In recent months there have been cases involving potential discrimination where separate protected characteristics (specific aspects of a person’s identity that are protected from discrimination) clash and the courts have effectively to decide which protected characteristic supersedes the other characteristic and which assumes “second place”. Previously, such a situation has involved religion and sexuality, the previous cases involved the refusal of a business to supply services to gay people due to strongly held Christian beliefs by the proprietors. However, the latest situation involves two aspects of the LGBT community.

An incident was recently reported in the press which involved a member of the LGB Alliance, a recently formed group, and a group of transgender individuals. The incident allegedly occurred at the Polo Lounge, a well-known Glasgow LGBT night club, where a complaint against an LGB Alliance member by transgender patrons who objected to her T-shirt bearing the logo of the LGB Alliance and resulted in the LGB Alliance member being asked to turn her T-shirt inside out to hide the logo or, alternatively she would have to leave the club. The LGB Alliance member elected to leave the club. This incident illustrates the complexity of human rights and discrimination law.

LGB Alliance aims to advance the interests of LGB persons whose welfare, according to its website, is seen as being eroded by the transgender community due to the potential confusion between a person’s biological sex and their gender-identification.

The excluded LGB Alliance member felt strongly that the Polo Lounge had breached the Equality Act 2010 in respect of her treatment at the club. The issue is more complex than it appears at first glance. Daniel Theron, a partner at Legal Law Limited’s Glasgow office who regularly advises on LGBT issues, has considered the matter and, after reviewing the LGB Alliance’s website commented, “the LGB Alliance makes no secret of its apparent disapproval of self-identifying gender issues and actively campaigns in this area. The fact that the LGB Alliance member was asked to leave the Polo Lounge could, on the face of it, be argued to be discriminatory if it was because of the member’s sexuality and therefore covered by the Equality Act. But the reports on the incident state that the reason for the LGB Alliance member being asked to leave the club was as a result of the member’s attire and not strictly due to the member’s sexuality. If so, it is highly unlikely to be covered by the Act. In any event, the LGB Alliance may lose the moral high ground as its mission statement in itself appears to be discriminatory given sexual orientation and gender reassignment are specifically covered under the Equality Act 2010.

There is no easy answer to situations where both sides are entitled to be protected against discrimination for reasons that are legally enshrined in law and lawyers and judges who have the task of navigating through such complexities have a challenging responsibility to discharge. Understandably, feelings always run high when an individual believes that they have been unfairly discriminated against and it seems like, in some cases, an almost impossible task to find an answer acceptable to both sides.