I wrote an article for Discrimination Law Association Briefings March 2026 magazine. It is reproduced with permission. Many thanks to them and especially editor Lisa Crivello.
Introduction
This article is based on a talk I gave to the DLA’s 30th Anniversary Conference in November 2025. It explores how equality law in the United Kingdom has been shaped over the last decade by a growing tendency to frame legal questions as moral battles between opposing sides.
The talk was not focused on the substantive merits of cases or issues, but rather on the ‘mood music’ about conflicts of equality rights which developed as a distinct fashion in the late 2010s.
These conflicts began to be discussed not as a normal (albeit only occasional) feature of equality law, but as evidence of political hostility.
This led to many organisations making serious errors when dealing with protected beliefs that they did not share or felt were unfashionable, particularly in cases involving gender-critical beliefs.
My aim is to consider this shift in approach, why it matters, and what we can learn from the case law.
My central argument is simple. Equality law works best when we recognise that, on occasions, different rights can come into tension. Balancing those rights is not a moral choice – or even worse, an act of aggression – it is the ordinary work of a democratic legal system.
When organisations refuse to acknowledge conflict, or when public debate demands loyalty to one side, legal mistakes follow. The result is poor decision-making, unfair treatment of individuals, and a chilling effect on open discussion.
This article outlines the background to these developments, examines key cases, and reflects on how a more balanced approach can be restored.
A shift in public mood
Since 2010, public debate on equality issues has become increasingly polarised, with many discussions framed as zero-sum contests. Essentially, I observed a shift to a combative public discourse. A growing number of commentators began to describe equality law itself as a political tool to secure the rights of a dominant group, rather than a legal framework that engages proportionality to protect the rights of everyone.
This way of thinking has consequences. When people focus on who the ‘goodies’ and ‘baddies’ are, they stop looking for balance. They stop asking which rights are engaged and how those rights can be respected.
Conflict does not mean hostility. It simply means that different interests must be balanced.
This led to the emergence of several worrying patterns:
a reluctance to acknowledge that rights were engaged on more than one side
a poor understanding of the public sector equality duty
a surprising lack of sympathy for people who experienced unlawful discrimination because their beliefs were unfashionable.
These patterns contributed to a legal environment in which some organisations made serious mistakes when dealing with belief discrimination. Unfortunately, these mistakes often ended up being corrected through litigation.
Before turning to recent developments, it is helpful to recall that equality law has always accepted that rights can conflict. Conflict does not mean hostility. It simply means that different interests must be balanced.
Earlier recognition of competing interests
In 2008, Maleiha Malik (Kings College) wrote From Conflict to Cohesion: Competing Interests in Equality Law and Policy. The paper (commissioned by the Equality and Diversity Forum) made a straightforward point:
“Competing interests and conflicts in equality law and policy are a reality, however, there are also political forces that exaggerate the extent and nature of these conflicts.“
This statement recognises that such conflicts were once treated as normal. It was also accepted that political forces could distort the conversation, but there was no sense that merely acknowledging a conflict was itself an act of hostility.
By the late 2010s, this had changed. Public arguments began to frame the recognition of conflict as evidence of bad faith. This put pressure on lawyers, policymakers and institutions to deny that conflicts existed, even when courts explicitly referred to them.
One striking example comes from political commentary. In 2021, during the Labour party conference, the deputy leader was quoted by the BBC as saying:
“Women’s rights are not in conflict with trans rights“.1
Around the same time, the organisation Trans Actual listed the following as an example of transphobia:
“Claiming there is a ‘conflict’ between trans people’s human rights and those of any other group”
These statements treat the recognition of conflict as politically dangerous. But this position sits uneasily with actual case law. For example, in 2021, a judicial review concerned the placement of transgender women in women’s prisons 3 . The court referred repeatedly to ‘the necessary balancing of competing rights’ or very similar statements.
Yet in private discussions, even lawyers involved in the case sometimes denied that any conflict existed. This shows how strong the political pressure had become. The denial was not based on law; it was based on mood and fashion.
Another theme which arose in public debate was the idea that one set of rights represented progress, and the other represented outdated thinking. Issues were framed as moral battles. This ‘right side of history’ narrative made impartial balancing harder to discuss.
