Legal update: UK Supreme Court held no discrimination by bakery shop not producing cake with “Support Gay Marriage” message

The recent judgment handed down by the UK Supreme Court in the case of Lee v Ashers Baking Company Ltd & Others [2018] UKSC 49 (“Lee”) provided some important guidance concerning direct discrimination and how other competing rights should be weighed.

In Lee, Mr. Lee asked Ashers Baking to make a cake with “Support Gay Marriage” as headline message. The owners of Ashers Baking refused to do so due to their religious beliefs. Mr. Lee argued that he was discriminated against by the bakery on the grounds of his sexual orientation and political opinions. The Supreme Court overruled the lower courts’ decisions and decided that there was no discrimination on any of the protected grounds claimed by Mr. Lee.

In respect of sexual orientation discrimination (which is not applicable in Hong Kong), the Court considered that the bakery’s refusal was because of the message it was asked to put on the cake as opposed to the sexual orientation of Mr. Lee.

The Court elaborated its reasoning when dealing with the arguments concerning “associative discrimination”. It disagreed with the view of the lower court that because the message had something to do with the gay and bisexual community, the less favourable treatment accorded to Mr. Lee could be regarded as being based on his sexual orientation. The Court found that the bakery’s objection to the message of the cake was of insufficient connection to the sexual orientation of Mr. Lee. In other words, anyone, regardless of his/ her sexual orientation, would have received the same treatment from the bakery if he or she had ordered a cake with the same message as requested by Mr. Lee.

As to discrimination on the ground of Mr. Lee’s political opinion, the Court found that this part of the claim to be more arguable as the message on the cake was more closely linked to the opinion Mr. Lee wished to promote.

The Court thus turned to consider issues relating to the right to freedom of religion and freedom of expression under Articles 9 and 10 of the European Convention on Human Rights (“ECHR”) respectively. It concluded that these rights were engaged in this case, but they should not be qualified to the extent that goods, facility or service providers would be compelled to express a message which they object to unless justification is shown.

Although the four anti-discrimination Ordinances in Hong Kong do not offer protection over the same protected characteristics as claimed in Lee’s case, recent judicial review challenges concerning spousal benefits of local same-sex couples show that the right to equality could be asserted in the realm of public law. In this sense, and given that the types of freedom guaranteed under the Hong Kong Bill of Rights Ordinance are similar to those of the ECHR, the most significant impact of Lee on the local jurisprudence perhaps is that it established a standard of reference to which Hong Kong Courts may look at when balancing competing rights in discrimination claims.

Russell Bennett / Mark Chiu

If you would like to discuss any of the matters raised in this article, please contact:

Russell Bennett
Partner | E-mail

Mark Chiu
Solicitor (former in-house counsel at the Equal Opportunities Commission) | E-mail

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.