of the above when persuing a case against somebody that they believe has contravened the 2007 Act under Section 3.


So we are back to the (original) question of whether Mr Black and Mr Morgan are tied in a relationship by law.
 
« Last Edit: April 13, 2010, 02:36:15 PM by Kiki1 » Logged
Simes
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« Reply #138 on: April 13, 2010, 02:04:35 PM »

Kiki1, do you live in Cookham?
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Kiki1
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« Reply #139 on: April 13, 2010, 02:05:58 PM »

Kiki1, do you live in Cookham?

No, Canada  Grin
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James Hatch
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« Reply #140 on: April 13, 2010, 04:01:46 PM »

Sorry Simes. This KiKi Bird is trying to pin this one on me, no way am I touching it with a 40 foot barge pole. I bet this Kiki bird doesn't even know what a Beaver Tail is?
« Last Edit: April 18, 2010, 02:53:43 PM by James Hatch » Logged
Andmason
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« Reply #141 on: April 13, 2010, 04:08:01 PM »

Kiki,

I understand your argument but have to disagree.  While I think other sections of the act are clumsy in places, section 3 is far from it.  For the benefit of others the section, up to an including the part you refer to is:
Discrimination on grounds of sexual orientation
3.ó(1) For the purposes of these Regulations, a person (ďAĒ) discriminates against another (ďBĒ) if, on grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances).
(2) In paragraph (1) a reference to a personís sexual orientation includes a reference to a sexual orientation which he is thought to have.
(3) For the purposes of these Regulations, a person (ďAĒ) discriminates against another (ďBĒ) if A applies to B a provision, criterion or practiceó
(a) which he applies or would apply equally to persons not of Bís sexual orientation,
(b) which puts persons of Bís sexual orientation at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances),
(c) which puts B at a disadvantage compared to some or all persons who are not of his sexual orientation (where there is no material difference in the relevant circumstances), and
(d) which A cannot reasonably justify by reference to matters other than Bís sexual orientation.
(4) For the purposes of paragraphs (1) and (3), the fact that one of the persons (whether or not B) is a civil partner while the other is married shall not be treated as a material difference in the relevant circumstances.

The whole thrust of the legislation and paragraphs 1-3 where the meat of the law is set out, are very clear that you canít discriminate on the grounds of sexual orientation or indeed even perceived sexual orientation.  It is nothing to do with whether the gay or straight person is married, civil partnered, single, celibate or whatever.  For evaluating whether there is discrimination sub paragraphs a-d make it clear that you compare the person discriminated against to similar people of a different sexual orientation and see whether one person is disadvantaged.  There is the very reasonable concession that there must be no material differences between the two people of sexual orientation.

Paragraph 4, that you refer to, is merely an additional clarifying paragraph which seeks to put beyond doubt that the differences between a marriage and a civil partnership is not a type of material difference.   There is no explicit need for this paragraph but it helps to clarify that a person seeking to discriminate cannot say that you canít compare a gay civil partners and a straight married couple and so the paragraphs 1-3 donít apply.

To decide whether a gay couple not in a civil partnership have been discriminated against your reference point for comparison under section 3 would be a straight unmarried couple.  If a single gay person was discriminated against the comparison would be a single straight person.  (By the way the legislation works both ways so that if a gay establishment discriminated against a straight person there would be equivalent recourse under the law).

If the owners of the Swiss B&B had a policy of not allowing unmarried (or civil partnered) couples to stay in a double bed, they could be allowed to refuse the bed to the gay couple if they werenít in a civil partnership, but to do this the onus would be on them to show how they have also refused straight unmarried couples.  Based on other comments here and all the comments Iíve read attributed to the Swiss B&B owners this is clearly not the case.  They discriminated not on the marital/legal status of the couple, but purely on the basis of their sexual orientation.    As an aside I find it laughable that their website still says that a warm and friendly welcome awaits all guests.

