When do anti-discrimination laws supposedly intended to stamp out injustice against individuals and minority groups on grounds of race, sexual identity or religious belief, actually start to create injustice?

One of the things European liberals and social democrats pride themselves on is how they have challenged what they regard as prejudice and bigotry. In particular, they have been prepared to use the law to fight injustices such as gender inequality and discrimination against individuals and minority groups on grounds of race, sexual identity or religious belief. But from time to time legal cases turn up which lead others to ask whether the use of the law in these areas really does promote justice or actually creates injustice.

This week two very different cases have raised such doubts. In one instance the European Court of Justice has made a ruling concerning gender discrimination in the insurance industry. In the other the high court in England has ruled on the case of a Christian couple prevented by their local council from being foster parents because of their belief that homosexual lifestyles are unacceptable.

The European Court of Justice is the highest legal authority in the European Union (and completely different from the European Court of Human Rights which is independent of the EU and has caused some controversies of its own recently). The ECJ has issued a prohibition on gender discrimination in the insurance industry.

Up to now insurance companies have taken into account statistical evidence of the different behaviour between men and women in assessing risk and therefore in setting insurance premiums. For example, young women are likely to drive more cautiously than young men and so are less liable to be involved in accidents that lead to insurance claims. As a result, their premiums have been lower. Similarly, because women live longer than men they have had to pay more for pension annuities because the insurance companies knew that they were likely to have to pay out these annuities for longer.

The ECJ has said this must stop. This means that younger women will have to pay more for their car insurance and men will have to pay more for their pension annuities even though their benefits in each case will remain the same.

Supporters of anti-discrimination laws are unlikely to be unduly bothered by this ruling. They will say that the whole point of insurance is to even out risk and that the ruling will promote a more equal society. But others are saying that the judgement is simply irrational. However much it may be desirable to counter discrimination between the sexes, they argue, some differences are just facts of life and we should live with them rather than try to iron them out through the law.

In the other case, the high court ruled that Derby City Council was within its rights to disqualify Eunice and Owen Johns, a couple in their sixties who have fostered children in the past, from fostering any more because their Pentecostal Christian beliefs mean they are not prepared to tell a child that a ‘homosexual lifestyle’ is acceptable.

The case had been brought by a group of Christian evangelicals, led by the Christian Legal Centre, which had argued that their supporters should not be bound by equality regulations that cut against their religious conscience.

The judges in the case said: 'No one is asserting that Christians (or, for that matter, Jews or Muslims) are not ‘fit and proper’ persons to foster or adopt. No one is seeking to de-legitimise Christianity or any other faith or belief. On the contrary, it is fundamental to our law and our way of life that everyone is equal before the law and equal as a human being … entitled to dignity and respect'. But they could not be exempt from the law.

Others see the ruling as discriminating against religious belief. Mr and Mrs Johns said they were perfectly ready to give a home to a child who might turn out to be gay. Nor were they wanting to assert the right to indoctrinate a child in their own beliefs. It was simply that, out of religious conscience, they were unable actively to endorse homosexuality as acceptable as they were now being required to do to be foster parents.

To some, the case has parallels with another prominent recent case in which a Christian couple running a guest house in Cornwall were successfully prosecuted for refusing to provide accommodation to a gay couple seeking to share a room. Their defence had been that their Christian beliefs prevented them from allowing any couple that were not married from sharing a double-bedded room. But their refusal was ruled to be discriminatory against homosexuals. Their supporters said they were being forbidden by law from running their business according to their religious beliefs.

In general, opponents of the use of the law to fight discrimination tend to argue that it is simply too blunt an instrument. The law of unintended consequences means that injustices are bound to follow. Why should a loving and conscientious couple be stopped from fostering children just because they happen to hold views that were the norm for most of their own lives? And the use of the law in this way produces absurd inconsistencies too, it’s argued. If it is so important to protect children from foster parents who do not regard homosexuality as being as acceptable as other ‘lifestyles’, then why should not all children be so protected, including from the many natural parents who may hold this view?

Others are prepared to acknowledge that there is a role for the law in fighting discrimination but argue that, as with everything else in life, a balance has to be struck and judgement applied. For example, they might argue, it is now generally accepted that it would be simply wrong for a hotelier to turn away a guest because he is black or a Jew or Muslim or gay and there should be laws to prohibit such behaviour. But whether a hotelier should actually be prosecuted for doing so is another matter. In some cases maybe he should be; in others, maybe not. But, they might say, it seems oppressive to prosecute a Christian couple who sincerely hold what to many other people seems just a cranky notion these days, that only married people should be able to share a bed in their hotel. The market, not the law, should determine what happens to them.

But supporters of anti-discrimination laws argue that it is only by having such legislation and being ready to bring prosecutions in line with them that progress can be made. The law acts to deter behaviour and steer opinion. It is only because we have laws in place that women are gradually becoming equal with men, that being gay is no longer the social stigma it once was and that the days when landlords could put signs in their windows saying ‘No niggers’ are now truly in the past.

What’s your view?

  • Do you think anti-discrimination laws are more a force for good or bad?
  • What do you make of the ECJ ruling on gender discrimination in the insurance industry?
  • Do you think it right or not that the law should support councils in refusing to allow Christians who deny the acceptability of homosexuality to become foster parents?
  • Should the Cornish hoteliers who turned away a gay couple have been prosecuted or not?
  • Do you think anti-discrimination laws should be extended or curtailed?
  • And if you could make one change to the law regarding discrimination, what would it be?
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