The group Legal Feminist (of which I am a member) wrote in 2020:
“The resolution of a conflict of rights is not a search for the better, more progressive, or most popular cause. The courts are an arbiter neither of moral certainty nor social progress“.4
This reminder is important. Courts are not judges of social virtue; they interpret statute. They weigh rights. They assess proportionality. They decide whether any interference with rights is justified. If public debate forgets this, legal decision-making becomes harder for organisations to navigate.
How conflicts of rights typically arise
Conflicts often arise when both sides hold legally protected rights. A conflict does not imply wrongdoing; it simply means two sets of interests must be considered.
Typical areas of tension include:
- religion or belief and sexual orientation
- gender-critical belief and gender identity
- freedom of expression and the right to private life.
The case law in these areas is extensive and long-standing.
Ladele v Islington Borough Council
In Ladele v Islington Borough Council [2009] EWCA Civ 1357, the courts had to balance rights across several stages of appeal. Lillian Ladele was a Christian and an experienced registrar who refused to conduct same-sex civil partnerships after the law changed. She was dismissed by her employer after complaints by gay colleagues, and brought a claim for discrimination on grounds of religion and belief. Her claim was initially upheld by an employment tribunal but then reversed by the Employment Appeal Tribunal. The Court of Appeal upheld the reversal. In 2013, the European Court of Human Rights dismissed her application, holding that the council’s aim of providing non-discriminatory services justified the interference with her religious freedom.
This decision demonstrates the proportionality approach. The courts accepted that Ladele’s religious rights were engaged, but held that the employer’s aim was legitimate and the means proportionate.
Vancouver Rape Relief Society v Nixon
In an earlier Canadian case, Vancouver Rape Relief Society v Nixon 2005 BCCA 601, a rape crisis centre refused to hire a trans woman. The centre argued that the role required ‘life experience’ as a woman born female. The British Columbia Supreme Court found that this did not amount to unlawful discrimination, a decision upheld by the Court of Appeal. The Supreme Court of Canada declined to hear an appeal.
McFarlane v Relate
In McFarlane v Relate [2010] EWCA Civ 880, a Christian counsellor was dismissed after he declined to provide psycho-sexual therapy to same-sex couples. The Court of Appeal held that the dismissal was lawful. It found the claimant’s rights regarding his religious belief were engaged, but in this context, could not justify the discriminatory treatment of service users.
Eweida and others v United Kingdom
The European judgment of Eweida and others v United Kingdom [2013] 57 EHRR 8 combined several cases on religious manifestation at work. The court accepted that there had been interferences with the claimants’ rights, but went on to consider whether the interferences were proportionate by reference to context and evidence.
The decisions emphasised the need for balance and acknowledged the margin of appreciation given to employers.
Bull v Hall; Black and Morgan v Wilkinson
In 2014, Lady Hale gave the Annual Human Rights Lecture for the Law Society of Ireland on freedom of religion and belief.5 She highlighted two ‘Christian bed and breakfast’ cases: Bull v Hall [2013] UKSC 73; and Black and Morgan v Wilkinson [2013] EWCA Civ
Lady Hale quoted Lady Justice Rafferty in the Court of Appeal as saying
“It would be unfortunate to replace legal oppression of one community (homosexual couples) with legal oppression of another (those sharing the defendants’ beliefs)“.6
However, Lady Hale went on to add
“If you go into the market place you cannot pick and choose which laws you will obey and which you will not“
before concluding
“Fair-minded people may disagree about the application of these principles, but it is clear that we are in the territory of fair balance, between the interests of the individual and the community at large, and between the competing rights of individuals.“
These statements demonstrate a principled approach grounded in balance rather than moral ranking.
Lee v Ashers Bakery
Lee v Ashers Bakery [2018] UKSC 49 is a good example of how public debates can simplify complex legal issues. The public discussion framed the dispute as Christians versus the gay community. But the Supreme Court focused on a different distinction, holding that the bakery objected to the message (‘support gay marriage’) rather than the person.
This was a matter of freedom of expression, not discrimination. The reasoning was subtle. Much of the commentary was not.
