Christian teacher wrongfully dismissed for posts about "madness" of "LBGT [sic] crowd", Court of Appeal

TL;DR: The court of appeal has ruled a school wrongfully dismissed a teacher who reposted anti-LGBTQIA+ rhetoric on her private Facebook page on the basis that it could damage the school's reputation. The case is significant because it further advances the rights of gender-critical people to express their views, albeit only slightly. It does not change that it’s illegal to express transphobia to discriminate in the workplace.

A court of appeal ruling brought by groups including Sex Matters and The Free Speech Union in the Kristie Higgs Vs Farmor’s School case has determined it was wrongful for a school to dismiss a teacher who reposted content calling the "LGBT Crowd" one that shared "madness" and accused the "transgender roster" of brainwashing children.

The teacher, Mrs Higgs, was dismissed from the school after she posted and reposted content to her personal Facebook page to express her opposition to schools saying same-sex marriage is equivalent to marriage between a man and a woman, which, because of her “Christian beliefs”, she doesn't agree with.

Her initial employment tribunal held that her beliefs about gender identity and same-sex marriage were protected by the Act.

In the light of the later decision in the Maya Forstater case, that conclusion was not disputed by the School. However, her claim was dismissed on other grounds, including the potential damage to the school's reputation.

It ended up in the Court of Appeal after an Employment Appeal Tribunal said the reasons for that dismissal were "legally flawed".

Judges Lord Justice Underhill, Bean and Lady Justice Falk concluded that the posts were not sufficient reason to suppose that Higgs had expressed these views at work or would lead her to treat gay or trans pupils differently.

It also found that, because much of the content was "rhetorical" and not "hateful", Higgs was merely endorsing rather than using the language and the account had limited access, the risk of damaging the school's reputation was limited - and therefore not good enough evidence for the school to dismiss her on these grounds  - Judicary.UK

What did the posts Kristie Higgs shared say?

Higgs largely reshared posts rather than adding her own comments. However, the posts in question featured a number of baseless claims, spreading 'groomer' rhetoric and misinformation about the LGBTQIA+ community.

One post claimed a new sex education consultation would force schools to teach that "gender is a matter of choice, not biology". The truth is quite the opposite, the Conservatives consultation planned to ban schools from teaching about gender identity.

The post claimed that the inclusion of LGBTQIA+ people in the curriculum was "totalitarianism aimed at suppressing Christianity and removing it from the public arena."

Other posts described "The LBGT [sic] crowd" as "destroying the minds of normal children by promoting mental illness."

They also claimed that schools were lying to children about "changing of one's genitalia", saying that this it was a form of child abuse. Another said schools were "recruiting children to the transgender roster".

During the court case, Higgs said she was "not against gay, lesbian or transgender people" but that the posts were about making sure people know "what's going on" in primary schools.

She said she didn't regret making the posts and wouldn't have brought this into the school or the way she taught the gay students she knew  - Judicary.UK

Analysis: The significance of the Kristie Higgs Vs Farmor’s School case

This case further inches forward the rights of gender-critical people to express their views, and justify expressing them using the Equality Act's protected characteristic of belief.

What's particularly crucial to take away from this though, is it still doesn't give free reign to be transphobic or express anti-LGBTQIA+ sentiment.

If school policies and dismissal processes had been more robust about what staff members can and can't say on social media, this case - like many other employment tribunals of this kind - would have had a different conclusion.

It did find that if she had shared her personal beliefs in a different context the conclusion could have been different.

Equally, a great deal of weight was placed on the posts on Facebook not being her own, and that if they had been, that also means it may have reached a different judgment.

The most important takeaway is what the case law said on the language in these re-posts. It concluded this language would not be “taken literally” and were “stupidly rhetorical exaggerations” that were therefore not a “direct attack” on LGBTQIA+ people.

The queer lawyers I’ve spoken to suggest this sets an incredibly high bar on what language is permissible and sets a dangerous precedent as case law that will likely become the cornerstone of future legal cases.

As such, gender-critical people will be claiming and spinning this as another huge victory, but it is not as simple as that.

The rights of trans and queer people at work to be free from discrimination have not changed, and that should be held high above the noise.

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