Is “gender critical” feminism a belief that’s unworthy of respect in a democratic society? This is the take-away message that Karon Monaghan suggests emerges from the preliminary decision in Forstater v CGD Europe and others in a recent post. In this case, the claimant, Maya Forstater, argued her consultancy agreement had not been renewed because of her belief that sex matters and is immutable, thus denying the possibility of meaningful gender transitioning.
The preliminary decision in this case simply addressed the question of whether Maya Forstater’s belief could count as a philosophical belief for the purposes of constituting a “protected characteristic” under the Equality Act 2010. While the tribunal’s decision also raises human rights protections, its discrimination-based framing is important, raising the question: should people be protected from discrimination, when it comes to contractual and employment benefits, because they believe sex is immutable?
Let me start by saying that I disagree with the sex-based version of feminism that has recently risen to prominence. In my view, gender inequality is a social condition that, while it involves bodies, is not determined by them, nor by their sex – a term itself that acquires different meanings in different contexts. Sex is clearly a contested term and, as with other concepts, there is no single right answer as to what it is and means. How we understand sex depends on the conditions, purpose, time and place of its understanding or of what Wittgenstein, in Philosophical Investigations, called its “language game”. Yet, even if claims that sex is immutable are deeply problematic, this alone does not make it acceptable to refuse to employ someone or fire them who believes in such claims. And while this case involves a consultancy agreement, in situations where people are increasingly hired as consultants and freelancers rather than employees, discrimination law may need to provide remedies in situations where other legal protections are not available.
Whether “gender critical” thinking constitutes the kind of philosophical belief that is legally protected from discrimination returns us to the test elaborated in Grainger plc v Nicholson. This is the gold standard for “philosophical belief”, but its application has problems. It reads “philosophical beliefs” through a paradigm based on religious norms; it also relies heavily on standards derived from article 9 ECHR jurisprudence. Together, these have the effect of establishing too high a threshold for anti-discrimination law. First, they tie protection to those beliefs deemed worthy of respect. In Forstater, the judge determined that the beliefs in question could not be protected because they violated others’ dignity and conflicted with their human rights. Given Grainger, this may be the right interpretation. But it is also problematic since it makes protection from discrimination on grounds of philosophical belief dependent on the belief being judged as morally acceptable. (On other occasions, beliefs get framed in court in ways that meet the Grainger standard but correspond poorly to the beliefs in fact manifested). The problems caused by this normative standard are evident in the status and definition of non-belief – also a protected characteristic in the Equality Act 2010. In Forstater, the employment judge interpreted it as meaning a “philosophical lack of belief” (para 58). Incoherent or irrational refusals to believe something would therefore not be protected. Grainger, however, states that people are protected through the lower standard of “lack of belief” (para 31). The point of protection, as a negative right to freedom from discrimination, is to ensure that opportunities and benefits are not dependent on either having a specific belief or not having it. But if protection for lack of belief does not have to meet a high threshold, it does not make sense for the belief itself to have to. The challenge, here, comes in moving between a negative right to protection from discrimination and a positive right to express or manifest one’s beliefs, which I turn to shortly.
The second problem with Grainger, from a discrimination law perspective, is the weight placed on whether the beliefs, mapped onto religious beliefs, are deeply held and so not merely opinions that change as evidence changes. This has significant ramifications in orienting and weighting protection to those whose beliefs are intensely and unequivocally held. In Forstater, the judge describes how the claimant confirmed her unequivocal belief in immutable sex through a series of social media comments. These included the provocative and, to many, offensive claim that using people’s preferred pronouns could lower women’s defences against sexual violence. Described as a recent comer to the beliefs, they were nevertheless “fixed” and “becoming more so” (para 82). In Grainger, the claimant stated, “It is not merely an opinion but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and my fears” (para 3). The recent case on ethical veganism, Casamitjana Costa v The League Against Cruel Sports, similarly describes the host of ways in which the claimant avoided causing or contributing to animal exploitation and suffering.
