ANDRE BAGOO
ON THE provisions of the Equal Opportunity Act 2000 which authorise teachers, lecturers, employers, contractors, businessmen, store attendants, landlords, taxi drivers and more to discriminate against gay people wilfully, the Court of Appeal had something to say a few weeks ago.
'The astuteness of that policy is a matter for the wider community and the court of public opinion,' said Justice of Appeal Nolan Bereaux. 'It is no concern of this court.'
The case involved was a simple one. Before the justices were facts which suggested an openly gay man was hounded out of his job. The man alleged his female boss on several occasions inappropriately touched him while calling him 'sexy,' 'hot' and 'bae.' After complaining to upper management, he was fired. He filed a complaint under anti-discrimination law.
All the players involved in this matter had to grapple with the anomaly of an anti-discrimination law that asks claimants to erase their sexual orientation when filing a complaint. The act stipulates gay people are not protected by its provisions.
In April, as it ruled on this case of a gay man being victimised, the Court of Appeal insisted, among other things, that sexuality was not at the heart of the man's grievance. It was rather the 'treatment' to which he was subject that grounded the case, as per British case-law precedent. Sexual orientation was tangential, a merely inconvenient detail.
It is hard to imagine a set of facts in which sexuality might not have been more relevant.
Imagine a fictional scenario: A straight boss at work discovers you're gay. They decide to force you out. They engage in a campaign of harassment to do so. They deliberately make passes at you in front of your co-workers repeatedly, knowing full well you will never reciprocate. Such a course of action is not only grossly inappropriate, but it also places your sexuality centre stage in a work environment in a demeaning way. You complain. No action is taken. You quit. Mission accomplished, from the perspective of the boss who wished you gone.
The Court of Appeal would, based on the posture taken in its recent ruling, seem to believe that it is okay for such discriminatory behaviour to occur. Judges should turn a blind eye because Parliament has, in its wisdom, decided not to protect gay people.
But when it comes to the rights of those identified as a 'minority,' it cannot be that their fate lies exclusively in the hands of the majority. That is the abhorrent outcome of leaving human-rights matters solely for the determination of a parliament, which by its nature is an organ of majority rule. Such is the ungodly implication of a seemingly innocuous policy of narrow legal interpretation.
Around the world, the argument that judges should only parse statutes literally or else should avoid purposive interpretation is an old one. What is overlooked by those who advance it, however, is the fact that the idea of rigidly sticking to a literal interpretation of legislation is, on its own, a value.
Doggedly stick
