Two local lesbians have failed in a legal bid to convince Gibraltar’s highest court that Government housing policy discriminates against homosexual couples.

The Court of Appeal ruled that the Gibraltar Government was legally entitled to protect the ‘traditional family’ by favouring heterosexual married couples in the allocation of state-owned housing.

 

For now at least, the decision brings to a close a case that could have set a landmark precedent for gay rights in Gibraltar.

But the judgement yesterday fell short of an unequivocal victory for the Gibraltar Government.

Among the three senior UK judges who heard the appeal case, there was one clear

voice of dissent.

Sir William Aldous agreed with the couple and went as far as describing the Government policy as “illegal”.

The case dates back over three years and stems from a decision by the Housing Allocation Committee to refuse the couple joint tenancy of a Government flat, even though the women were in long-term, monogamous and loving relationship.

Under local law, only parents, spouses and children can be included in a Government tenancy agreement.

Lawyers said that left the two women at a disadvantage because, unlike heterosexuals, they could not marry and had no way of meeting the criteria for joint tenancy of a Government-owned flat.

Last December the Supreme Court rejected claims that the refusal amounted to a breach of the couple’s fundamental Constitutional and human rights.

Acting Chief Justice Anthony Dudley 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.

The couple appealed the decision but yesterday the Court of Appeal agreed, by a majority of two to one, with Mr Justice Dudley.

In a 33-page judgement, Sir Paul Kennedy said that “…the preference which (the Government policy) gave to married couples was a positive preference of a kind which the law regards as acceptable in circumstances such as these, and which did not require further justification.”

He was backed in that view by Sir Murray Stuart-Smith, the President of the Court of Appeal, who said that marriage was widely accepted in legal precedent as an institution that conferred particular status.

“There is no analogy between married couples and couples who remain unmarried, whether by choice in the case of heterosexual couples or because they are unable to marry in the case of homosexual partners,” he said in his five-page ruling.

“The protection of the ‘traditional family’ is in principle a legitimate aim of domestic legislation.”

But Sir William, the third judge on the bench, dissented.

While he accepted that a Government could give preference to married couples, he said local housing policy also allowed for some circumstances where unmarried heterosexual couples could be granted joint tenancy.

But there were no such exceptions in the case of homosexual couples.

“The policy always excludes applications from same sex couples whereas different sex couples, depending upon circumstances, can succeed,” Sir William said in his 10-page judgement.

“The treatment is different and discriminatory because it is dependent on sex.”

He added: “In my view the allocation policy that was applied in this case is illegal.”

“It discriminated against same sex couples.”

Lawyers for both the Government and the couple reserved their positions yesterday.

Although the Government could in theory chase costs, this is unlikely because the couple were funded publicly through the legal assistance scheme. The Government would, in effect, be chasing costs from itself.

The lesbian couple was represented in the appeal 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.