What is not clear is why protection from discrimination should require absolute commitment to a cause, whether it is veganism or a view that sex “matters”, rather than commitments which take a looser, even pragmatic, form. I suggest below that it would be better for employers and workers to maintain connections with objected-to others rather than to withdraw. Recognising more equivocally held beliefs, ones that change as ideas and evidence change, would support this, rather than penalising those subjects that evaluate the facts reflexively or seem to compromise. The latter approach may pull “philosophical belief” away from religion as it is conventionally understood (although religious beliefs can also quite legitimately take this form). But the extension of discrimination protections to philosophical beliefs seems an opportunity to reassess what kinds of beliefs (and what kinds of “holding”) should count.
This does not mean staff should be able to harm others through their beliefs or necessarily use them as a legitimate basis for withdrawing from expected work activities. But, as others have suggested, tackling this is about how (and, of course, where) beliefs are manifested – an acting out that can involve undertakings or withdrawal. It seems wrong to deal with problems of manifestation by setting a high threshold upriver with beliefs. Since good beliefs can be acted upon in bad ways and vice versa, how beliefs are expressed and acted upon is key – a terrain of complexity that cannot be adequately addressed by restricting what counts as a recognised belief. Of course, if a wider range of beliefs are protected, manifestation needs to do more work, including to distinguish acceptable from problematic forms. The right role for the courts here is tricky, but the present situation is not unpolitical. Currently, what counts as lawfully manifesting – or, post-Eweida and ors v UK, being “directly motivated” by – a belief seems to advantage hegemonic beliefs, particularly religious ones, over those less accustomed to being expressed and acted upon. As the EAT remarked in General Municipal and Boilermakers Union v Henderson “challenging the authority of line management in an employment context … has [nothing] to do with left-wing democratic socialism” (para 84). While I don’t presume the contrary is true, status quo values often come into play in determining what can count as manifestation as well as in evaluating claims for accommodation. In LB Islington v Ladele, the EAT tacitly recognised this bias – addressing a parallel counter-scenario in which hypothetical gay registrars refused to marry conservative Christians (para 113). The EAT found no evidence that the council would treat the equivalent refusal by gay registrars differently (even as their analogy demonstrates the power of common-sense norms, comparing Christians who would not register any gay partnerships with hypothetical gay registrars who refuse to marry antigay Christian evangelists rather than any Christian).
Fairness, then, may be a good reason to subject all forms of manifestation to more intensive scrutiny. While there are often problems in separating the holding of beliefs from manifesting them, and while some beliefs are only or primarily identified through what people do (as in the poppy wearing case of Lisk v Shield Guardian Co Ltd ET/3300873/11), there is an important difference between cancelling a consultancy contract with someone who, for instance, identifies as a nudist (or “believes” in nudism, since beliefs can be broader than identity), and someone who may practice their nudism at work. As the EAT held in Ladele, it is not discrimination to expect a Christian registrar to undertake same-sex civil partnerships in the same way expected of other registrars. It is not discrimination if both nudists and non-nudists are expected to come to work dressed. And while the prospect of nudism, at work, may spark interesting conversations, its prohibition would tend to be seen, rightly or wrongly, as a proportionate means of achieving a legitimate aim despite the adverse consequences for nudists. Likewise, in Forstater, it is reasonable for an organisation to expect its staff to respect other people’s gender identities and to be legitimately apprehensive if this is placed in doubt by a consultant, contractor or staff member who says they may show respect and treat trans women as “honorary females” but they are under no obligation to do so. As the claimant put it, “there is no general legal compulsion for people not to believe their own eyes… or pretend to forget what they already know” (para 39.11).
In my view, the tribunal judge was right to be concerned by Maya Forstater’s tweets. While they may have been integral to her public social media life, they cannot be easily separated from her workplace role. But before saying the organisation was therefore right (or within its “rights”) not to renew her contract, I want to consider the question of responsibility, where Amir Paz-Fuchs ends his comment on the case: what might responsibility entail when different bodies seek to pull out?
