Press reports today record that a local franchisee of company “Kwik Kopy” declined a request to print posters for an event associated with the “World Pride” events happening in Sydney at the moment- see this report from Nine News. The World Pride events are in effect an extension of the Sydney “Gay and Lesbian Mardi Gras” parade which has been running for many years, although extended over 17 days. Their website refers to it as “a glittering celebration for the global LGBTQIA+ community”. 

But, of course, not everyone is on board with an event celebrating sexual activity outside heterosexual marriage. Mr Wing Khong, a Christian man who runs the Sydney CBD franchise of Kwik Kopy, declined to accept an order from Skater Leo Bunch, who emailed to ask for a quote to print “roller derby” flyers with a World Pride theme. Mr Khong commented:

“There was no offence meant. Everyone is entitled is to their own position. I don’t believe it was discrimination, rather I was just obeying the Word of God.” 

The news report linked above contains video comments from the reporter and also Anna Brown, from Equality Australia, that Mr Khong’s action was “clearly unlawful”. With respect, I beg to differ, and would like to explain why.

It is true that the Sex Discrimination Act 1984 (Cth) does make it unlawful to deny provision of goods or services on the basis of a potential customer’s sexual orientation:

SEX DISCRIMINATION ACT 1984 – SECT 22

Goods, services and facilities

                   It is unlawful for a person who, whether for payment or not, provides goods or services… to discriminate against another person on the ground of the other person’s … sexual orientation: 

                     (a)  by refusing to provide the other person with those goods or services…

The SDA in s 5A(1) says that “discrimination” occurs when the alleged discriminator “treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different sexual orientation.”

Here the question arises, then: would the printer have treated another customer differently in “circumstances that are the same”? I have no personal knowledge of the parties involved in this case, but let’s assume that the printer, if approached by someone who was heterosexual who also wanted a Pride poster, would also have declined to provide one, on the basis that the poster expresses support for sexual activity that is contrary to the Bible. On that basis, then there is at least a plausible argument that the printer’s action has not been unlawful!

This argument assumes that one can distinguish between declining to provide a service of printing because of the sexual orientation of the customer, and declining to provide this service on the basis of the message designed to conveyed by the customer. And as it turns out, an important decision of the UK Supreme Court holds that this is a perfectly valid distinction.

In Lee v Ashers Baking Company Ltd [2018] UKSC 49 the court ruled that a Northern Ireland baking firm, Ashers, run by a Christian couple, who had declined to provide a custom cake featuring Ernie and Bert from Sesame Street, arguing for the introduction of same sex marriage, were not guilty of sexual orientation discrimination. Lady Hale, giving the judgment for the court, commented:

[22] The District Judge did not find that the bakery refused to fulfil the order because of Mr Lee’s actual or perceived sexual orientation. She found that they “cancelled this order because they oppose same sex marriage for the reason that they regard it as sinful and contrary to their genuinely held religious beliefs” (para 43). As the Court of Appeal pointed out, she did not take issue with the submission that the bakery would have supplied Mr Lee with a cake without the message “support gay marriage” and that they would also have refused to supply a cake with the message requested to a hetero-sexual customer (para 11). The objection was to the message, not the messenger.

[2018] UKSC 49, at [22], per Lady Hale

(You can read a fuller account of this case in this previous blog post.)

It is worth noting that different views have been taken by some US courts on this question, which has arisen a few times in relation to wedding cakes or floral arrangements. The US Supreme Court did not resolve the issue in its decision in Masterpiece Cakeshop, Ltd v Colorado Civil Rights Commission, 584 U. S. ____ (2018) (see my comments on that case here), but interestingly it has now heard argument on a more recent case which will probably address the issues. In 303 Creative LLC v Elenis (argued on Dec 5, 2022) a Christian who provides web-design services for weddings, Lorie Smith, is seeking a ruling that she would not be required to provide this service for same-sex weddings.

There is even a decision from Canada which is somewhat similar to this case: Ontario (Human Rights Commission) v Brockie (2003) 222 DLR (4th) 174, a decision of a 3-member bench of the Ontario Superior Court of Justice (Divisional Court). The court upheld a decision of a lower Board that Mr Brockie was guilty of sexual orientation discrimination by declining (on religious grounds) to provide letter-head and business cards to a gay and lesbian support group. But the judges, taking into account rights of religious freedom protected under Canadian law, held that the order requiring him to provide printing services should be carefully drawn up so as not to require him to print publicity for events that would contradict his beliefs. They said:

[56] The objectives under the anti-discrimination provisions of the Code must be balanced against Mr. Brockie’s right to freedom of religion and conscience. A few hypothetical situations may serve to illustrate the tensions between competing rights. If any particular printing project ordered by Mr. Brockie ( or any gay or lesbian person, or organization/entity comprising gay or lesbian persons) contained material that conveyed a message proselytizing and promoting the gay and lesbian lifestyle or ridiculed his religious beliefs, such material might reasonably be held to be in direct conflict with the core elements of Mr. Brockie’s religious beliefs. On the other hand, if the particular printing object contained a directory of goods and services that might be of interest to the gay and lesbian community, that material might reasonably be held not to be in direct conflict with the core elements of Mr. Brockie’s religious beliefs. These examples are but illustrations of the balancing process that is indicated in this case. There can be no appropriate balance if the protection of one right means the total disregard of another. (emphasis added)

Ontario (Human Rights Commission) v Brockie (2003) 222 DLR (4th) 174, at [56]

In this context, it would not be unreasonable to see the whole purpose of “World Pride” as “promoting the gay and lesbian lifestyle”.

None of these overseas cases are exactly like the case of the Kwik Kopy franchisee, nor of course do they represent binding law in Australia. But the decisions of the highest court in the UK, in Ashers, and of the Canadian court in Brockie, should at least give some pause to those who suggest that the action of declining to print a poster to which the printer objects on religious grounds would be “clearly” unlawful. In my view there are good arguments to the contrary.

The case is complicated, of course, by the fact that the store is a subsidiary of the larger Kwik Kopy brand, and the CEO of the company has come out to say that she disagrees with Mr Khong’s decision. We are told that “Kwik Kopy management has since denounced Khong’s “position” and said it was not reflective of the company’s values and code of conduct.” If there were something specific in the contractual arrangements between the company and its franchisees that required acceptance of all customers regardless of the message they were conveying, then perhaps Mr Khong might face some penalties from the company. On the other hand, it seems unlikely- one can well imagine that all print shops in Australia should be able to reject posters glorifying the Holocaust or calling for violence against some group of persons.

Extreme examples like these to one side, one imagines that in the CBD of Sydney it would not be very hard to find another printer who would be happy to do the job! Hopefully the negative publicity he has received for his principled stand will be the worst that Mr Khong suffers, and no legal action will be taken. But if it is, for the reasons noted here, it would probably not succeed.