Guides & Advice

A person’s belief whether gender can be fluid | I don’t like what you say, but I will defend your right to say it

Published: 30th November 2020
Area: Corporate & Commercial
This article considers a recent case that decided a belief that biological sex is immutable and that gender cannot be fluid fell within the protection afforded to beliefs under the Equality Act 2010.

Pluralism and tolerance are the pre-requisites of a democratic society. Pluralism and tolerance also awaken us from the slumber of our complacency. Those values were made express in cases under the European Convention on Human Rights (ECHR) Article 10 (the right to freedom of expression), which protects not only views that are well received, but those that shock and disturb.

All laws must be interpreted in a manner compatible with the ECHR. That requirement influenced a recent case which concluded that a person’s beliefs that gender cannot be fluid and that an individual cannot change their biological sex amount to beliefs warranting protection from discrimination under the Equality Act 2010 (Higgs v Farmor's School (ET/1401264/19)). Though the case related to a dismissed employee, it is nevertheless relevant to institutions’ dealings with students, who benefit from the same protection.

What is a belief for the purposes of the Equality Act?

The conditions below must be met in order for a belief to qualify for protection. “Belief” also extends to a lack of belief.

The belief must:

  1. be genuinely held
  2. be a belief and not an opinion or viewpoint based on the present state of information available
  3. be a belief as to a weighty and substantial aspect of human life and behaviour
  4. attain a certain level of cogency, seriousness, cohesion and importance; and
  5. be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
What were the reasons for the employment tribunal’s decision?

The claimant, a Christian, was a pastoral administrator and work experience manager at the school. A posting by her on Facebook made clear her opposition to the teaching in schools of, amongst other things, gender being a matter of choice. She was subsequently dismissed and alleged that she was discriminated against because of her beliefs. The tribunal interpreted the Equality Act’s provisions in the light of ECHR. In particular, it relied on:

  • Article 9 - the right to freedom of thought, conscience and religion and to manifest one’s religion and beliefs. The former right is absolute but the right to manifest one’s religion and beliefs is qualified and hence can be interfered with in pursuit of a legitimate aim (e.g. to protect the rights of others),  provided the interference is lawful and proportionate.
  • Article 10 – the right to freedom of expression, which includes the right to hold opinions, and to receive and impart information and ideas without state interference, unless justified for reasons also outlined above in relation to Article 9.

The tribunal in addition considered the five tests (a) to (e) above, but the issue primarily contested was (e) i.e. whether the claimant’s belief could be regarded as worthy of respect in a democratic society, be compatible with human dignity and not conflict with the fundamental rights of others.

Previous cases had found that similar beliefs did not fulfil (e) because those who held them were likely to engage in “misgendering”, which could result in discrimination against a trans person. The tribunal however saw no reason why the claimant’s belief should necessarily result in unlawful action and there was no reason to believe that she would behave towards any person in a way that would “deliberately and gratuitously upset or offend them”.

While the tribunal acknowledged that some people may nevertheless be upset or offended by the claimant’s beliefs, the rights conferred by articles 9 and 10 would be “worthless” if they extended only to expressions of belief that could upset no one.

The tribunal was obliged to conduct a balancing exercise between those who hold the beliefs in question and those who opposed them. The conclusion was that the claimant’s beliefs met the test in (e) and were therefore worthy of respect in a democratic society, were not incompatible with human dignity and did not conflict with the fundamental rights of others.

What are the lessons of this case?

Though this case is being appealed, its judgment on the face of it is consistent with case law in the context of the right to freedom of expression.  Pluralism and tolerance require exposure to views that we may find objectionable. Offence is not a sufficient basis on which to prohibit their expression unless those expressing the views also seek to deprive others of their fundamental rights.  The fact that there was no evidence of the claimant, in this case, doing so was the decisive factor in the tribunal’s finding that her views warranted protection from discrimination.

The gender/trans debate generates strong feelings and a polarisation of views. One side calls for the other to be denied a platform. Both sides have a right to express their views. The challenge for institutions is to differentiate a valid exercise of that hallowed right from its abuse.

If you would like further information or advice on this topic Geraldine Swanton in our specialist education team can help.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

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