Bermuda's Parliament approved a number of changes to the Human Rights Act 1981 ("the Act") in August, the most notable being the addition of sexual orientation to the list of defined characteristics protected from unlawful discrimination.
The Act chiefly restricts or proscribes prejudicial discrimination in relation to disposal of property, public advertisements or notices, contracts for employment, applications for tenancy, services, and goods.
Prior to the change, for example, a café owner could not lawfully refuse service to a customer because of that person's ethnic origin, religion, or family background but could refuse service to a customer because of that person's sexual orientation. The amendment now constrains such discrimination.
Significantly, "sexual orientation" lacks a plain definition in the Act. The term is commonly understood to be an expansive concept, however, and as such its reach may be interpreted liberally. Heterosexuality, homosexuality, bisexuality, and asexuality could all be categorised as orientations. It follows that discrimination against a person or persons on such grounds – or even the suspicion of such grounds – could be impermissible in most situations.
The practical effect of this amendment is to expand the scope of civil rights considerations for most private and public organisations. Many Bermudian clubs and societies need to contemplate whether their constitutions and membership rules exclude homosexuals (or heterosexuals, as the case may be) and the prospective legal consequences of such policies.
Employers should recognise that the new amendment will impact, among other things, the hiring, treatment and dismissal of employees. An employer who refuses to train or advance an employee because of that employee's sexual orientation (or suspected sexual orientation) contravenes the Act, and may be subject to financial penalty should the employee take and prove his or her complaint to a Tribunal.
Landlords, hoteliers, and other purveyors of accommodation will also potentially be caught by the new provision. Although the Act is based on Canadian legislation, it is also a reflection of common law antidiscrimination legislation in other jurisdictions, especially the United Kingdom, and English case rulings will be instructive (but not conclusive) for Bermudian courts.
In two separate cases from Cornwall and London, instances where bed and breakfast owners denied rooms to gay couples were deemed discriminatory, and finished with the Supreme Court dismissing the owners' appeals and ordering compensation to be paid to the complainants.
In one instance, the owners' defence against the claim hinged in part on their religious conviction that only married persons could share a room at their premises; they denied discriminating against the couple because of their sexual orientation. The court ruled against this appeal as the homosexual couple could not enter into a marriage (although they were in a civil partnership) and as such the owners' policy was discriminatory and for that reason invalid.
Subsequent case law will hopefully draw a more distinct line between the freedom of belief of religious persons and organisations and the protection of persons from unfair discrimination. There is little doubt that similar scenarios will occur in Bermuda and a Tribunal's interpretation of the Act will be watched with great interest.
The amendment further encompasses public services and government departments. Transportation staff, for example, may not disallow individual or groups of commuters from using public transport on the basis of their sexual orientation.
However, the amendment does not ban forms of discrimination by certain entities or in particular circumstances. For example, the employment-related provisions of the Act do not apply to exclusively charitable organisations that do not seek private profit; many religious, educational, fraternal and social organisations will therefore be exempt from the amendment inasmuch as their activities fall within those bounds.
In addition, the amendment does not legally recognise same-sex couples who married or entered civil partnerships elsewhere, nor does it provide them with the same property-holding rights or options as married Bermudians.
The latter points raise as many social and political questions as they do legal issues, and it is not the province
of judges or tribunals to decide them in the absence of firmer guidelines from Parliament. While we may be guided by the trails left by other jurisdictions, this is still unfamiliar territory for Bermuda, and human rights law will continue to attract much media and scrutiny as it develops in our jurisdiction.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
