Comedy club cancellation of Joanna Cherry event is likely unlawful discrimination
Public law lecturer Dr Michael Foran explains what the Equality Act means as it relates to venues like The Stand
The Stand’s cancellation of an event with SNP MP Joanna Cherry is almost certainly unlawful discrimination.
The comedy club called off the event after staff refused to provide service to her. In a statement, the venue said: “Some of our staff have expressed their concerns about Ms Cherry's views and said that they do not wish to be involved in promoting or staging this show.”
The Stand has chosen to permit this and as a result now claims that the event cannot go ahead.
The Equality Act protects people from discrimination on the basis of a list of personal characteristics. These include race, sex, sexual orientation, religion or belief, gender reassignment, disability, marriage and civil partnerships, and age.
If you are a duty-bearer under the Act – for example a service provider such as The Stand – you cannot treat someone less favourably than you would treat others on the basis of a protected characteristic.
Joanna Cherry has a protected belief: gender critical feminism.
This was established in Maya Forstater’s case two years ago, when it was held that the belief that sex is real, important and immutable meets the test for what qualifies as a belief under the Equality Act.
That is called the Grainger test. According to this, a belief must:
- be genuinely held;
- not be an opinion or viewpoint based on the present state of information available;
- be about a weighty and substantial aspect of human life and behaviour;
- attain a certain level of cogency, seriousness, cohesion and importance; and
- be worthy of respect in a democratic society and not incompatible with human dignity or in conflict with the fundamental rights of others.
Gender critical views, therefore, are included as a protected characteristic. And because this is a protected characteristic, you can't be discriminated against in the provision of goods and services on the basis of it.
Cherry (and/or her promoter) has been refused service because staff at the venue take issue with her views. If the views they take issue with are those relating to her gender critical feminism, then this is direct discrimination on the basis of a protected belief, and it is unlawful.
The analogy here would be a venue refusing to provide service to a trans performer because staff refused to serve a trans person, or a venue refusing service to a black woman because staff refused to serve a black person.
Anti-discrimination law has important features to it that should be kept in mind when thinking about this case.
Firstly, this is not like contract law. It does not depend on the nature of an agreement between two parties and although there is freedom to contract, there is no freedom to discriminate in this context.
In general, a service provider can pick and choose who they work with. But the whole point of anti-discrimination law is to create and enforce additional legal duties over and above ordinary private (or public) law.
The Stand is a service provider, and it is subject to a duty not to treat service users less favourably on the basis of protected characteristics. That applies independently of a contractual relationship.
In fact, refusal of service is often the refusal to enter into a contractual relationship. Normally you're free to do that – but not if the refusal is on the basis of a protected characteristic. The same is true of breach of contract, which might give rise to obligations in contract law in addition to those in anti-discrimination law.
Secondly, there is no scope for defending unlawful discrimination on the basis of the discriminatory attitudes or conduct of staff or even customers. This was often used as an excuse: the employer or service provider would be happy to work with a woman or a black person, but you see the other employees won’t stand for it. What can you possibly do?
The answer is very clear: under anti-discrimination law, this is not a legitimate excuse and does not absolve a duty-bearer of the obligation not to discriminate. The Stand can deal with its employees however they wish, within the bounds of the law. But it must not discriminate.
Thirdly, there is no hierarchy of protected characteristics. The legal tests operate exactly the same. If you are a duty-bearer, you cannot discriminate on the basis of a protected characteristic unless there is a specific exception in the Equality Act. That rule applies equally to discrimination on the basis of philosophical belief as it does on the basis of race or gender reassignment.
A service provider cannot refuse service to a trans person because their employees are transphobic or to a black person because their employees are racist, and they cannot refuse service to a gender critical feminist because their employees take issue with her views.
People rushing to defend the legal position of The Stand would benefit from some comparative thinking. If it would be unlawful for the venue to cancel an event because employees took issue with the race or sexual orientation or religion of a speaker, then it is unlawful for them to do so because employees take issue with the protected philosophical views of Joanna Cherry.
Dr Michael Foran is a lecturer in public law at the University of Glasgow.
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