Being “anti-woke” as a protected philosophical belief under the Equality Act 2010 and broader protections for academic freedom

First, two new philosophical beliefs were found to be protected under the Equality Act 2010. These beliefs are as follows:

“(a) The hereditarianism belief, namely that it is morally and politically desirable to promote the empirical theory that genes play a non-trivial role in group difference, such as intelligence, and/or that hereditarianism should be researched and discussed even if controversial;

(b) The ‘anti-woke belief’, namely that it is morally and politically desirable to promote knowledge of hereditarianism because it undermines the premise of ‘woke’ ideology, that is to say the dominant philosophical belief in academia which holds white people to be morally accountable for all group disparities favouring whites.”

The Grainger v Nicholson test continues to show its breadth and flexibility.

Second, is the extension of the Part 7 association provisions of the Equality Act 2010 to a Cambridge college. To my knowledge, this is a novel finding, and was indeed accepted by the College. This means those who have connections looser than worker or student status at a college, but are nonetheless members in some way, have protection against discrimination and have a right of recourse to the County Court. As philosophical beliefs are an increasingly common vector for protecting speech and academic freedom, this is a notable advancement of the law and marks a broadening of protection for academics.

Third, the court accepted that the College was a hybrid public authority for the purposes of the Human Rights Act 1998. This means it must act compatibly with the European Convention on Human Rights. There would be a direct right of recourse for those whose human rights, including speech and belief, are transgressed by a college. It also means colleges need to be mindful of the OfS guidance for public authorities when applying the duties of the Higher Education (Freedom of Speech) Act 2023. This is a material advancement of the rights of individuals and academics vis-a-vis such institutions.

However, one striking lacuna in the Cofnas judgment is consideration of academic freedom and academic freedom expression. In my research, I have argued that the proportionality test under the Equality Act 2010 and Convention (for determining the lawfulness of interference with Convention rights) must be modulated to give enhanced protection for academic free expression. This is what the Strasbourg jurisprudence demands. A failure to do so is a serious error of law. A future court will need to deal with that point. Watch this space.