Are we allowed to be disgusted by homosexuality?

British free speech advocates feel they have something to shout about this week: Kristie Higgs, a Christian school worker, won her Court of Appeal battle against her former employer. Higgs was sacked for gross misconduct from her pastoral and administrative role after two 2018 Facebook posts. These were largely her reposting content which expressed traditional Christian views on sexuality in criticism of the pro-LGBT sex education at her son’s school. 

Higgs’ employer argued that her posts were liable to damage their reputation. Judges disagreed, since Higgs “had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils.” Her beliefs in the sex binary and heterosexual marriage were found to be protected under the Equality Act.

So far, so good. But examination of the small print suggests a pyrrhic free speech victory, especially for Christians. 

The ruling made by Lord Justice Underhill suggests that Farmor’s School could in principle have dismissed Higgs over such posts out of concern for its reputation — it’s just that they had no “objective justification” for doing so in this case. In discussing “objective justification”, Underhill drew heavily upon one of his own 2021 rulings, Page v NHS Development Authority. In that case, Christian magistrate Richard Page lost an appeal after being dismissed for objecting to a gay adoption since, in his judgement, it would be better for a child to be raised by a mother and father. It was decided that Page could not be expected to carry out his duties without undue bias. His dismissal, then, was “objectively justified”; Higgs’ was not, since judges felt that her views and their expression did not interfere with her work.

All matters of moral and religious instruction have been about the twin cultivation of love and disgust

However, after noting Higgs’ protection of religious expression under the Equality Act, Underhill states:

However, if the dismissal is motivated not simply by the expression of the belief itself (or third parties’ reaction to it) but by something objectionable in the way in which it was expressed, determined objectively, then the effect of the decision in Page v NHS Trust Development Authority is that the dismissal will be lawful if, but only if, the employer shows that it was a proportionate response to the objectionable feature — in short, that it was objectively justified. (175, my emphasis added.)

There could be grounds, then, for dismissal based on the way in which one’s religious views were expressed. 

The prosecution attempted to convict Higgs by likening her case to that of Lilliendahl v Iceland, a 2020 ECHR ruling in which an Icelandic man was convicted over online comments which “described homosexual activity in crude and highly offensive language and referred to it as disgusting.” To be more precise, Lilliendahl referred to homsexuality as “deviant”, in language primarily used for rutting animals. To his credit, Underhill rejected the suggestion that Higgs’ reposts were at all similar to this:

[T]he description of the promoters of gender fluidity as “the LGBT crowd” does not appear to be primarily intended to incite hatred or disgust for homosexuals or trans people. Rather, it is one of a series of derogatory sneers, alongside “liberal school systems’ and “far-left zealots’. The accusations of “child abuse” and the promotion of mental illness may be stupidly rhetorical exaggeration but they are not likely to be taken literally. I do not mean to downplay the offensiveness of the language of the re-posts, but we are a long way from the kinds of direct attack on homosexuality found, for example, in Lilliendahl. (159)

Underhill even stated that an employee’s “protection should not be lost merely because the employee has expressed themselves intemperately” (141), one of the school’s cited grounds for the dismissal.

Things seem clear enough then: the manner in which Higgs expressed her religious beliefs was acceptable, the manner in which Lillendahl expressed his was not.

Yet Underhill’s judgement is not at all reassuring. For one thing, his dismissal of Higgs’ posts as “derogatory sneers” and “stupidly rhetorical” will age poorly. He rubbishes the term “child abuse,” which Higgs used in her posts to describe the teaching of trans ideology. Yet there is a growing acceptance that pushing transgenderism on children amounts to exactly that. One need only look across the Atlantic, where Donald Trump has issued an executive order entitled “Protecting Children from Chemical and Surgical Mutilation” to see this.

More significantly, the obvious question is “where is the line between Higgs and Lilliendahl?” Of course, such grey areas are precisely why judges exist. The law will always need interpretation and application. And yet it is hard to see Underhill’s ruling as a reassurance for conservative Christians. Rather, it feels more like a warning: “thus far and no further.” And yet the Christian tradition and the Bible itself seem a lot closer to Lilliendahl than they do to Higgs. Leviticus 18:22 famously refers to homosexual sex as “an abomination” in the King James. In the New International Version, Romans 1 refers to homosexual sex as “unnatural” and “shameful”. Even if more liberal Christians want to perform unconvincing textual gymnastics to explain these verses away, the core documents of many branches of the church remain uncompromising. The catechism of the Roman Catholic church, for instance, calls homosexuality “intrinsically disordered” and “contrary to the natural law”. Were these statements generated for the first time today, where would they fall between Higgs and Lilliendahl I wonder?

Speculatively, the line seems to fall somewhere in the region of expressing disgust. Lilliendahl used this word, and it is interesting that, rather than the arguably more offensive language about animalistic deviance, it is that word which is usually mentioned with regard to his case. As quoted above, it was partly Underhill’s judgement that Higgs was not inciting “hatred or disgust” that led to her favourable ruling.

But the fact is that, since time immemorial, all matters of moral and religious instruction have been about the twin cultivation of love and disgust. C.S. Lewis noted this in his influential 1943 book The Abolition of Man: “Aristotle says that the aim of education is to make the pupil like and dislike what he ought … Plato before him had said the same … The little human animal … must be trained to feel pleasure, liking, disgust, and hatred at those things which really are pleasant, likeable, disgusting and hateful.” 

All will agree that there is a point at which one’s manner of expression tips over into harassment. But to suggest that expressing one’s religious and moral beliefs in terms of disgust amounts to this is to cut centuries of religious expression off at the knees. It will probably take another ruling — perhaps with Lord Underhill sitting once again — to see if the judiciary is ready to bring the sword down.