The gay cake controversy in the United Kingdom and Italian inertia
| DOI | http://doi.org/10.1177/1023263X231158488 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Articles |
The gay cake controversy in the
United Kingdom and Italian
inertia
Vito Breda* and Matteo Frau**
Abstract
In Lee v. United Kingdom, the European Court of Human Rights left gay people partially unpro-
tected against discrimination in commercial transactions in the United Kingdom and, by analogy,
in other legal systems, such as the Italian system, where such protection is absent. In this article, it
will be argued that the lack of substantive engagement by the European Court of Human Rights
should be considered a missed opportunity for the development of European legal systems that do
not grant full anti-discrimination protection to gay people.
Keywords
UK law, Italian law, EU law, LGB rights, discrimination based on sexual orientation, Lee v. Asher,
Lee v. United Kingdom
Introduction
On 9 January 2022, the European Court of Human Rights (ECtHR) rejected Mr Lee’s appeal.
1
The
ECtHR did not discuss the claim made by Mr Lee that the UK law engaged Articles 8, 9 and 10 of
*
School of Law and Justice, University of Southern Queensland, Toowoomba, Australia
**
Department of Law, University of Brescia, Brescia, Italy
Corresponding author:
Vito Breda, School of Law and Justice, University of Southern Queensland, Toowoomba, 487-535 West St, Darling Heights
QLD 4350, Australia.
E-mail: Vito.Breda@usq.edu.au
1. ECtHR, Lee v. United Kingdom, judgment of 6 January 2022, Application No. 18860/19, para. 68–75. ‘It is axiomatic
that the applicant’s Convention rights should also have been invoked expressly before the domestic courts, even if the
alleged breach was contingent on the outcome of their assessment […] the Court considers that the applicant has failed to
exhaust domestic remedies in respect of his complaints under Articles 8, 9 and 10 of the Convention, read alone and
together with Article 14. Accordingly, these complaints must be rejected as inadmissible pursuant to Article 35 §§ 1
and 4 of the Convention’(ibid., para. 78).
Article
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(6) 708–725
© The Author(s) 2023
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DOI: 10.1177/1023263X231158488
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the Convention because Mr Lee failed to exhaust domestic remedies.
2
During the domestic proceed-
ing, the ECtHR noted, quite rightly, that the applicant did not refer to his Convention rights during
the review of his claim in the UK domestic courts.
3
That is not to say that Mr Lee’s claim was void,
but there are no sufficient indications that British courts could review or balance Mr Lee’s or the
McArthurs’Convention rights. This is unfortunate for many reasons.
4
The lack of a ruling, for
instance, indicates the possibility that service providers in signatory states such as Italy can discrim-
inate against individuals by association based on their sexual preferences.
5
This stance is, it will be
explained, antithetical to a general principle of non-discrimination deduced from the Convention,
Article 21 of the Charter of Fundamental Rights of the European Union (CFREU)
6
and Article
19 of the Treaty on the Functioning of the European Union (TFEU).
7
It is also conducive to undig-
nified working conditions for gay people. For instance, an Italian business whose recruitment pol-
icies cannot be discriminatory based on sexual preference might mandate its gay employees to
refuse services to lesbians.
8
This article will argue that it is an incoherent state of affairs that is
out of tune with the equality principle that ought to support a modern European legal system.
Most EU legal systems have eliminated all discriminatory legislation against gay people.
9
Yet, a
few legal systems, including the Italian legal system, allow discriminatory practices to linger.
10
Italian businesses outside of cases in which service providers are dealing with an individual with
protected characteristics (for example, gender and race) can select with whom they decide to
form a contractual relationship.
11
The Constitution provides a list of protected characteristics that
might limit such freedoms. This includes linguistic minorities (Article 6), religious associations
2. Ibid., para. 69.
3. Lee v. Ashers Baking Company Ltd and others [2018] UKSC 49.
4. L.R. Helfer and E. Voeten, ‘International Courts as Agents of Legal Change: Evidence fromLGBT Rights in Europe’,68
International Organization (2014).
5. M. Connolly, ‘The “Associative”Discrimination Fiction: Part 1’,72Northern Ireland Legal Quarterly (2021), p. 29–60;
M. Connolly, ‘The Myth of Associative Discrimination and the Court of Justice’s Great Vanishing Act: Part 2’,72
Northern Ireland Legal Quarterly (2021), p. 510–541.
6. The CFREU [2012] OJ C 326/391 and the related Article 6 of the Consolidated version of the TEU [2008] OJ C 115/1
and the TFEU [2012] OJ C 326/1.
7. Consolidated versions of the TEU and the TFEU [2016] OJ C 202/1; Directive 2000/43/EC of the Council of 29 June
2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, [2000] OJ L
180/22.
8. Note that the issue of demanding employees to discriminate against gay people in service sector has been squarely
engaged by the UK’s Employment Appeal Tribunal (EAT) in Lisboa v. Realpubs Ltd & Ors [2011] 1 WLUK 52,
para. 26. The EAT considered the case, among other elements, as an instance of discrimination by association.
9. For a recent review of the effects EU law in altering anti-discrimination law see: L.R. Helfer and E. Voeten, 68
International Organization (2014). An analysis of the debate over marriage equality is also in D.V. Kochenov and
U. Belavusau, ‘After the Celebration: Marriage Equality in EU Law Post-Coman in Eight Questions and Some
Further Thoughts’,27Maastricht Journal of European and Comparative Law (2020), p. 549, 555. For a recent
general review of the level of protection granted to gay people across Europe and beyond, see: ILGA-Europe’s
Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe and
Central Asia (ILGA-Europe, 2022).
10. ILGA-Europe’sAnnual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and IntersexPeople in
Europe and Central Asia, p. 80. See for instance: A. Tryfonidou, ‘Case C-507/18 NH v Associazione Avvocatura per i
Diritti LGBTI –Rete Lenford: Homophobic Speech and EU Anti-Discrimination Law’,27Maastricht Journal of
European and Comparative Law (2020).
11. D. Maffeis, ‘Libertà Contrattuale e Divieto Di Discriminazione’,2Rivista Trimestrale di Diritto e Procedura Civile
(2008), p. 401–408.
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