The law only seems to protect trendy beliefs David Aaronovitch in The Times
The original article is here.
I have nothing against naturists. The offence caused to me by happening upon unexpected genitals while walking an isolated bit of shingle is nothing compared with that caused by men in sleeveless vests, people who don’t even acknowledge you when you’ve held the door open for them, and loud music in restaurants. I have never been mugged by a nudist.
But should abusing a naturist be classified as a “hate crime”? The head of British Naturism, Dr Mark Bass, argued this week that it should. About once a month, said Dr Bass, he receives a report from one of his 9,000 members saying that they’ve been subjected to distressing abuse (usually verbal) on the grounds of their naturism. Sometimes this would happen when they were naked, sometimes just because they were known to be naturists. The police, he argued, should have the same ability to take action as they would if the victim were being abused for their race, sexuality, gender, disability or religion.
If this seems like a bit of a stretch it’s worth knowing that naturism is classed, under the terms of the Equality Act 2010, as a philosophical belief. So, for example, you can’t fire an employee simply because they tweet about fun naked weekends or are pictured on the cover of Health & Efficiency. Not that I know what that is.
That naturism can aspire to the status of, say, a religion should perhaps not be so surprising. In one way going bare is an obvious extension of Franciscan views about poverty. In material terms (if not aesthetic ones) we are all equal when naked. Twice in Christian history a sect called the Adamites sought to recreate Adam’s Edenic innocence and used to hold services in the buff.
Naturally they were persecuted by other Christians. Who themselves would then be persecuted. One consequence of this deplorable European cycle of burnings and recantation was that all religions and denominations received protection in the American Republic set up in 1776. In that new paradise the right to religious belief was not only defended, it was increasingly privileged. Ironically by the very secularism that many religious people would deride. By the turn of this millennium churches in the US were benefiting from hundreds of tax breaks and legal exemptions, sometimes even in the operation of commercial activities in direct competition with less favoured businesses.
This protection was always going to be anomalous, but while organised religion was a dominant social force only radicals or eccentrics would dare make an issue of it. As it waned, however, two possibilities opened up. Either religion would lose its special status or other beliefs would seek their own place in the sun.
Let’s go through the wobbly lines of time and arrive in Norwich at the turn of this year. It was there that Judge Robin Postle ruled in the case of Jordi Casamitjana, who was fighting a case of wrongful dismissal against a charity, the League Against Cruel Sports. Judge Postle wasn’t ruling whether the League was wrong to fire Mr C, but whether his veganism constituted an ethical or philosophical belief under the terms of the Equality Act. Judge Postle ruled it did. The League did not contest this hearing and at the beginning of this week it settled with Mr Casamitjana on the matter of his dismissal. It had fired him for drawing attention to the League’s investment policy and now it agreed he had been right to. But take note here: he actually had taken actions that amounted to defying his employers’ instructions.
Maya Forstater had not. Ms Forstater, who by chance I met this week, is a tax expert who was employed by a think tank, the Centre for Global Development. She too was, in effect, fired. Her dismissal came after one or more colleagues complained to her managers that she had tweeted and written things in a personal capacity that were regarded as anti-transgender people. Most of what she had written constituted argument against the presumption that people should be allowed to “self-define” their sex. Her managers accused her of using “offensive and exclusionary language” and also of wildly exaggerating the possible implications for “biological” women of a proposed change in the law.
Ms Forstater fought her dismissal precisely on the grounds that her brand of feminism constituted an ethical belief and that therefore she should not be fired for expressing it. Unlike Mr Casamitjana, her argument failed to persuade the judge.
This is where I introduce you to the blockbuster Robert Ludlum never wrote, The Grainger Criteria. Established in the 2010 case Grainger v Nicholson, these were the five criteria that were used to define a “philosophical belief” under the Equality Act. Number one was that the “belief must be genuinely held”, second that it was not just “an opinion or viewpoint based on the present state of information available”, third that it must relate to something important about the human condition, fourth that it must attain a certain level of cogency, seriousness, cohesion and importance. Then comes the killer fifth, that “it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others”.
In his ruling in December Judge James Tayler threw out Ms Forstater’s claim on that last criterion. By openly disagreeing that a trans woman could be in her view fully a woman, her beliefs were judged to be antithetical to the human rights of others and hence unworthy of respect.
The more I think about it, the more troubling this becomes. If Ms Forstater’s “absolutist” beliefs are not worthy of protection, then why is any orthodox Catholic or anti-reform Anglican not similarly to be disbarred from such protection for arguing against women’s rights over fertility, or the ordination of women or gays to the priesthood? Come to that, is the view that there is no such thing as a biological woman not a denial that is also arguably “incompatible with human dignity”? Indeed, given the two cases, you can’t help thinking that the real difference between Ms F and Mr C is that one is fashionable and the other is anything but.
This is worrying, of course. And we can expect a lot more of it as beliefs are championed and contested. But just as significant is the cowardice that some employers show in the face of complaints about what are, in the end, expressions of opinion. If Ms Forstater had been offensive and rude to colleagues or clients that might have been grounds for dismissal. But for having an opinion? Never mind Jews, Hindus, naturists, vegans or feminists, all us should have a right for our speech and expression to be protected.