Discrimination claim against regulator upheld

Rachel Meade posted links to various media articles, petitions and other material that reflected her gender-critical views, which include the belief that sex (as opposed to gender) cannot be changed. Such views may cause profound offence to others, and are perceived by some as transphobic.

The ET confirmed, following the decision of the Employment Appeal Tribunal (EAT) in Forstater (UKEAT/0105/20/JOJ), that gender-critical views of the sort held and expressed by Ms Meade are protected views under section 10 of the Equality Act 2010. It agreed that the belief that human beings cannot change sex is not the kind of belief akin to Nazism or totalitarianism that engages Article 17 of the European Convention on Human Rights (ECHR). Article 17 makes clear that none of the rights (including the right to freedom of expression under Article 10) include the right to engage in any activity or act aimed at the destruction of the rights and freedoms of others.

The ET concluded that the views expressed by Ms Meade did not seek to destroy the rights of trans people. It noted that:

Ms Meade posted her views on her private Facebook page, which had about 40 followers. One of those people raised concerns with SWE, saying that they found the posts offensive. SWE carried out an investigation and its case examiners found a case to answer. They offered Ms Meade an agreed outcome of a one-year warning. Initially she consented, but after being suspended by her employer, she withdrew consent. The agreed disposal was ultimately overturned and the matter referred to a hearing, but the allegations were later discontinued on the basis there was no prospect of a finding of impairment.

What should regulators do?

This decision reinforces the importance for regulators of ensuring they are properly informed about, and engaged with, key issues on which their professionals may wish to exercise their right to freedom of expression. Clear standards for professionals, supplemented by good guidance on expressing personal views (whether or not on social media), are an essential starting point.

Then when concerns are raised about the views expressed by their professionals (or the way in which they have expressed them), regulators need to:

• be very clear about the legal framework;
• carry out careful investigations, establishing the key facts;
• explore the specific views expressed, the way in which they were expressed, and the context;
• avoid reaching general conclusions about the acceptability of views expressed simply on the evidence that some people were or might be offended by them;
• make an evidence-based decision about whether the views expressed are protected views, and whether the way in which those views were expressed was in accordance with the regulator’s standards; and
• avoid taking a blanket approach. Where there are multiple social media posts, some of which are acceptable in law and under the regulator’s standards and some of which are not, the regulator needs to be very clear about which are unacceptable. Any regulatory action must proceed only on the basis of the unacceptable posts.