Therefore to return to my last post, the couple in question can rely on this legislation under Section 4 (provision of goods and services) which in turn references back to the definition of discrimination under Section 3.  I am sure the majority of lawyers, barristers and judges would agree.  If the couple donít decide to pursue legal action I would wager a considerable amount of money that this would be because they want to avoid the hassle and further public limelight rather than on the basis of any adverse legal advice.  If they do go ahead with a case, I also strongly think that the Swiss B&B owners defence would not be regarding the wording of the Sexual Orientation Regulations, but rather some overarching right to practice religion under the human rights act or something similar (which I donít think we should get into here).  I also think itís pretty clear that they (ie the Swiss B&B) would lose.

One final point, if the relevant legislation were unclear (which I donít think is the case here), under English law the judge would look at the original intention of parliament (through Hansard) in setting down the law.  This would also support the position that Parliament wanted to outlaw discrimination in cases such as the SwissB&B , but as I said this is not of importance as the law as written is clear enough.
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Pongo
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« Reply #142 on: April 13, 2010, 04:27:14 PM »

Thank you Andmason, that is really interesting regarding the legal side. I suppose the police will not be interested as it is a civil case not a criminal case. I assume the two gentlemen would not get legal aid automatically either, unlike our Expenses MPs!
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Andmason
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« Reply #143 on: April 13, 2010, 07:14:09 PM »

Pongo,  I agree with all your points and I can't believe the MPs got legal aid! 

I would imagine (but I'm purely guessing) that if they did bring a civil case it would be funded by a gay right group and similarly the Swiss B&B couple's defence would be funded by some christian activist group.
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Bertie
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« Reply #144 on: April 13, 2010, 10:47:15 PM »

Simes, I take your well made point, but let's take religion, for example. There is very strong discrimination in favour of the Catholic Church. I'm not Catholic, and have no desire to see them in trouble. But when very senior members are closing ranks around one another to prevent the truth being told about child abuse, in the full knowledge that the law isn't strong enough to make them come clean, one can't help wondering why their rights are protected above the victims.

Sorry Bertie, I have read your last post several times and, much as I agree with your view of the Catholic Church, I fail to see what it has to do with my previous post.

Apologies, Simes- I didn't make myself very clear. I was trying to point out that the fact that it's against the law (discrimination) doesn't stop the Catholic Church from doing it, nor does that fact apparently empower the law to do anything about it... i.e. they seem to be above the law. Just because something is unlawful does not mean those with the power to stop it will do so. Sorry, I'm tired and not making much sense (there's a baby in the house these days).  Cry  I'll shut up now as I think we generally agree.
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Kiki1
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« Reply #145 on: April 14, 2010, 12:09:13 AM »

Andmason, it is the probably the intent that needs to be looked at in the first instance. Parliament hasn't done it's best in making many Laws absolute in the first draft.

I disagree on your logic to defining the individuals' marital status within Paragraph 3 as being irrelevant, though I understand where you are coming from. I am pleased though that you have distinguished between individuals and couples as this is fundamental to the way equality within the 2007 Law has been designed.

(And I doubt if the Wilkinson's claiming 'faith made us do it' in a court of law would stand up these days, even in Cookham.)  

If the friends of Ricardo are to initiate a case for discrimination based on sexual orientation, they would have to make
1) a claim of sexual orientation being the basis of refusal by the owners, or
2) a claim the owners perception of their sexual orientation being the basis of refusal.

[I believe 2) is a non-starter as Mr Morgan has confirmed Mrs Wilkinson was notified they were a couple on the doorstep.]

The Wilkinson's would then have to prove they were not discriminating on the basis of sexual orientation by refusing the double bed on the day, and therefore the booking.

In order to dismiss 1),  verifying the visitor books for all previous entries, plus records of all room cancellations since the B+B commenced trading would be required to compile a list of potential clients that may be of similar sexual orientation to Mr Morgan and Mr Black, from a total of both (all ?) orientations.

