Acting Chief Justice Anthony Dudley yesterday ordered the Housing Allocation Committee to reconsider its decision to refuse a lesbian couple joint tenancy of a Government flat. His judgement provided hope to the two women in their specific case but did little to advance the cause of gay rights in Gibraltar, as many supporters had hoped.
Lawyers for the two women had argued that they were being discriminated against because of their sexual orientation.
But the judge rejected claims that the refusal amounted to a breach of the couple’s fundamental Constitutional and human rights.
He also dismissed a separate argument that a same-sex couple should be afforded equality under common law to a married couple of the opposite sex.
Justice Dudley said there were divided views on this point all across Western Europe and that it was beyond his remit to rule on it.
“When and what status is to be afforded to these relationships is not for this court to determine but for the legislature,” he said.
In a 23-page judgement, Justice Dudley noted that the Gibraltar Government’s Housing Allocation Committee had ‘fettered’ its decision-making process.
He said the committee had restricted itself by sticking strictly to unwritten policies without adequately considering the use of discretion in light of the circumstances.
“Policy of itself cannot result in rigidly excluding an alternate outcome in a deserving case,” the Judge said.
“Indeed…at least on one occasion the Committee must have deviated from their policy because there is a same sex couple who enjoy a joint tenancy.”
He later added: “The [Committee’s] decision refusing the application for a joint tenancy is quashed and I remit the matter for it to reconsider and reach a decision in accordance with my findings.”
If the Committee approves the application, then the case will come to a close.
If it refuses joint tenancy again, then the matter – including the points of Constitutional law – will almost certainly end up before the Court of Appeal.
The lesbian couple was represented in this case by veteran human rights lawyers Rabinda Singh QC and Karon Monaghan QC, and by local barrister John Restano.
The Gibraltar Government was represented by James Neish QC and Michael Llamas.
Equality rights group GGR, which also participated in the proceedings, was represented by barrister Jamie Trinidad.