The Scottish Greens have recently announced that they have expelled thirteen of their members for signing a declaration that “sex is a biological reality”, for violating a rule against “trans-exclusionary” individuals being members. In ordinary circumstances, this would merely be yet another amusing instance of parties of the Left being vulnerable to constant splitting and purges. Yet, because of changes in the law in recent years, it instead signals a risky development that could undermine the ability of parties to function effectively. 

In 2019, an employment tribunal made two foolish rulings in the case of Maya Forstater, a woman whose contract was not renewed by her employer over her gender critical views. The first was that the belief in the immutability and biological foundation of sex was protected under the category of “religion or belief” (guaranteed by article 9 of the European Convention on Human Rights). The second, far more foolish, ruling was that this belief was not protected under the law because it fell into the exception (under article 17 of the Convention) designed to ensure Nazism and similarly evil ideologies could not abuse Convention rights to diminish the rights of others. Ms Forstater appealed and the Employment Appeal Tribunal, occupying itself mostly with the question  of article 17, rightly found that her views did not fall into that narrow exception. Unfortunately, less consideration was given to the question of whether or not the beliefs that (for the protection cuts both ways) sex is immutable or that those born apparently male can be women and vice-versa should really be counted in the category the Convention sets aside for “religion or belief”.

The consequence of categorising the belief or disbelief in the validity of gender identity is that suddenly a party cannot exclude members for one belief or another

Now, we are suffering the consequences of that lack of introspection. The law forbids political parties from excluding people from membership because they share a protected characteristic (in contrast to other associations — which can of course be limited to members of, for instance, one religion). The consequence of categorising the belief or disbelief in the validity of gender identity is that suddenly a party cannot exclude members for one belief or another. This means that the Alba Party, which has prioritised preserving biological sex-based services and accommodation, cannot exclude members who (in the view of Alba) want to compromise women’s safety by advocating for trans women in women’s prisons. The same is true for the Greens, substituting only concern for the safety of transgender members instead of women. If a party tries to do otherwise, it can be sued — and indeed the expelled Greens may sue their party. South of the Tweed, Shahrar Ali, a former English & Welsh Greens spokesman, recently sued over just such a point (though the case ended up turning more on the question of due process in the expulsion rather than the core question). 

This goes beyond simply the trans question. The loose definition of what “philosophical” beliefs count as in the category of “religion or belief” means that virtually any political belief could now qualify. After all, many political convictions, from environmentalism to Marxism to libertarianism to anarchism, are coherent, deeply and sincerely held, and cut to the core of identity. The willingness of the courts and tribunals to slide these views into the category reserved for religion and analogous beliefs, when mixed with antidiscrimination law, may leave parties struggling to define a coherent platform. 

The Convention puts beliefs and their expression in three different articles: article 9 (religion or belief), article 10 (free expression), and article 11 (free association). The sociological reason for this is obvious: sectarian strife over freedom of religion (including the right not to be religious) has so frequently torn Europe apart it required special and separate protection. That does not make the views protected by article 10 any less important, but they are in a clearly different social category. This was the logic behind the UK law prohibiting religiously or racially sectarian parties too — there’s a good reason to want to avoid politics devolving into parties for exclusively Catholics, Muslims, whites, or Asians. Yet, the ambiguity in a decision of the European Court of Human Rights on the protection of “philosophical” beliefs left the gate open, and the tribunals of the UK eagerly began seeing almost any philosophical belief as falling into the article 9 bucket. Now, political parties are constrained in disciplining members who advocate against their core policies because any member might plausibly claim that their belief is cogent and important enough to be analogous to religion or belief. 

A party seeking to lead a government, of course, will seek to be a big tent and win votes from a number of sources, and tolerate a diversity of views, within reason. Yet, part of the fundamental freedom of a democratic system is the right for parties to choose ideological purity and fringe coherency over any chance of ever winning over a majority. The Scottish Greens have chosen this latter option, as have Alba in the other direction. It benefits neither those with gender critical views nor those with pro-trans views to be deprived of the right to make parties solely composed of those who believe in one or the other.  

… the use of non-discrimination law to protect such beliefs — essentially expanding it to cover political opinion — is a crude method

If Parliament clarified the definition of “religion or belief” to hew to the original meaning of the Convention more closely, that would not leave those with gender critical (or pro-trans) views without protection. Article 10 guarantees the right to express such views. Yet, the use of non-discrimination law to protect such beliefs — essentially expanding it to cover political opinion — is a crude method which turns political debate into extended legal proceedings. The law is not a panacea for foolishness. If the expelled Green members are indignant over their removal, let them start a new party with a bigger tent view — and leave the expelling party behind. Instead, they are more likely to spend a long and protracted tribunal process, by which time it ends, the public will have forgotten about the whole incident and their possible political advantage wasted. The increasingly popular notion in British politics that the courts and tribunals will solve everything is a dangerously misguided one. The answer to petty political disagreement is not to shove political opinions into the category specially set aside for religion and similar beliefs, but rather to actually win the argument by gaining votes and support. With clarity from Parliament on the boundaries of article 9, we might achieve the better outcome of less time spent in tedious tribunal hearings and more time actually having the debates and arguments that truly matter.