There’s a piece of old Latin wisdom that never seems to lose relevance, no matter how much society changes, no matter how progressive our attitudes become, no matter how educated we strive to be.

Non victoria sine sacrificio – or, ‘No victory without sacrifice’ – simply presents a very simple truth that applies to modern society now as much as it did to our oldest ancestors centuries ago: any battle worth winning comes at a price.

This is certainly true when it comes to how we balance, frame and safeguard conflicting rights and freedoms (especially of speech) when it comes to protected beliefs and the rights of individuals who may be the targets of those beliefs.

In the context of protected beliefs and discrimination, the cost of moving us ever closer to a truly inclusive society may be that we have to find the space and serenity to understand and embrace the fact that finding a path to inclusivity may require us to hear views and opinions that may be deeply uncomfortable to us.

Protected beliefs and the law

Before we go on, it’s probably worth setting out what we mean by the protection and expression of beliefs, and how they are considered in law.

The Equality Act of 2010 – which I’ll refer to as ‘the Act in what follows – specifies 9 protected characteristics upon which any form of discrimination would be unlawful. One of those characteristics is ‘religion or belief’.

Conflict here comes from the fact that although religion and belief are treated as a single characteristic by the Act, they are not directly related. Put another way, ‘belief’ in this context does not have to be identifiably religious or theological in nature – philosophical belief is also included in the definition.

With that in mind, it’s easy to see how the law can create a direct conflict that might affect the very people the Act is designed to protect.

Last summer we were given a very real example of this, when a think tank researcher named Maya Forstater won a landmark victory in a case against her employer.

Forstater claimed her employer – the Centre for Global Development – chose not to renew her contract following a social media post in which she had expressed the view that transgender women could not change their sex.

It’s immediately clear, here, that this presents a very obvious conflict, since other protected characteristics covered by the Act also include gender reassignment and sex (both of which could arguably be directly pertinent in this particular example).

The difficulty here for those people who are, or are instinctively inclined to be, unequivocally supportive of the right of an individual to self-identify in whatever way they choose, is that Maya Forstater’s position flies in the face of that principle.

Moreover, it is a position which many people understandably consider to be at best intolerant and at worst discriminatory.

But whilst the validity or otherwise of her opinion or view is an interesting and perhaps important issue to debate, it’s also not really the point in the context of this article.

What is relevant is how we, whether as a society or an employer, choose to balance the right of someone to express their philosophical belief against the rights and needs of an individual who would, not unreasonably, expect to be protected by the same act of law.

Forstater originally lost her case at an employment tribunal but won on appeal, with the judge concluding that while gender-critical views might be “profoundly offensive and even distressing to many others … they are beliefs that are and must be tolerated in a pluralist society.”

The case was returned to the tribunal, which ultimately decided that “ … it would be an error to treat a mere statement of Ms Forstater’s protected belief as inherently unreasonable or inappropriate.”

The way in which the Centre for Global Development (CGD) initially reacted to this issue shows that resolving a conflict as nuanced as this presents a very real and complex challenge for businesses that find themselves in a similar position.

Ultimately, in seeking to champion the protected characteristics of one community of people, CGD failed to safeguard the protected characteristics of another.

So, what should companies do if faced with the same dilemma?

  1. Evaluate: Businesses need to assess whether the stated belief is significant and/or damaging enough to restrict the individual’s ability to express it. Does any restriction have a valid relationship to the objective of safeguarding another individual or protected community? Could the same goal be accomplished using a less obtrusive approach?
  2. Proportionality: Consider tone and substance, the intended audience, the degree and nature of infringement on others’ rights, and the ensuing effects on the company. Could the stated view be reasonably seen as the company’s rather than the individual’s, and is there be a reputational risk as a result?
  3. Balance: In relation to people whose rights are violated, is there a possibility of a power imbalance that may support taking action? Is there a risk that clients or service users may be influenced to the disadvantage of the business?

Automatic or impulsive responses are rarely helpful. It’s important that companies take a strong position in the safeguarding of protected rights, but any action must be proportionate and demonstrably fair.

The discussion on LGBTQ+ rights and gender-critical attitudes is here to stay. It’s a complex and important principle that divides opinion and can often feel like a lose-lose situation.

But finding balance and equity and ensuring the rights and freedoms of all are adequately protected requires us to hear, absorb, and above all tolerate the expression of views that are genuinely held but which may be uncomfortable for us to hear.

It’s only when we do this that we are able to educate ourselves to set aside our personal preferences and belief structures and take a measured approach to resolution that best serves the interests of both the Act and those it seeks to protect.

And it is only then that businesses will be able to demonstrate a commitment to inclusion and diversity that enables honest and respectful conversation, supported by strong procedures and regulations that safeguard the rights of each and every person.