Freedom of Speech vs LGBTQIA+ rights
In this post we look at an organisation’s challenge when balancing Freedom of Speech vs LGBTQIA rights. A recent case has once again highlighted the difficulties employers and organisations face when trying to balance the rights of one person (or group of people) against another.
This has already been looked at in detail in a number of cases where an employee has faced disciplinary action or dismissal for exercising their religious belief in a work context – for example, to refuse to offer relationship counselling or registrar services to same sex couples.
These cases have tended to show that an employer or organisation is able to take steps to restrict or address a person (or group of people) expressing their religious views in such a way as to infringe on the rights and freedoms of LGBTQIA people.
Higgs v Farmor’s School
Mrs Higgs worked as a Pastoral Administrator and Work Experience Manager at Farmor’s School, which is a secondary school. She made Facebook posts criticising plans to teach LGBT+ relationships in primary schools. The post complained about said:
PLEASE READ THIS! THEY ARE BRAINWASHING OUR CHILDREN!
** On November 7th the Government Consultation into making Relationships Education mandatory in primary schools, and Relationships and Sex Education mandatory in secondary schools closes. Which means, for example, that children will be taught that all relationships are equally valid and ‘normal’, so that same sex marriage is exactly the same as traditional marriage, and that gender is a matter of choice, not biology, so that it’s up to them what sex they are.
At the same time it means that expressing and teaching fundamental Christian beliefs, relating to the creation of men and women and marriage will in practice become forbidden – because they conflict with the new morality and are seen as indoctrination into unacceptable religious bigotry. Which means that freedom of belief will be destroyed, with freedom of speech permitted only for those who toe the party line! We say again, this is a vicious form of totalitarianism … aimed at suppressing Christianity and removing it from the public arena.
***Please sign this petition, they have already started to brainwash our innocent wonderfully created children and its happening in our local primary school now***
The Employment Tribunal held that someone reading Mrs Higgs’ posts could reasonably conclude that she held homophobic and transphobic views, though she denied this.
Farmor’s School received complaints about the posts. They suspended Mrs Higgs, investigated the situation and ultimately dismissed her. Mrs Higgs claimed that the decision to dismiss her made because of her religious belief and was therefore discriminatory. The Employment Tribunal rejected her claim.
Mrs Higgs appealed and the Employment Appeal Tribunal have allowed her appeal. Headlines have stated that Mrs Higgs has “won” however this could be misinterpreted. The case is not yet concluded and Mrs Justice Eady was very clear in her Judgment that she was not expressing any view as to the merits of either side.
So, what is going on?
The Employment Appeal Tribunal identified that the Employment Tribunal had failed to consider certain legal points when making its decision. So, the case has been sent back to the Employment Tribunal for a re-hearing. Essentially, Mrs Higgs’ claim has gone back to square one.
The Employment Tribunal may consider the legal points and stick to the decision that Mrs Higgs was fairly dismissed and not discriminated against. Or, it may change its mind and find in favour of Mrs Higgs. It may be several more months until we find out.
Freedom of Speech
It is worth noting that Mrs Justice Eady of the Employment Appeal Tribunal recognised that freedom of speech, including the right to express views relating to a religious belief, is an essential right. However, she also confirmed that this does not mean that there can be no restriction or limitation placed on that right.
There is a balancing exercise between the fundamental rights of one person (or group of people) against the legitimate interests of others. And, as we have seen in previous cases, a limitation may be placed on the right to share information about a religious belief where that is reasonably necessary to protect the legitimate interests of LGBTQIA+ people.