Five top British judges have found that housing officials in Gibraltar’s ‘indirectly’ discriminated against a lesbian couple by refusing them joint tenancy of a government flat.

The landmark ruling by the Judicial Committee of the Privy Council, the highest British court for Gibraltar, represents a significant triumph for gay rights in Gibraltar.

It will ensure that in future, homosexual couples in long term stable relationships will be able to access the protection offered by joint tenancy of publicly-owned flat.

The Gibraltar Government had defended the original decision by the Housing Allocation Committee on the grounds that it aimed to protect the traditional family structure of husband, wife and children.

But the judges rejected that argument as irrational and said that denying benefits to people who cannot marry did not protect those who can.

Equality rights campaigner Felix Alvarez, chairman of the GGR, said the judgement would encourage other homosexuals to challenge other instances of discrimination in Gibraltar.

“The judgment is very good news for the gay and lesbian community in Gibraltar,” he said.

“It is a major victory which opens up possibilities for progress and success on the road to equal treatment.”

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

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

That left the two women at a disadvantage because, unlike heterosexuals, they could not marry and meet the criteria for joint tenancy.

The couple, funded by the public purse, had unsuccessfully challenged the housing committee’s decision in Gibraltar’s courts before taking it to the Privy Council in London last October.

“The appellant and her partner have been denied a joint tenancy in circumstances where others would have been granted one,” the Privy Council board said in its 13-page judgement, which was published yesterday.

“They are all family members living together who wish to preserve the security of their homes should one of them die.”

The judgement added: “They will never be able to get married or to have children in common [and] that is because of their sexual orientation.”

“Thus it is a form of indirect discrimination which comes as close as it can to direct discrimination.”

In reaching this conclusion, the Privy Council board said it was not seeking to dictate to the Housing Allocation Committee exactly what its policy should be. But it should be “…a policy which does not exclude same sex partners who are in a stable, long

term, committed and inter dependent relationship from the protection afforded by a joint tenancy.”

The judgement does not oblige Gibraltar to introduce same sex marriage or civil partnerships.

But the judges noted that enabling homosexual couples to formalise their relationships” would enable the authorities to continue to grant privileges to those couples who had chosen to enter an officially recognised status and to deny them to those who had declined to do so.”

The five judges who heard the appeal at the Privy Council were Lord Phillips, Lady Hale, Lord Collins, Sir Jonathan Parker and Sir Henry Brooke.

The couple were represented by Rabinder Singh, QC, Karon Monaghan, QC, Professor Aileen McColgan and Gibraltar barrister John Restano, a partner at Hassans.

The Gibraltar Government’s Ministry for Housing and the Housing Allocation Committee were represented before the Privy Council by James Neish, QC, and Michael Llamas.