The issue of what constitutes a “protected belief” for the purposes of the Equality Act 2010 has come up yet again – this time, in relation to the expression of so-called “gender-critical” beliefs. Though it has only a tangential relationship with “religion”, it has a lot to do with freedom of expression and Articles 9 & 10 ECHR.

Background

In Meade v Westminster City Council & Anor [2024] ET 2201792/2022, ET 2211483/2022, Ms Meade was a social worker with the Council. She was obliged by her professional registration to adhere to the standards set out by Social Work England, the second respondent [32]. She was a feminist with gender-critical beliefs, which included the belief that sex was immutable and not to be confused with gender identity [33].

Mr Wolton, also a social worker and a Facebook friend of Ms Meade, complained to Social Work England about what he alleged to be transphobic comments on her Facebook account. He also contended that she had signed petitions published by organisations known to harass the trans community and had donated money to causes that sought to erode the rights of trans people as enshrined by law in the Equality Act. The catalyst for his complaint was that she had posted links to an organisation called Standing for Women which he described as “a known hate group” [47] – the Tribunal, however, found that Ms Meade had never believed that any of her posts were discriminatory [69]. After an investigation, she was suspended in July 2021, pending a disciplinary hearing [98]. In July 2022 she was told that her suspension had been lifted and she could return to work [135]. She brought claims for harassment and direct discrimination on account of her protected beliefs under s.26 of the Equality Act.

The arguments

Before the Employment Tribunal, it was argued for the respondents that the right to manifest beliefs was not an automatic shield from any liability: for example, the harassment of a trans person through misgendering them [185]. For Ms Meade, it was contended that none of her posts was abusive, incited hatred or violence or defamed any individual and that it was self-evident that it was the manifestations of her belief that were the reason for the respondents’ regulatory and disciplinary processes and that their “belated and ill-explained attempts at reformatting the charges against the Claimant” did not come near to the standard of cogent evidence required to discharge the burden of proof [187-189].

The judgment

The Tribunal found as follows:

• all of Ms Meade’s Facebook posts and other communications fell within her protected rights for freedom of thought and freedom to manifest her beliefs as protected under Articles 9 and 10 ECHR [193].
• none of her manifestations of her beliefs were of a nature that they aimed at the destruction of any of the rights and freedoms of others contrary to Article 17 [194].
• none of the posts could reasonably be regarded as offensive (thereby vitiating the protection provided to Ms Meade in manifesting her protected belief). “Freedom of speech inevitably will involve the right to, on occasion, cause offence to some people but it is clear that that does not preclude an individual’s ability to express such views” [195].
• none of the 70 posts was abusive, incited hatred or violence or defamed any individual [196].
• it was significant that many of the posts complained of did not constitute Ms Meade articulating her own views but rather forwarding links to articles or comments on television programmes pertaining to the gender-critical debate [197].
• the entirety of her posts had the necessary close and direct connection to her protected belief to be properly understood as manifestations of that belief [198].

In conclusion:

The views expressed by Ms Meade were not extreme but rather represented her expressing her opinion in an ongoing public debate:

“The fact that the debate can often be vociferous, and on occasion toxic, does not mean that the right to freedom of expression in a democratic society should be restricted. An analogy given during the hearing was to the divisive position of Brexit in the period up to and beyond the 2016 referendum, to which the Respondents both acknowledged that an employee/social worker would have been entitled to post their opinions, and we consider that the same entitlement should have existed to another contentious area of debate” [273].

It was wholly inappropriate that an individual espousing one side of the debate should be labelled discriminatory, transphobic and to pose a potential risk to vulnerable service users:

“That, in effect, equates her views as being equivalent to an employee/social worker espousing racially discriminatory or homophobic views. The opinions expressed by the Claimant could not sensibly be viewed as being transphobic when properly considered in their full context from an objective perspective, but rather her expressing an opinion contrary to the interpretation of legislation, or perhaps more accurately the amendment to existing legislation, advocated for by trans lobbying groups to include, but not limited to, Stonewall”.

Her claims for harassment succeeded in part: the Tribunal held, however, that the allegations which it found did not constitute harassment did not succeed as direct discrimination [1-3]

The Tribunal concluded as follows:

“Remedy

275. The parties are invited to consider whether the issue of remedy can be resolved between them, but if not, the Tribunal has provisionally listed, subject to the parties’ availability, a 2-day hearing on 12 and 13 February 2024. The parties are asked to advise as to whether this hearing is required, whether it is convenient and if so whether they wish it to be in person.”