Freedom of Expression in Academia and Employment - formerly the Trans Issues.

[The Minsky Moment]

You have a perfect right to say that and hold that view, as wrong as it is.  But your employer is also allowed to tell you to respect a person's gender self identification.

Would an employer be allowed to tell somebody to not respect a person's gender self identification?

Interesting question, under present day EEOC regs, discrimination based on transgender status is a civil rights violation; however, the Trump justice department has been working to reverse this.  And it isn't clear how those rules would interact with corporate rights to religious free exercise (!) under the Hobby Lobby decision.

[OttoVonBismarck]

I'd be fine litigating EEOC in the current judicial/administrative environment.

Obama basically invented civil rights law out of thin air with his "expansion" to include mentally ill dysphoria sufferers. At the end of the day of course in the era of Trump executive overreach is basically assumed in the system so Obama's transgressions are small beer by comparison.

[OttoVonBismarck]

You have a perfect right to say that and hold that view, as wrong as it is.  But your employer is also allowed to tell you to respect a person's gender self identification.

I'm fine with that, but if I have tenure and I'm a professor I'm not going to go quietly when someone asks me to reject science and embrace the delusions of a (tragically) mentally ill person.

[dps]

Interesting question, under present day EEOC regs, discrimination based on transgender status is a civil rights violation

Is simply refusing to address someone using their preferred designation even discrimination?  Doing so isn't the same as refusing to provide them with service.  I mean, I really don't want to be called "shithead" but if the cashier at Kroger's calls me that when they rign up my purchase, I might complain that they're being disrespectful, but I certainly wouldn't feel I had any grounds for a discrimination suit if store management didn't make the cashier stop doing that.

[Sheilbh]

What is the court's standards against which these value judgments are to be held? Does the court also have the power to determine what is unworthy of respect in a non-democratic society.

I'm not sure to be honest - it's not my area. My guess is it would probably be linked to the other two elements. So if your philosophical belief is incompatible with human dignity and the fundamental rights of others it will be not worthy of respect in a democratic society. 

It's a little bit annoying that the article's have focused on "worthy of respect in a democratic society" because that's just the test, but doesn't really explain any of the analysis on how the judge got there which is probably more relevant.

Otherwise I think I basically agree with Berk.

I don't understand the difference between a belief and an opinion.

Is there such a thing as a philosophy that doesn't conflict with a fundamental right of someone, somewhere?

I understand how hard it is to adjudicate all human interaction but that code is a horror show.

The Equalities Act just says belief is a protected characteristic and belief "means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief."

So those five tests are what judges have established to define a philosophical belief. I don't think many philosophies conflict with other people's fundamental rights

In terms of opinion v belief this came up in an early discrimination case relating to gay foster care. The claimant was a magistrate who said he couldn't do his job because he might have to place a foster child with a gay couple (which is the law) and asked for a dispensation for those cases. The Department of Justice said that he's a magistrate which means he has to apply the law and if he can't, then he can't be a magistrate. From my understanding his argument shifted and was initially that he thought kids would be guinea pigs in a social experiement, and then moved to it was part of his Christian belief system.

But his initial point was positioned as an "opinion" not a belief. As a matter of principle he didn't think it was impossible that same sex parents would be in the best interests of a foster child, he just didn't think there was any evidence for it but that might change. That's an "opinion based on the present state of information" (as he saw it), not a belief.

[Sheilbh]

Why? What is being imposed on them by this requirement that is so onerous? They are not being asked to stifle their views in general, just to show basic courtesy to other people in a fashion that has become common.

Yeah. This was similar to the approach the Supreme Court took in our "gay cake" case.

They actually briefly considered the US case Masterpiece and a few US cases on "compelled speech" and I saw a decent amount of interest in it from the US.

The main point was that in the UK it was a man who worked at an LGBT community centre in Belfast. He'd previously gone to a bakery for cakes, which were good. He didn't know they were run by very staunch Christians. They didn't know he was gay. The LGBT community centre was running an event on gay marriage in Northern Ireland and he thought it would be good to get a cake so ordered one with the iced message "Support gay marriage", they refused to bake it.

Basically they said the bakery couldn't refuse to provide services to him because he was gay or because he supported gay marriage - but that didn't happpen. And the bakery couldn't have been compelled to ice a message they profoundly disagreed with - whether it was "support living in sin", "support Sinn Fein", "support the Pope" or whatever else - and they would have refused to do that for anyone. But those two are separate things.

