The Employment Appeals Tribunal is currently hearing the appeal of Maya Forstater. Ms Forstater brought a claim under the Equality Act 2010 against CGD Europe when they allegedly refused to renew her consultancy agreement due to hear views on transgender issues.
HERE is the judgment in the case of Maya Forstater v CGD Europe & others.
I will say little in this article about the specific belief in question and instead consider the wider issue of when a belief is likely to fail the final Grainger criterion, namely being worthy of respect in a democratic society, being compatible with human dignity and compatible with the fundamental rights of others. Furthermore, I will consider the policy implications of this and whether the law should be reformed.
The key paragraph in the Forstater judgment is paragraph 84 which states:
“However, I consider that the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others. She goes so far as to deny the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned. I do not accept the Claimant’s contention that the Gender Recognition Act produces a mere legal fiction. It provides a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances, and thereafter to be treated for all purposes as the being of the sex to which they have transitioned. In Goodwin a fundamental aspect of the reasoning of the ECHR was that a person who has transitioned should not be forced to identify their gender assigned at birth. Such a person should be entitled to live as a person of the sex to which they have transitioned. That was recognised in the Gender Recognition Act which states that the change of sex applies for “all purposes”. Therefore, if a person has transitioned from male to female and has a Gender Recognition Certificate that person is legally a woman. That is not something that the Claimant is entitled to ignore”
The logic behind this paragraph and the decision, appears to be as follows; where the belief in question would justify policies that would infringe Convention rights (as developed and interpreted by case law), it will not be protected by the Equality Act 2010. (This is despite the fact that Marxism was cited in Grainger as a political philosophy that should be protected under the Equality Act 2010, even though it would not respect the right to property under article I, Protocol I of the ECHR).
This reasoning has far reaching implications, as the rights set out in the ECHR are subject to continued expansion via new judicial interpretation. If for example, as part of one’s philosophical belief in nationalism one opposed the CHAHAL JUDGMENT/non-refoulment or even the development of article 8 ECHR which has been used to prevent deportations, then presumably such a belief would not be protected under the Equality Act 2010.
Furthermore, it does not appear from the judgment that being incompatible with a decision of the European Court of Human Rights is a pre-requisite for finding that a belief is unworthy of respect in a democratic society.
It would appear that a large number and wide range of beliefs are deemed unworthy of protection under the Equality Act 2010 and that this trend will continue. In the Richard Page case, a religious belief that homosexuality was immoral, without any related belief requiring punishment or unequal treatment of homosexuals, was thought to be unworthy of respect in a democratic society (this is the belief of all the major religions), see HERE.
If the belief is not protected under the Equality Act 2010, then in practice the employer will feel empowered to dismiss their employee for expressing such a belief. This appears to be occurring in practice on a large scale and is having a chilling effect on the free discussion and exchange of ideas, probably more so than hate speech laws due to the limited resources of the criminal justice system.
To avoid this, what is necessary is quite simply, a law that prevents employees being dismissed for expressing opinions outside of their employment and which have no bearing on the same, see HERE for my proposal. This would be preferable to requiring tribunals to evaluate the beliefs of employees and to determine whether the employees’ beliefs are isolated beliefs or philosophical beliefs.
However, there appears to no appetite for such a law among such a law amongst mainstream politicians or the judiciary. With respect the latter, this can be shown by the introduction and development of the requirement that a belief must be worthy of respect in a democratic society. As Lord Walker observed in a dissenting judgment:[1]
“ 59. I must recognise that the views of Arden LJ quoted above are not without some support in the jurisprudence of the Strasbourg Court. In Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 (in which parents objected, but not on religious grounds, to their children receiving corporal punishment) the European Court of Human Rights stated (p304, para 36) that 'convictions',
"denotes views that attain a certain level of cogency, seriousness, cohesion and importance."
It added (p305, para 36) that 'philosophical convictions',
"denotes, in the Court's opinion, such convictions as are worthy of respect in a 'democratic society' and are not incompatible with human dignity."
The latter passage refers back to the Court's decision in Young, James & Webster v United Kingdom (1981) 4 EHRR 38 (para 63), a case on an employee who had conscientious objections to a "closed shop" policy.
60. I have to say that I find these qualifications rather alarming, especially if they are to be applied to religious beliefs. For the reasons already noted, the court is not equipped to weigh the cogency, seriousness and coherence of theological doctrines. Anyone who feels in any doubt about that might refer to the hundreds of pages of the law reports devoted to 16 years of litigation, in mid-Victorian times, as to the allegedly "Romish" beliefs and devotions of the incumbent of St Alban's, Holborn (the litigation, entitled Martin v Mackonochie, starts with (1866) LR2 A & E 116 (Court of Arches) and terminates at (1882) 7 PD 94 (Privy Council sitting with Ecclesiastical Assessors)). Moreover, the requirement that an opinion should be "worthy of respect in a 'democratic society'" begs too many questions. As Mr Diamond (following Mr Dingemans) pointed out, in matters of human rights the court should not show liberal tolerance only to tolerant liberals.”
The judiciary could have ensured that this caveat only applied to those who advocated violence and/or the forcible overthrow of elected governments. This approach would have ensured that there was an objective basis for determining which beliefs would be protected under the Equality Act 2010 and thus to some extent, safeguarded the free speech of the majority of the population.
They appear to have consciously rejected such an approach in favour of a Humpty Dumpty jurisprudence,[2]where ‘worthy of respect in a democratic society’ can mean whatever those in power want it to mean.
[1] R (Williamson) V Secretary of State for Education & Employment – [2005] UKHL 15, paras 59 and 60. Williamson concerned a belief in corporal punishment and whether such belief was protected under article 9. Lord Walker’s concerns have proven entirely justified [2] When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less. L. Carroll, Through the Looking-Glass (Raleigh, NC: Hayes Barton Press, 1872), ISBN 1-59377-216-5, p. 72.