There has been an important legal victory protecting the right in law for an employee to hold and express views which are critical of Critical Race Theory (CRT), even if other employees find these views offensive. This is the result of a case won by Sean Corby, an employee of the independent, government funded Advisory, Conciliation and Arbitration Service (ACAS). ACAS, perhaps ironically, provides mediation and arbitration services for workplaces throughout England, Scotland and Wales. Sean Corby, who is an employee of ACAS, posted his views on a workplace forum, Yammer. Four other members of staff took exception. He was critical of some aspects of the Black Lives Matter political movement, supporting instead the views espoused by Dr. Martin Luther King. ACAS, as his employer, dismissed the complaints of his colleagues, but instructed him to remove his comments. He then took out a complaint via an Employment Tribunal.

“During a four-day hearing in Leeds, Mr Corby was able to persuade the panel that his opposition to CRT possessed a level of cogency, seriousness, cohesion and importance, that elevated it above a mere ‘viewpoint’ or ‘opinion’ and into the realm of a ‘philosophical belief’ that is worthy of respect in a democratic society, and that as such it attracts legal protection under the Equality Act” (FSU, 2023).

This decision, albeit at the lower level of the court system in the UK, is significant, in defending the right to free speech within the strongly contested area of opinion regarding ‘protected characteristics’, such as sex, race and disability, which are covered by the Equality Act 2010.

Free speech on gender ideology

It joins a string of earlier successful challenges to attempts to restrict the expression of views which are critical of gender ideology, with necessarily far-reaching consequences. Sonia Appleby brought a successful case against the Tavistock Gender Identity Development Service over its safeguarding failures; Harry Miller challenged the routine recording by police of non-crime hate incidents over his views expressed via social media; crucially, Maya Forstater won her case defending her right to free expression of gender critical views.

The Forstater Appeal thus clarified that the expression of gender critical beliefs is therefore protected in law under s.10 Equality Act 2010 and Article 9 (freedom of thought, conscience and religion) of the Human Rights Act 1998. Hence in Forstater:

“The Claimant holds gender-critical beliefs, which include the belief that sex is immutable and not to be conflated with gender identity. She engaged in debates on social media about gender identity issues, and in doing so made some remarks which some trans gender people found offensive and “transphobic”.

The Claimant’s gender-critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons, clearly did not fall into that category. The Claimant’s belief, whilst offensive to some, and notwithstanding its potential to result in the harassment of trans persons in some circumstances, fell within the protection under Article 9(1), ECHR and therefore within s.10, EqA” (Forstater v. CGD, 2020).

These successful cases, although all so far decided at the lower level of the UK legal system, are significant in establishing that free speech on contested issues is robustly protected by the law. This has important implications for all employees, particularly those working in schools and universities.

References

Dathan, M. (2003) Critical Race Theory’s opponents protected. Times, 29th September. https://www.thetimes.co.uk/article/law-protects-opposition-to-critical-race-theory-judge-rules-rmrj2qnzt

Free Speech Union (FSU) (2023) Legal victory for FSU member in critical race theory workplace dispute! https://freespeechunion.org/weekly-news-round-up-132/

Legal references

Mrs S Appleby v The Tavistock and Portman NHS Foundation Trust: 2204772/2021 – Final Judgment. EMPLOYMENT TRIBUNALS (publishing.service.gov.uk)

Forstater v. CGD UKEAT/0105/20/JOJ. Maya_Forstater_v_CGD_Europe_and_others_UKEAT0105_20_JOJ.pdf (publishing.service.gov.uk)

R (Harry Miller) v The College of Policing [2021] EWCA Civ 1926 Miller, R (On the Application Of) v The College of Policing [2021] EWCA Civ 1926 (20 December 2021) (bailii.org)

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By Peter Jenkins, a counsellor, supervisor, trainer and researcher in the UK and a member of Thoughtful Therapists.