The need to verify the civil partnership is fundamental in not only improving the odds of a successful prosecution, but in obtaining a hearing in the first place. Without it they risk themselves being dismissed as legitimate claimants since they are not recognised in UK law as a couple in a joint claim for discrimination, despite booking as a couple. They could possibly only persue as individuals.

A) - As a verified couple in a Civil partnership, the B+B would have to prove they were not discriminating against Mr Morgan and Mr Black as a legitimate pair by refusing them a bed. The list of potential entries in the books which might allow the B+B to have the case dismissed is - probably - going to be rather small in this instance, that being the confirmation of a legitimate gay couple booking without quibble. (This could be a male, or female couple).
Additionally the number of any others in wedlock being refused a booking should also be a small number within the total. If any are found in the books the case of discrimination based on orientation would dissolve.  

However since orientation is based on an individual's state of mind, (not on whom they are currently with, who they book rooms with, or who they cannot sleep with), any single person being refused a bed would also need to be included as a potential victim in a discrimination case. Therefore it should be deemed unsafe for any court to assume that only couples (legal or otherwise) booking beds are the sole group that might be at risk.

There is, of course the possibility the Wilkinsons have refused some individuals without knowledge of any partner. (indeed they might have refused single known straight people staying in a single room at some point, but I digress).

Which leads to,

B) - If Mr Morgan and Mr Black are not a couple under UK law, then The Wilkinson's have a far higher chance of case dismissal, through the much larger potential of bookings of gay individuals being accepted at the B+B, and conversely the refusal of straight individuals, plus straight unmarried pairs being given the heave-ho.

The claim of discrimination owing to sexual orientation in path B) also leaves each claimant at a higher risk of being persued individually for costs following the press releases, police intervention and the loss of business to the B+B should one (or possibly both) case(s) be dismissed.

Since the Wilkinson family may, or may not have knowledge of letting in an unmarried couple, the claim by Simes earlier in the thread of a divorcee that booked a bed could be offered in favour of the B+Bs stance owing to the wider range of people they have allowed under their roof.  
« Last Edit: April 14, 2010, 12:57:11 AM by Kiki1 » Logged
Simes
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« Reply #146 on: April 14, 2010, 08:58:35 AM »



Apologies, Simes- I didn't make myself very clear. I was trying to point out that the fact that it's against the law (discrimination) doesn't stop the Catholic Church from doing it, nor does that fact apparently empower the law to do anything about it... i.e. they seem to be above the law. Just because something is unlawful does not mean those with the power to stop it will do so. Sorry, I'm tired and not making much sense (there's a baby in the house these days).  Cry  I'll shut up now as I think we generally agree.

Hi Bertie. Thanks, much clearer. I'm going to get off my "soapbox" & leave it to the legal eagles to battle it out. Andmason gets my vote!! Good luck with the baby!
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Ricardo
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WWW
« Reply #147 on: April 17, 2010, 10:47:15 AM »

By way of a postscript, you might be interested to see our local MP's voting record on this (and other) issue(s):

http://www.theyworkforyou.com/mp/theresa_may/maidenhead#votingrecord Click the word 'votes' to see more detail on each subject.

Not to mention the views of the man who, following a Tory victory, would be our next Home Secretary:

http://www.telegraph.co.uk/news/newstopics/politics/conservative/7550775/Chris-Grayling-Christian-BandBs-should-be-able-to-turn-away-gay-couples.html
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Kiki1
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« Reply #148 on: April 17, 2010, 03:11:56 PM »

Statistics are like a drunk with a lampost. Used more for support than illumination.
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Pongo
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« Reply #149 on: April 18, 2010, 02:17:24 PM »

I am amazed to see Theresa May is moderately against equal gay rights. Also very strongly for the Iraq war and very strongly for replacing Trident. It makes you think. On the other hand I have just had Tony Hill's election literature through the door and it is more like something for a local councillor, what about our hospital, pensioners or pensions even? I am not sure parking charges in Maidenhead are one of my main worries at the moment, compared to the general state of the economy.
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