[chipwich]

What is the court's standards against which these value judgments are to be held? Does the court also have the power to determine what is unworthy of respect in a non-democratic society.

I'm not sure to be honest - it's not my area. My guess is it would probably be linked to the other two elements. So if your philosophical belief is incompatible with human dignity and the fundamental rights of others it will be not worthy of respect in a democratic society. 

What sort of person would know this? This is an odd gap of knowledge for a UK attorney. Didn't Respect-in-a-democratic-society come up in law school since it appears to be an important concept?

[Sheilbh]

An employment lawyer would know, or maybe someone doing public law or human rights law would come across discrimination too.

Nope - I don't think we even covered the Equalities Act. This is quite specialised employment law. I only did the "core" one year conversion and the core units for an English lawyer are land, tort, equity, contract, EU, administrative and criminal. I can't see that this would come up in any of those classes. And of those I would only say I really know anything about some bits of EU and contract because that's what I do for a living.

This is very much outside the area I work in - which is why I'll read the judgment and chat about it on an online forum, but if someone came to me with a philosophical belief discrimination claim I'd direct them to a colleague

I followed the gay cake case out of personal interest

[chipwich]

How do you know you aren't saying something right now that a judge might declare, apparently on a whim, is unworthy of democratic respect?

[Josquius]

How do you know you aren't saying something right now that a judge might declare, apparently on a whim, is unworthy of democratic respect?

Because this is a casual discussion on an obscure forum. Not an attack on someone's rights in the workplace.

[Solmyr]

Wow, I didn't realize OvB was such a shit.

[garbon]

Wow, I didn't realize OvB was such a shit.

Really? He's always been that sort of troll.

[Tamas]

Wow, I didn't realize OvB was such a shit.

One thing on the, well, difference of opinion there.

I guess it stems largely from whether you consider sex and gender independent of each other. Your birth sex is a done deal you can't change your DNA (I KNOW there's like 0.00000001% of people who are a mix of two sexes, irrelevant). Gender is basically social norms associated with that birth sex.

Those social norms used to be pretty restrictive (and continue to be for most of the world), so feeling the need to redefine your gender in order to switch from one set of societal norms and expectations to another I can understand.

However, as we move toward gender equality - we are still pretty far but I'd say its pretty good compared to even 50 years ago- shan't gender change become increasingly irrelevant and unnecessary?

If somebody wants to dress and behave in ways traditionally associated with the sex opposite to their birth, should not they just do so? Should not the correct expectation from society be to accept this and handle everyone EQUALLY and not to make sure we create sufficient pre-defined categories of gender to divide and differentiate societal interactions toward them?

I guess that's harder in a language that is not gender neutral, but that's something that could change.

[crazy canuck]

You have a perfect right to say that and hold that view, as wrong as it is.  But your employer is also allowed to tell you to respect a person's gender self identification.

Would an employer be allowed to tell somebody to not respect a person's gender self identification?

Probably not. Employers are only permitted to make lawful directions and so a direction to violate a human rights code provision would be highly problematic.

[Solmyr]

Wow, I didn't realize OvB was such a shit.

One thing on the, well, difference of opinion there.

I guess it stems largely from whether you consider sex and gender independent of each other. Your birth sex is a done deal you can't change your DNA (I KNOW there's like 0.00000001% of people who are a mix of two sexes, irrelevant). Gender is basically social norms associated with that birth sex.

Those social norms used to be pretty restrictive (and continue to be for most of the world), so feeling the need to redefine your gender in order to switch from one set of societal norms and expectations to another I can understand.

However, as we move toward gender equality - we are still pretty far but I'd say its pretty good compared to even 50 years ago- shan't gender change become increasingly irrelevant and unnecessary?

If somebody wants to dress and behave in ways traditionally associated with the sex opposite to their birth, should not they just do so? Should not the correct expectation from society be to accept this and handle everyone EQUALLY and not to make sure we create sufficient pre-defined categories of gender to divide and differentiate societal interactions toward them?

I guess that's harder in a language that is not gender neutral, but that's something that could change.

While "let's just ignore gender" is occasionally offered as a solution, it's really not a good one. Many people actually do want to have a gender (including "other") as part of their identity, it just may not be the same gender as they were assigned at birth. To ignore it is basically the same argument as "I don't see race" - sure, but that's not how the world works.