Law & the Courts

The Era of Protected Belief

Flag at a protest against Trump administration transgender policies in New York City, 2018. (Brendan McDermid/Reuters)
In the U.K., judges apply the Equality Act of 2010 inconsistently.

No one can doubt Jordi Casamitjana’s commitment to veganism. His diet, wardrobe, romantic and leisure choices, and even his method of transportation — he can’t take the bus, because it might accidentally squash an insect — are all influenced by his beliefs. And so, too, was his employment.

In what could become a test case, Casamitjana has taken his employer, the League Against Cruel Sports, to court for unfair dismissal. He claims it was his vegan beliefs that led him to be fired. And he hopes to protect vegans from discrimination stemming from “veganphobia.” Naturally, his employers take a different view. They claim that Casamitjana violated company policy by financially advising colleagues — they allege that he revealed to other workers that they had invested in companies involved in animal testing.

I suspect that National Review readers will mostly consider “ethical veganism” unworthy of the status of protected belief. But what is a far more consequential question is What do British lawmakers mean by “protected belief”? And how do they decide what does and does not qualify?

In 2010, the British Parliament passed the Equality Act, which, according to the government, was designed to protect “people from discrimination both in the workplace and in wider society.” The protected characteristics include age, disability, gender reassignment (in the case of post-operative transsexuals), being married or in a civil partnership, being pregnant or on maternity leave, race and nationality, religion or belief, and sex and sexual orientation.

As with the case of Casamitjana’s “ethical veganism,” it is the “religion or belief” clause that is proving the most contentious. This is in part because it is in conflict with some of the other protected characteristics. For instance, consider the case of David Mackereth, a medical doctor fired for his disbelief in transgenderism, which was informed largely by his Christian faith and belief in the Book of Genesis. The “religion or belief” clause is causing problems because it is difficult to define which “beliefs” are worthy of protection and which aren’t.

As I have discussed before, the Equality Act sets out its criteria for protecting belief as follows. It must be genuinely held, be a “belief” and not an opinion, be related to a substantial aspect of human life and behavior, have “a certain level of cogency, seriousness, cohesion and importance,” and be “worthy of respect in a democratic society” and not be “incompatible with human dignity and not conflict with the fundamental rights of others.” These criteria were decided in Grainger vs. Nicholson, argued in 2010, the same year the Equality Act was passed. In this case, Mr. Nicholson’s lawyers successfully argued that his belief in climate change  was a protected belief.

Consider another recent case, one that has failed this test. Maya Forstater was a researcher and writer fired for her belief that women have sex-based rights and for her disbelief in transgenderism (that a person can change sex). The judge decided that the case had failed the fifth point of the Grainger test because her belief in the immutability and binary nature of sex was in conflict with the fundamental rights of others.

To be clear: Forstater’s comments — courteously and reasonably expressed — were made outside the workplace. She reassured her employer that in a social and professional context she would address people according to preference. Likewise, Mackereth, the medical doctor fired for his belief in Genesis, was fired because of his answer to a hypothetical scenario. No transgender patient had ever complained about him.

Forstater’s lawyer told the Guardian, “Had our client been successful, she would have established in law protection for people — on any side of this debate — to express their beliefs without fear of being discriminated against.” The trouble is that, under this kind of setup, these glaring inconsistencies are inevitable. A belief in Genesis, an ancient world religion, or a belief in biological sex, settled science, is not protected; but a belief in climate change or, potentially, “ethical veganism” might be.

Having anti-discrimination laws to protect people might be a good idea. But a law designed to protect people from injustices is dangerously broad (e.g., “incompatible with human dignity”) and is being applied according to the whims of judges and prevailing orthodoxies of our day. The trouble is that the legal definition of acceptable “belief” us takes out of the realm of anti-discrimination and into that of coercion.

Lousie Rea, a solicitor at the law firm Bates Wells, which advised Forstater’s employer in the case, told the Guardian:

A number of commentators have viewed this case as being about the claimant’s freedom of speech. Employment Judge Tayler acknowledged that there is nothing to stop the claimant campaigning against the proposed revisions to the Gender Recognition Act or, expressing her opinion that there should be some spaces that are restricted to women assigned female at birth. However, she can do so without insisting on calling transwomen men. It is the fact that her belief necessarily involves violating the dignity of others which means it is not protected under the Equality Act 2010.

But what business is it of Judge Tayler, or indeed of Forstater’s employers, to decide what language she can and cannot use outside work when articulating her belief in the immutability and binary nature of sex? That transwomen are men is a fact. An avoidance of saying so might be a courtesy in an interpersonal context (such as in the workplace, a concession Forstater was happy to make), but when the debate at hand is sex- based protections, it is foolish to avoid this point: the crux of the issue. As Forstater stated at the time, “policy debates where facts are viewed as offensive are dangerous.” So, too, are laws prohibiting them.

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