Withdrawal today is a dominating theme in politics, social activism, work, and most recently (in this age of pandemic), public health. As strikes, boycotts, school expulsions, terminated contracts and Brexit reveal – the withdrawal of respect, courtesies, opportunities, goods, relations and bodies from disliked or objected-to others has become widespread as a way for organisations and other bodies to demonstrate dissent and maintain credibility – a momentum explored in more detail in my recent book, Feeling like a state. Yet, as many of these contexts make only too clear, the termination of ties is not as clean or straight-forward as some would like. The world is small, interdependence is complex, and severing relations in one form may well lead to unintended (and unsought) new connections. The complexity of ties also highlights interconnections between past, present and future. Termination, in cases like Forstater, involves an assessment of risk based on predictive calculations of future harm: namely, do historic or present-day social media posts suggest that a staff member will discriminate in the future? Might other people think they will? And are such fears about the future damaging the organisation’s present legitimacy? Yet, rather than these temporal connections rationalising withdrawal and the severance of ties, in conditions of uncertainty they can also foreground a more extended responsibility, especially where “walking away” or termination reproduce or intensify existing inequalities of power.
Withdrawal is not necessarily or always wrong (I write this in conditions of enforced isolation intended to slow down the pandemic). But when bodies with greater power and resources want to terminate an agreement, in cases such as Forstater, should they have more responsibility to find a way forward within the relationship? This does not mean negating or denying emerging public norms – such as the right to transition or self-identify – simply, that affirming such norms may not justify cutting ties with those who do not conform.
An instance of an organisational duty to aid, in somewhat parallel circumstances, was the recent Court of Appeal judgment in R (Ngole) v Sheffield University. Here, a social work student was removed from his course on “fitness to practice” grounds for comments posted on an American news website which opposed gay marriage and described homosexuality as a “sin” and “wicked act” (para 10). His removal followed an elaborate set of university procedures. However, these appear to have been oriented towards discipline and enforcement rather than assistance. The court therefore held the university had an obligation to do more to help the student so he could express his (lawful) views publicly in a legitimate way. “Crucially, at no stage did those in charge of the disciplinary process …make it clear that it was the manner and language in which the Appellant had expressed his views which was the problem or discuss or offer him guidance as to how he might more appropriately and moderately express his views on homosexuality in a public forum” (para 111).
I would be concerned about a reading of Ngole which treats these religious views as legitimate public beliefs. However, responsibility to help does not have to mean validating or legitimating the views expressed, particularly when they collide with an organisation’s publicly expressed commitments. Instead, what it means is recognising the power that bodies, like universities and employers, have; and so foregrounding other ways to tackle discriminatory beliefs and speech. A wide array of techniques has been explored in the sorts of contexts the Forstater and Ngole cases involve, including mediation, deliberation, role-play, serious play, policy games, and, of course, organisational relocation. All have different shortcomings and challenges; and the inability to find a solution or wall off discriminatory speech may eventually force a termination. However, treating this as an undesired action of last resort, rather than where disciplinary action – underway with the first (or second) infraction – will end, recognises both that people don’t disappear (they can no longer be exiled to wander the earth, if they ever could) and that people change, even when they seem most tenaciously to hold onto their beliefs.
At the same time, discrimination, in these cases, is not a single discrete act but a chain of actions. Employers and universities may withdraw promotions, contracts and degree credentials, but this follows staff and students withdrawing or withholding respect from others. It isn’t just organisations, then, who should feel responsible. In Ngole, the administrative court judge suggested trainee social workers should be expected to show that they can figure out what kind of religious speech is acceptable, “to work out the impression that might be given in the wider world; to take personal responsibility for it” (para 177, italics added). Responsibility, in this sense, suggests accountability – that people stand behind their actions and accept censure where appropriate. In some contexts, this is necessary. Parvati Raghuram, Pat Noxolo, and Clare Madge also describe how self-responsibility can challenge disempowering geopolitics of paternalism and “rescuer state” discourses within postcolonial contexts (Rethinking responsibility and care for a postcolonial world). But there is another version of responsibility, one less focused on holding bodies responsible for their actions’ costs. Instead, it focuses on allocating responsibility to those bodies whose capacity and exercise of power makes a difference to others.
