Banning 'gay cure' posters on London buses was not unlawful, a High Court judge ruled on Friday, but suggested two prominent campaigns, one by Stonewall and one by atheist campaigners should also not have been allowed because of their offensive nature.
Dr Mike Davidson, of Core Issues Trust, designed posters based on Stonewall’s "Some people are gay. Get over it!" to be put on London red buses.
His posters read: “Not Gay! Ex-Gay, Post-Gay and Proud. Get over it!".
Mrs Justice Lang ruled the advert would "cause grave offence" to those who were gay and was perceived as homophobic, "thus increasing the risk of prejudice and homophobic attacks".
The Core Issues Trust had argued that adverts Christians might find offensive, like the Stonewall one and the British Humanist Association's 'There's Probably No God. Stop Worrying And Enjoy Your Life' posters were allowed by TfL.
And Mrs Justice Lang also mentioned in the judgment that advertisements by the Trust, Stonewall, and the BHA could all have breached TfL's equality duties.
The judgment has worried some anti-censorship campaigners. “There must be a concern with cases like this that controversial opinions can be removed from public discourse, narrowing what people can and cannot discuss as a society,” Index On Censorship's Pádraig Reidy told HuffPost UK.
The adverts "were all skilfully designed to deliver a short, sharp shock to the public. Their wording was confrontational."
She said that European human rights law found "reasoned debate" to be "more deserving of protection under Article 10 than slogans and abusive messages."
"I consider that there is force in the Trust’s submission. The advertisements by the British Humanist Association and Stonewall did not comply with TfL’s own restrictions which prohibit advertisements 'likely to cause widespread or serious offence' or which 'relate to matters of public controversy or sensitivity'.
"Both advertisements were in the form of confrontational assertions which made no contribution to a reasoned debate.
"The British Humanist Association advertisement was highly offensive to the religious beliefs of the significant section of the public who believe in God.
"The Stonewall advertisement was highly offensive to fundamentalist Christians and other religious groups whose religious belief is that homosexuality is contrary to God’s teachings.
"TfL sought to justify the Stonewall advertisement on the grounds that it furthered TfL’s objectives under the Equality Act, but declined to provide any detail about the basis of the decision.
"I doubt whether this confrontational advertisement did anything to 'tackle prejudice' or 'promote understanding' among homophobic people. It was more likely to spark retaliation, as indeed it did in the case of Anglican Mainstream and the Trust."
Andrew Copson, chief executive of the BHA which ran the Atheist Bus Campaign told HuffPost UK: "Everything offends someone somewhere but when an English judge is moved to deem our mild and humorous Atheist Bus Campaign as "offensive" then the law is clearly setting the bar of offence ludicrously low.
"The judge said that our saying 'there is probably no god' will have offended people who believe the opposite.
"That assumes that people are automatically offended by others saying things they don't believe themselves. But this isn't offence - it's disagreement - and trying to suppress it in the public sphere is inimical to the maintenance of a free society. There are good reasons to ban some adverts but offence is not one of them.'
Elaborating on what might be a good reason to ban an advert, Copson said: "A good reason is if an advert makes false claims which are dangerous to the health of the public, such as that homosexuality is a condition which can be cured or that people with life threatening diseases should pray instead of taking medicine - both claims that have been made in adverts which have been banned."
Dr Davidson said he was determined to appeal, even all the way to the highest court in Europe.
He told HuffPost UK: "The European Court Of Human Rights is a long journey, which would need an awful lot of support for us to get there. We couldn't do it on our own, but if we get the means, we have the will, because it is very, very important. It is important for ex-gay people, and people who want to keep that option open.
"There's clearly a recognition that there's a problem with advertisements that offend people. We wish the actual outcome had been different. But it has raised the debate, in that we have been successful."
The judgment was also critical of TfL's process, Justice Lang ruled that TfL's process in introducing the ban "was procedurally unfair, in breach of its own procedures and demonstrated a failure to consider the relevant issues".
She did not conclude that Johnson was politically motivated by introducing the ban during a fevered Mayoral election campaign, something which Core Issues Trust had argued.
Ben Summerskill, the chief executive of gay rights group Stonewall said many would be pleased by the High Court's decision. "Had these voodoo 'gay cure' adverts appeared in the pages of the Spectator or the Daily Telegraph it's unlikely there would have been complaints.
"But in a city where over half of gay young people face bullying at school, and where tens of thousands of gay people are subjected to hate crimes every year just because of the way they were born, it's perfectly proper for a mayor to object to the use of such advertising in an iconic public setting."
Dr Davidson said he believes the ruling shows that "Boris Johnson appears to want to promote the rights of some minorities but not protect the rights of other minorities."
Ultimately, he hopes to force a change in the law, recognition for so-called 'ex-gays.'
"Human rights law and the equalities act protects homosexuals, heterosexuality and bisexuals, a traditional binary view of sexuality. It doesn't recognise where ex-gay people are on the spectrum.
"That law forces people to take identities onto themselves that they don't want to own. Transsexuals have recognition, why not us?"
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