Recent developments: a wave of gender-critical belief litigation (2021 onwards)
Since 2021, more than 20 cases have been heard involving gender-critical belief discrimination, harassment or dismissal. Ruth Birchall and Professor Jo Phoenix analysed these in their 2024 paper for the University of Reading, Don’t Get Caught Out. 7 They found:
“The outcomes of recent secular gender-critical belief discrimination claims [2021–2024] is unprecedented … 83 per cent of gender-critical belief claims result in a successful outcome for the claimant (as opposed to three per cent for belief discrimination in general [2007–2021]).“
This is a dramatic shift. As the vast majority were not appealed or upheld, it is strong objective evidence that many organisations misapplied equality law and misunderstood their obligations.
In Forstater v CGD Europe UKEAT/105/20, the claimant, Maya Forstater, worked for a think tank. Her contract was not renewed after she expressed gender-critical views online and in workplace discussions. The EAT held that her gender-critical belief was protected under the Equality Act (EqA). It also observed that belief in ‘gender identity’ would likely also be protected. The judge ruled that a belief is excluded only if it amounts to a ‘grave violation’ of the principles of the European Convention on Human
Rights, meaning it seeks to destroy the rights of others.
The subsequent ET found the decision not to renew the claimant’s visiting fellowship – and not to offer her an employment contract – was taken, at least in part, because of her belief that biological sex is immutable and not to be conflated with gender identity.
The tribunal also concluded she was victimised when her profile was removed from the organisation’s website following her complaints of discrimination.
After the case, many organisations continued to assume gender-critical beliefs were inherently discriminatory, which one could hold privately, but not manifest as this would constitute unlawful discrimination or harassment on grounds of gender reassignment.
They also continued to make policies to accommodate those who came with the protected characteristic of gender reassignment, with no consideration of any conflict with the rights of other groups. This contributed to further litigation.
Several other cases illustrate common errors by employers or regulators:
Bailey v Stonewall and Garden Court Chambers ET/2202172/2020 – the claimant succeeded in direct discrimination and victimisation against the chambers
Adams v Edinburgh Rape Crisis Centre (2023) ETS/4102236/2023 – held the respondent unlawfully discriminated against and constructively dismissed employee Roz Adams, finding management had conducted a ‘heresy hunt’ against her due to her protected gender-critical beliefs
Fahmy v Arts Council England (2022) ET/6000042/2022 – held the Arts Council subjected employee Denise Fahmy to unlawful harassment for her protected gender-critical beliefs, finding hostile comments and a petition targeting those beliefs by colleagues amounted to harassment
Phoenix v Open University (2023) ET/3322700/2021 – held the claimant faced harassment, discrimination and constructive dismissal by The Open University, which failed to protect her from colleagues’ hostility regarding her gender- critical beliefs
Pitt v Cambridgeshire County Council (2024) ET/3311160/23 – the county council agreed to pay over £60,000 in compensation and costs to social worker Lizzy Pitt after admitting to discriminating against and harassing her regarding her gender-critical beliefs and sexual orientation.
One case in particular – Meade v Westminster City Council and Social Work England (2023) ET/2200179/2022 – stands out because of the level of harm identified. The tribunal found the claimant, a social worker, had been subjected to discrimination and harassment by both her employer and her professional regulator. Sanctions were pursued against her because of her private social media posts expressing gender-critical beliefs. She was awarded compensation, including injury to feelings, aggravated damages and exemplary damages against the regulator, reflecting ‘abuse of process’.
When organisations assume one side must always be right, errors follow. People are treated unfairly. Policies become inconsistent. Disputes escalate into litigation.
Two further cases demonstrate the approach taken by the most senior courts:
Higgs v Farmor’s School [2025] EWCA Civ 109 – the Court of Appeal ruled that dismissing an employee for expressing protected beliefs (like gender-critical views) on social media was unlawful discrimination. They found the school failed to prove the dismissal was a fair and proportionate response to the ‘objectionable manifestation’ of those beliefs, rather than the beliefs themselves.
For Women Scotland v Scottish Ministers [2025] UKSC16 – the Supreme Court ruled on how ‘sex’, ‘man’, and ‘woman’ are defined under the EqA, and held they are biological, not based on gender identity or a gender recognition certificate issued pursuant to the Gender Recognition Act.
The arrival of these cases at appellate level indicates that the legal questions raised over the last decade are neither niche nor transient. They concern central questions about rights, belief and equality.
