Prima Facie: US Supreme Court Ruling Protects LGBTQ+ Workers

Nicole Wise, Evgenia Chamilou and Emma Baker

In this series, TLH writers outline a variety of important legal cases in recent weeks and assess their potential impacts.

US Supreme Court rules that LGBTQ+ workers are protected under 1964 Civil Rights Law

In a landmark case, the US Supreme Court has ruled that gay and transgender workers are protected under the Civil Rights Act of 1964. In particular, the Court ruled that the prohibition on discrimination against sex includes protection against discrimination on the basis of sexual orientation and gender identity. This ruling will impact the lives of over seven million people in the U.S. Prior to the ruling, nearly half the states in the U.S. did not have legislation protecting the LGBTQ+ community in the workplace in this manner. Going forward, this means that employees who identify as LGBTQ+ will be able to file suits in federal court, whereas previously they had to rely on various state-level anti-discrimination laws. The 6-3 verdict ruled that, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex”. The ruling dealt with three cases, two regarding sexual orientation and the third, gender identity. The vote in favour of protecting LGBTQ+ rights in the workplace from Justice Neil Gorsuch, who also wrote the majority opinion, came as a shock to many civil rights activists, given that he was nominated by Donald Trump in 2017 to replace the staunch conservative Justice Scalia.

Mastercard Incorporated and others v Walter Hugh Merricks CBE - UKSC 2019/0118 1

The Mastercard dispute has become one of the biggest pieces of litigation recently, and one whereby the Supreme Court conducted a virtual hearing in the face of the disruption brought about by the COVID-19 pandemic. The UK Supreme Court was faced with the issues of: (1) What is the legal test for certification of claims as eligible for inclusion in collective proceedings? and (2) What is the correct approach to questions regarding the distribution of an aggregate award at the stage at which a party is applying for a Collective Proceedings Order (CPO)? This case concerns an application for a CPO to enable the continuation of proceedings brought by the respondent as a proposed class representative for 46.2 million people who, between 22 May 1992 and 21 June 2008, purchased goods and/or services from businesses in the UK which accepted Mastercard debit and credit cards.

The Competition Appeal Tribunal concluded that these claims were not suitable to be brought in collective proceedings and it therefore declined to make a CPO in the case. The Court of Appeal set aside this order and remitted the application for a CPO to the CAT. The appellants now seek permission to appeal to the Supreme Court. After much anticipation, the £14 billion Mastercard case made its passage through the Supreme Court, which will later this year hand down a judgment that is set to substantially impact civil and commercial law.

Changes to legal aid fees deliver another blow for access to justice 

Critics of incoming changes to legal aid fees, including Young Legal Aid Lawyers, have suggested that the changes will greatly hamper access to justice for asylum seekers and migrants. The new standard fees, £627 for an asylum case, and £527 for other cases, will mean that the most vulnerable may be left without legal representation. These rates will prevent firms from taking on more complex cases due to the financial burden, with it being essentially a cut to lawyers’ salaries. The Legal Aid sector has been under a lot of pressure for over a decade, with research by Refugee Action showing that the number of asylum and immigration legal aid providers has more than halved since 2005. 

Judicial review proceeding to be brought against Home Office use of Artificial Intelligence programme

In a first for UK courts, the Joint Council for the Welfare of Immigrants will challenge an AI programme that filters UK visa applications, as it appears to bring about a ‘hostile environment’. The judicial review case will argue on the basis of racial discrimination under the 2010 Equality Act, as the system appears to discriminate against certain nationalities, and operates in an opaque and secretive manner. The group will argue to the court that the tool is unlawful and that its operating should be halted, pending a substantive review of the AI programme. The algorithm is believed to be in use to distinguish visa applications that require more extensive scrutiny by the Home Office.

Court of Appeal ruling outlines fundamental public interest principles in relation to consent

In a judgement made by the Court of Protection in 2019, Mrs Justice Roberts ruled that a 36-year-old autistic man who cannot understand the importance of consent in sexual situations has a “fundamental right to sex.” According to the judge, insisting that the man understand the issue of consent before pursuing sexual relations would have imposed on him a burden “which a capable individual may not share.” Allowing the criminal law to regulate such conduct would lead to an array of cases where incapacitated people will commit sexual offences before the law intervenes to prevent such conduct. 

The Court of Appeal revised this decision on the 11th of June 2020, by a judgment of Baker LJ, establishing three main fundamental principles of public interest which must be balanced out to reach a final judgment. Whilst autonomy and protection of the vulnerable people in society are crucial elements to the decision, this must be balanced with the principle that sexual relations between two persons can only take place with the “full and ongoing consent of both parties”. The understanding of the consensual element of sexual relations should, however, not infringe the incapacitated party’s personal autonomy or rights, unless it is a restriction which applies to everybody in order to protect other members of society. This judgement paved the way for the court to take the view that nothing in the MCA allows the court to decide on behalf of a person to consent to having sexual relations. This decision established the way in which capacity in regard to sexual relations should be assessed in most cases, pressing a “reset button” on a long series of unsatisfactory cases.

Start of Domestic Abuse Bill committee stage

The committee stage of the Domestic Abuse bill was initiated on 4 June 2020. The bill was reintroduced to parliament on 3 March 2020 and passed its second reading on 28 April. During a period where domestic abuse has been increasingly highlighted and exacerbated by the Covid-19 pandemic and the lockdown restrictions put in place, the lack of protection and support for domestic abuse victims has been emphasised. Support services in the UK have reported a sharp surge in calls to helplines, leading to a call for an emergency package of funding for support services for domestic abuse victims by the home affairs select committee. Tackling domestic abuse requires a large response incorporating health, housing, and education. Prevention and early intervention measures must be funded for and put in place through the Bill. This enhanced version of the landmark Domestic Abuse Bill is an important step in breaking the cycle of domestic abuse and stopping the perpetrators from reoffending.