When do you defend the right to offend?
Most people accept that we all have a right to have an opinion with which others disagree.
In recent times we have been familiar with issues concerning images or texts which people from one religion or another find offensive.
But with `Woke’ matters coming to the fore, this issue is straying into more secular areas of life, thus blurring the edges of accepted offending. It was only a matter of time before the courts were asked to adjudicate.
Fundamental Rights & Beliefs when it comes to Gender Recognition
In Forstater v CGD Europe, Ms Forstater worked for CGD. In 2018, she became engaged in the debate about proposed reforms to the Gender Recognition Act. Complaints were raised with CGD that some of her tweets were ‘transphobic’. Her contract was not renewed, and she complained of discrimination on grounds of belief.
The belief held by Ms Forstater is that there are only two biological sexes in human beings, and that it is impossible for a human being literally to change sex.
The employment tribunal judge found that because Ms Forstater’s belief necessarily involved “misgendering” it was incompatible with human dignity and the fundamental rights of others.
But the Employment Appeal Tribunal (EAT) disagreed. It found that Ms Forstater’s belief is widely shared, and consistent with the law. The tribunal was wrong to assume that her belief meant she would always ‘misgender’ trans persons, irrespective of circumstances; her position was more nuanced than that.
The EAT went on to hold:
It was only those beliefs…. akin to pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection. However, the manifestation of such beliefs may, depending on circumstances, justifiably be restricted.”
To offend or not to offend
In other words, we are entitled to the right to hold and express beliefs, other than extreme violence and hatred, even when those beliefs may offend others. Amen to that.
But…..the debate moves on to what amounts to the `gravest forms’ of hatred which are `not worthy of respect in a democratic society’?
For example, many people will consider any form of racist comment, no matter the context, as amounting to the gravest form of hatred. Is it not conceivable that one day the opinion expressed by Ms Forstater may indeed be seen in the same light?
There is also the debate about what amounts to the `manifestation’ of the belief?
To add context, the courts have already intervened when the practice of religious beliefs, as opposed to the holding of those beliefs, have been found to discriminate against others: for example, where bed & breakfast owners refused to allow same-sex couples to stay in their accommodation.
Within the context of the trans and gender debate, some would argue that repeatedly voicing an opinion creates a hostile and intimidating environment: is that not a manifestation of that belief, in and of itself?
Not yet, on current law, but `times they are a-changin’… especially with gender recognition issues
Affected? Speak to us for clarity and guidance – it’s a complex area
(c) Ben Thornber, Thornber HR Law