Why so many organisations got it wrong
A striking pattern appears across the recent gender-critical belief cases. All respondent organisations were legally represented, yet many repeated similar errors:
- assuming certain beliefs were inherently discriminatory
- confusing the belief with harassment
- failing to apply the proportionality test
- conducting investigations influenced by ideological pressure rather than evidence
- relying on non-legal guidance from lobbying organisations, even after Forstater.
These errors show how far the public mood had drifted from legal principle.
Organisations often acted as though certain views were automatically harmful, without examining whether conduct actually crossed the line into unlawful harassment.
One contributing factor has been the influence of a ‘no debate’ culture – a wider strategy by some advocacy organisations to limit debate. The ‘Dentons playbook’8 advised activists to avoid obstacles such as public debate or scrutiny of possible consequences of legislative change. This approach encouraged the idea that discussion itself was harmful and, over time, this became organisational culture. Some workplaces and public bodies became reluctant to allow disagreement. People who raised legal or policy concerns were treated with suspicion. The effect was chilling; lawyers, academics and practitioners became wary of discussing equality law. Some faced complaints or attempts at ‘cancellation’, even when they engaged politely and constructively.
By 2019, I had become well known as someone prepared to speak out on social media about what I saw as legal inaccuracies in this area of equality law. This led to self-proclaimed trans rights activists, who disagreed with me, seeking to get me silenced or worse.
In the same year, the DLA invited me to present a workshop on some work I had been doing around giving legal advice and neurodiversity. Evidence emerged that activists were planning to disrupt the event simply because I was speaking (albeit on an unrelated topic). The DLA prevented this and ensured the workshop took place. This stands out as an example of an organisation protecting the space for discussion. Such protection is vital to a healthy legal culture.
Restoring a balanced approach
Equality law assumes that different rights can come into tension and requires organisations to treat those rights with parity of esteem. It does not rank beliefs or identities in a hierarchy. When organisations assume one side must always be right, errors follow. People are treated unfairly. Policies become inconsistent. Disputes escalate into litigation.
A more balanced approach requires a return to core principles:
- Universality: everyone has rights, even when their views are unpopular
- parity of esteem: no protected characteristic is more deserving than another
- tolerance: disagreement is part of democratic life
- recognition: rights can conflict and need to be examined
- proportionality: every interference with rights should be tested, using the structure set out in Bank Mellat v HM Treasury (No.2) [2013] UKSC 39.
The application of proportionality should:
- identify the legitimate aim
- consider the rational connection
- ask whether the measure is necessary
- use the least restrictive means
- weigh the fair balance.
These principles should guide both courts and public bodies. They help organisations avoid the mistakes seen in recent cases.
Conclusion – moving beyond ‘goodies and baddies’
Finally, we need to recognise that moral framing in this context does not help. Describing one group as ‘virtuous’ and the other as ‘suspect’ oversimplifies complex problems. It encourages organisations to act defensively. It makes legal analysis harder. Being on one side or the other of a conflict of rights does not make anyone a ‘goodie’ or a ‘baddie’. It is just part of living in a diverse society.
The aim should be to handle those conflicts with care, respect and legal clarity, not through a moral ranking approach. Equality law is not a tool for moral adjudication or a means to declare a victor in the ‘culture wars’.
When we allow the ‘goodies and baddies’ narrative to dominate, we lose the very essence of a pluralistic legal system, ie, the ability to balance competing rights with impartiality and intellectual rigour. The recent wave of litigation shows that when
organisations replace legal principles with ideological loyalty, they do not just fail the law – they fail the individuals they are meant to protect.
Moving forward, our goal must be a return to the ‘ordinary work’ of the law. By embracing universality, parity of esteem, and the disciplined application of proportionality, we can foster a legal culture which respects the dignity of all – even when we disagree.
1 BBC (2021). “Women’s and trans rights are not in conflict”, says Angela Rayner
2 Transactual UK. “Transphobia”
3 R (FDJ) v Secretary of State for Justice [2021] EWHC 1746 (Admin)
4 Legal Feminist (2020). “Conflict of rights”
5 Annual Human Rights Lecture for the Law Society of Ireland. Lady Hale (2014). “Freedom of Religion and Belief”
6 Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 (para 61)
7 Don’t get caught out: A Summary of Gender Critical Belief Discrimination Employment Tribunal Judgments, 2024, University of Reading Occasional paper
8 Dentons (2019). ‘Only Adults? Good Practices in Legal Gender Recognition for Youth’