Maya Forstater’s views on trans people shouldn’t have been ruled a belief
The principles that underpin equality law were intended to protect people from being targeted for their faith. This judgement upsets the balance
Amid the cacophony surrounding the rights of trans people, a major shift in public policy occurred last week, the ramifications of which have barely been mentioned. In Maya Forstater’s recent appeal to the Employment Appeal Tribunal, her strongly-held views about trans identity were held to be beliefs for the purposes of the Equality Act.
The Equality Act is designed to protect people from discrimination. Included in that definition, it is unlawful to discriminate against someone because of their religion or belief.
The human rights movement emerged out of the need to protect religion and belief. The driving force behind the Universal Declaration of Human Rights was the duty to ensure people could not be targeted because of their faith.
The human right to religion and belief includes all the obvious faiths and the obscure ones too. Druids cannot be denied, nor can the Druze. Belief for these purposes includes all beliefs that are central to a person’s sense of self. It is not just a belief in God that is protected. The evangelical Christian and the avowed atheist have no more rights than anyone else.
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The right to religion is a recognition that faith gives purpose and meaning to people’s lives. Systems of belief can also have the same effect. For example, someone who is motivated by pacifism will be driven by that belief system in the same way that a Catholic may be by their Catholicism.
However, does the fact that someone believes in something mean that they must be afforded the protection of the right to religion and belief? We are let down by the English language. It does not effectively distinguish between what someone believes from a belief.
Having a right to say what we believe, does not make what we believe a ‘belief’ for the purposes of the right to belief. Freedom of expression is there to protect our right to speak about the things we believe in. The general principle is we must be allowed to say what we believe.
The wrong rights
In Forstater’s case – she took her former employer to a tribunal after her contract was not renewed in 2019 – the most remarkable thing is that an issue so clearly concerned with freedom of speech has been recast as one involving religion and belief. People may disagree about her beliefs on trans identity, but few would doubt her right to hold and express them. Freedom of expression is a marketplace of ideas. Some ideas flourish. Others wither away. But the provision in the Equality Act concerned with belief is not designed to promote or protect free speech.
The appeal decision means that Forstater can proceed with her case against her former employer under the Equality Act. Should she lose, and decide to take the case to the European Court of Human Rights in Strasbourg, that court is likely to decide on the matter as a free speech issue. While not disputing her strongly-held belief, that court will opt for the lex specialis, the right most appropriate for the facts of the case before them.
In Diane Pretty’s case concerning her belief in assisted suicide, the Strasbourg court attached little weight to that, pointing out that not all opinions or convictions amount to beliefs protected by the right to religion and belief. They went on to hold that her beliefs on personal autonomy added little to her complaint under private life.
Inevitably, that court will take a similar approach in Ms Forstater’s case. Whether or not her rights have been violated will be decided under the right to freedom of expression.
However, as a consequence of Forstater’s success in her tribunal, people who strongly believe in something will now seek protection under the Equality Act. This was never the intention of those who crafted the post-World War II human rights framework, which underpins our equality law.
The tribunal has distorted that careful balance and until it is rectified, employers and providers of goods and services must now treat things that people believe in as beliefs. Discrimination lawyers will have a field day.
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