Legal Victories Against Cancel Culture Could Backfire on Common Law Free Speech

Lawyers are debating the use of equality laws, that require proving a religious belief system, as a method to safeguard freedom of expression.

One by one, people who lost their jobs for criticising “white privilege,” for saying that trans women are not women, or for challenging other progressive shibboleths have had their cases overturned in court in a series of key tribunal rulings.

But these apparent victories against cancel culture might actually be damaging free speech, according to some legal experts.

Why the concern? Because, in order to win their cases, these people are having to claim that their once run-of-the-mill views are “protected beliefs,” equivalent in law to a religious belief.

So although these cases have won freedom for individuals, some experts believe they are undermining the centuries-old common law assumption that all speech is inherently free. Though some argue that such times require carving out as much liberty out of the legal system as possible.

Gender-critical beliefs, that biological sex is “real, important, and immutable,” is now a protected philosophical belief under the Equality Act 2010, legislation.

More recently, the right to hold and express views which are critical of Critical Race Theory (CRT) has been also protected under the same banner.

Last month, an employment Tribunal ruled that a worker, supported by the Free Speech Union, was expressing a legitimate philosophical belief when he asserted Martin Luther King Jr.’s “colourblind’ approach to racism in opposition to “divisive” critical race theory.

To qualify as a philosophical belief under the Equality Act, the belief must satisfy five criteria set out at Grainger criteria, some of which include that the belief must be “genuinely held “and “not simply be an opinion or viewpoint based on the present state of information available.”

The belief must be proved a core and consistent part of a person’s life. Some protected beliefs include humanism, atheism and spiritualism and even veganism.