One version of this – a responsibility not to wash your hands and walk away – can be found in Canadian anti-discrimination law. In Eadie & Thomas v Riverbend, where Christian guesthouse owners turned down a booking from a couple on realising they were both men, the court asked whether they had accommodated the couple to the point of undue hardship to themselves. “The Respondents made no offer of alternate accommodation, engaged in no discussion about what options might be available … or any hardship that might be imposed on the Respondents through any accommodative measures” (para 154). Similarly, in an earlier venue case of Smith and Chymyshyn v Knights of Columbus & ors, where a hall rental for a wedding reception was withdrawn from a lesbian couple on religious grounds, the court held that those managing the hall had not considered or taken those steps possible, within the parameters of their beliefs, to assist.
Addressing the obligation to help that is expected of service providers withdraws from beliefs, whether religious or otherwise, a trumping status when it comes to determining legitimate action. Property rights and organisational status give actors (explicitly or implicitly) control, access and opportunities in relation to people and resources that they would otherwise lack. Consequently, these relations have a public quality. In the case of a contractor or organisational member who does not believe in gender transitioning or gay equality, this may mean acting as if they do. In a case like Forstater, responsibility comes from a capacity to make a difference to other people’s lives thanks to the consultancy contract with an organisation. This power is not a thing that belongs to the contractor; it is not a gift which she can use in any way she chooses. It should therefore be legally unacceptable for her to suggest that whether she recognises another person’s gender is up to her (para 41). More should be expected; and while her beliefs should not make her vulnerable to discrimination, people should not be legitimately able to withdraw from modes of interaction and commitments, such as this one.
At the same time, organisational dissent should not become impossible. People often have beliefs that diverge or clash with what they are required to do. For instance, many university academics do not believe in examinations or degree classifications. Their “philosophical beliefs” instead articulate an egalitarian, quite different model of education. While they may recognise their formal obligation to make summative assessments, the friction of disagreement can also be productive. The contested character of sex and gender makes them legitimate sites for debate, including workplace debate. But this should not mean that anything goes. People do not enter these debates or disagreements from equal positions. It is those with subordinate statuses and unconventional identities who typically face harm from others’ speech acts or find themselves forced to justify an existence that others take for granted. And the fact that a clash involves different subordinated statuses does not minimise responsibility. Reserving the right to refuse to use people’s preferred pronouns is not the same as refusing to use an aristocrat’s title on the grounds one is an egalitarian or republican. It simply reinforces some people’s lower status without countering the complex manifestation of gendered inequalities, which include but cannot be reduced to the subordination of women.
Discrimination law has become a terrain of clashing rights-claims to protection, where beliefs (religious or otherwise) are pitted against (and sometimes aligned with) protection from discrimination on grounds of sexual orientation, sex and gender reassignment. But those claiming protection from discrimination, as with the marriage registrar in Ladele and the Christian counsellor in McFarlane, often engage in their own forms of discriminatory conduct. This is not a zero-sum relationship, a matter of balancing, nor an inevitable collision. Recognising the subordinations, violence and exclusions that trans-identified people face does not have to detract from recognising the ways in which societies create men and women as unequal relational categories.
As these kinds of conflicts grow, one challenge is to find ways of doing dissent that are less fraught and less destructive. Role-play, simulated futures, and other forms of creative engagement may have something useful here for organisations struggling with these conflicts. But the more fundamental, structural challenge, at a policy and political level, is to sustain an attention that goes below, around and beyond the terms of enacted conflicts, such as this one, to consider what is silenced and ignored, the conditions that produce the divisions faced, and the foundations that might anchor and help to create other possible futures.
My thanks to Nicole Busby, Flora Renz, Virginia Mantavalou and Hugh Collins for their very helpful feedback on an earlier draft.
Davina Cooper is a Research Professor at Dickson Poon School of Law. Her most recent book is Feeling like a State (Duke UP, 2019). She is currently PI on an ESRC project on the Future of Legal Gender: https://futureoflegalgender.kcl.ac.uk/.
(Suggested citation: D Cooper, ‘Against withdrawal: Extending responsibility to “philosophical beliefs”’, UK Labour Law Blog, 30 March 2020, available at https://uklabourlawblog.com).
UK Labour Law 