Conservative commentators were quick to seize on a recent UK abortion ruling as a loss for disabled people’s rights.

But some advocates for disabled people had opposed the appeal brought by Heidi Crowter, a woman with Down’s Syndrome, against the right to access late-stage abortions where a foetus could be born with certain health conditions.

Crowter had claimed that allowing pregnancy terminations after 24 weeks if a foetus is likely to have disabilities including Down’s syndrome is discriminatory against disabled people.

In a decision published on Friday 27 November, senior judges Lord Justice Underhill, Lady Justice Thirlwall and Lord Justice Peter Jackson dismissed the appeal, saying the existing law did not interfere with the rights of “living disabled” people.

Crowter’s case is part of a concerning legal trend where conservative actors use the language of progressive causes, such as advancing the rights of women and disabled people, to further their own regressive goals such as rolling back abortion rights and protections for trans people.

‘Intolerant of intolerance’

To maintain a tolerant society successfully, it’s necessary to be intolerant of intolerance. Groups that seek to destroy the rights and freedoms of others should not be allowed to rely on those same rights and freedoms to protect themselves.

This is the principle of the so-called ‘paradox of tolerance’, identified by the Austrian-British philosopher Karl Popper in 1945.

The paradox is recognised by human rights bodies, too. The European Convention on Human Rights includes Article 17, the “prohibition of abuse of rights”. The article says the European Court of Human Rights will not accept claims which rely on the rights enshrined in the convention to derive the right to conduct activities intended to destroy those very same rights. For example, in Ayoub and Others v France (2020), the court held that a paramilitary organisation which expressed support for people who had collaborated with Nazi Germany could not rely on the Convention’s Article 11, the right to freedom of association, to resist dissolution.

But Article 17 has been interpreted very narrowly. For example, in Lilliendahl v Iceland (2020), it was held not to apply to homophobic hate speech – the applicant could rely on the free speech protections within the convention (although action to limit that free speech might still be justified on the basis that it was a proportionate means of achieving a legitimate aim).

This narrow interpretation was vital in the Maya Forstater case. Since only what is classed as the most extreme hate speech, such as Holocaust denial, would be covered by Article 17, the ‘gender critical’ beliefs of Forstater – however wrong and offensive – were held to be considered “worthy of respect in a democratic society” in an Employment Appeal Tribunal, and thus liable for protection under the Equality Act 2010. As was made clear in the judgment, this does not mean hate speech is protected – if someone were to misgender a trans person repeatedly, this might amount to harassment and be unlawful.

Structural power and equality in ‘gender critical’ litigation

There are many criticisms that can be levelled at the approach adopted in Forstater, and its failure to reckon with the power structures behind oppression. The suggestion that people with ‘gender-critical beliefs’ should be protected against discrimination for their beliefs mirrors classic arguments about ‘reverse discrimination’: the idea that, for example, both men and women can be the victims of sexist discrimination, or that both white and Black people can experience racism.

This analysis has long been criticised, because it ignores the systemic aspects of discrimination that make it so pernicious. Similarly, there is no evidence that ‘gender critical’ beliefs are discriminated against on a systemic basis. Indeed, despite arguments made by ‘gender criticals’ about the malicious influence of Stonewall, such claims have rightly been dismissed by the courts as a “conspiracy theory”, and ‘gender critical’ views continue to maintain considerable influence in the halls of power.

Despite this, ‘gender criticals’ have sought to rely on the Equality Act 2010 to obtain discrimination protection for clearly anti-trans conduct. For example, in Forstater, it was argued that the Equality Act 2010 should protect Maya Forstater’s right to call Pips Bunce a “part-time crossdresser”. In Allison Bailey’s case, it was argued that the same should apply to a tweet calling a trans woman “male-bodied”, and suggesting that they “ran workshops with the sole aim of coaching heterosexual men who identify as lesbians on how they can coerce young lesbians into having sex with them.”

Bailey claimed that this terrible and transphobic accusation was a simple expression of her ‘gender critical’ beliefs. Most concerningly, in the judgment, it was uncritically accepted that the acronym ‘TERF’ (Trans Exclusionary Radical Feminist) amounted to a “slur” on the same level as racial slur ‘P***’, which was printed in the judgment uncensored. This clearly shows the danger of accepting that all beliefs, short of the most extreme, should be protected equally regardless of structural power and marginalisation.

Indeed, perhaps aware of the optics of relying solely on belief to substantiate her claim, it was also argued in Bailey’s case that she faced indirect discrimination on the basis of her being a woman and a lesbian – two groups that certainly are marginalised and are clearly in need of protection. However, her claim was fundamentally flawed because she could not demonstrate that women or lesbians were more likely to hold ‘gender critical’ beliefs. In fact, the evidence showed the opposite.

A flawed analysis of discrimination, ignoring structural marginalisation and promoting a ‘formal’ over ‘substantive’ equality approach, is pervasive throughout English and Welsh equality law. There remains limited provision for positive discrimination, and the case law has failed in practice to protect the most marginalised. A key example of this is the case of Aishah Azmi, in which an employment tribunal found against a Muslim teaching assistant who had been told to remove her face veil at work. It was held to be a case of indirect, not direct, discrimination, because wearing the veil was a manifestation of her belief. She had therefore been discriminated against based on that manifestation, rather than her belief itself. Furthermore, indirect discrimination could be justified.

In contrast, Forstater’s tweet about Bunce was held to be a direct expression of her belief. These two cases are clear evidence of a structural bias towards one, involving a typical white Western use of freedom of expression, as opposed to the other, which involved a heavily marginalised and racialised group.

As Sandra Fredman, a prominent employment lawyer, has rightly argued: “Equality of treatment is predicated on the principle that justice inheres in consistency; hence likes should be treated alike… [But] consistency in treatment of two individuals who appear alike but in fact differ in terms of access to power, opportunities or material benefits, results in unequal outcomes.”

So if we are to fully reckon with Popper’s ‘paradox of tolerance’, and ensure our system works to protect the most marginalised, we must be more critical of what protection we afford to those who seek to use equality law to protect their advocacy of regressive goals.

Genuine issues, regressive impacts

Even the genuinely marginalised may pursue goals that seem progressive, but ultimately end up limiting the rights of other marginalised groups. This can be seen in Crowter’s case.

The current approach to abortion limits in UK law is indeed fundamentally ableist and deeply discriminatory. The Abortion Act 1967 applies a 24-week limit to the medical termination of pregnancy unless there is a risk to the birth parent’s health, or that “if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”. However, as activists such as Rachel O’Brien have lucidly argued, this does not legitimise a further limitation and criminalisation of reproductive rights. Disabled activists must not use genuine concerns around eugenics to further limit the rights of other marginalised groups, especially in a political climate that is so hostile to reproductive freedom.

Most worryingly, this case shows how those with regressive agendas may utilise real targets of marginalisation to promote their own goals. Crowter has spoken at Christian ‘pro-life’ groups, such as Cambridge Students For Life, and has retweeted explicitly anti-abortion messages. The lawyer representing her is Paul Conrathe, who has been prominent in both anti-trans and anti-abortion litigation.

It is vital that we do not allow ourselves to be unwittingly drawn into supporting the actions of those who seek to utilise human rights and equality legislation to achieve regressive goals, intentionally or otherwise, simply because they frame their agendas in the language of discrimination and marginalisation.