In 1998, Cherie Booth represented Lisa Grant and Jill Percy in a discrimination case against South West Trains. The pair, who were long-term partners, were not granted the same travel perks as heterosexual employees of the company. Booth argued that discriminating on the grounds of sexuality was as unlawful as gender discrimination. The Human Rights Act was not in force. The case was lost.
Last week, in her role as a human rights lawyer, with her own special set of chambers to deal with human rights issues, Booth's approach was different. She was arguing that sexual orientation is not a human rights issue, and that homosexuals who are abused because of their sexuality, have no remedy under the law.
If lesbians were foxes, it might be different. This is just a woman hounded out of her job. And not even a woman, according to Booth, who maintained in court that the Sex Discrimination Act protects women but not lesbians.
Can we get this straight? Only a woman can be a lesbian but lesbians are not women? If kids pour cat food into your coat and shout "Pussy", that has nothing to do with being a woman. Yells of "lezzie" and "dyke" are because you are queer, not because you are female. It seems that the law is seeking to confirm the prejudices of homophobes everywhere - that lesbians are not "real" women.
A "real" women is one sexually available to men - though I am not sure where this leaves nuns. The definition of a "real" man, is not a man sexually available to women, but one who knows where his loyalties lie - that is, with other men. Queer or not, he bonds with and maintains the power structures that privilege men above women. This is why many gay men can live without difficulty in the world. The ones who do get into trouble are the ones who expose the system in some way, either by effeminacy or cross-dressing or outspokenness, or deliberately identifying with women. Such men are a threat in the way that all lesbians are a threat: they upset the pecking order.
Shirley Pearce had taught science at Mayfield school in Portsmouth for 15 years. She had a good record and was a dedicated career teacher - just the kind the government is desperate to keep. In 1990, very privately, she started visiting gay clubs. In a small town word soon gets out and the trouble at school began.
She put up with this for five years, with little help from her colleagues or her boss. We all know what kids can be like - they gang up, and they pick on outsiders. Part of the role of education is to lead children out of this kind of tribal behaviour. Victimising difference is a bad model for adulthood. You need not be a supporter of gay rights to understand that tolerance is essential for multi-cultural city life - the life that most people will be leading in the 21st century. Love thy neighbour becomes more urgent when we cannot avoid her.
Shirley Pearce was told by her head teacher to "grit her teeth". She was advised to take leave of absence on health grounds and, finally, she resigned. An industrial tribunal and an employment appeal tribunal both dismissed her case. Now Stonewall, the equal rights group, is supporting her in the courts.
Laura Cox, QC, defending, and Booth, for the school, have tied themselves up in knots over the case because there is no law. Cox is using Booth's old line that sex includes sexuality, with the added kick that none of this could have happened to a gay man because abuse is gender specific. Booth argues that the school had no duty to protect Pearce. Mayfield may not have acted well, but it acted legally.
Whatever happened to natural justice? No one should be discriminated against because they are different. If we don't have a law against it, let's draft one now and stop wasting time and money and ruining lives, while lawyers swank about practising their rhetoric.
In Britain we prefer case law to legislation. "Meaning is use" as Wittgenstein put it. The question is whether legal interpretations are keeping up with what is happening in society. One of the things happening is that gay people no longer want to live in the closet or have cat food thrown at them when they come out.
The law is going to have to recognise gay rights, including partnership, taxation and employment issues. Many thought Labour would encourage this change, but what is the meaning or the use of a Human Rights Act, when one of its architects, also the wife of the prime minister, argues that it does not apply to lesbians?
