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A shift in identity and its impact on Equalities Law

Posted on 7 April 2021

A recent article commenting on the politicisation of Americans' identities, showed that the rate of Americans identifying themselves using political terms has almost doubled in the past 5 years.

The study analysed a random sample of Twitter bios (i.e. the 160 characters you use to describe yourself) for explicit and implicit political keywords. Explicit words included the terms "Conservative" "Democrat" and "Socialist" and implicit political terms included "woke" and "blue lives matter." The aim of the study was to measure the extent to which Americans are defining themselves by political affiliations and whether they are changing their identity in a way that saliently incorporates their politics.

According to the article, identity represents a threshold beyond mere attitudes and behaviour: it is the all-encompassing sense of self that informs attitudes and behaviour. This description of identity applies to a number of characteristics that are afforded legal protection in the UK, including race, sexual orientation and gender.  

If politics is becoming an intrinsic part of the way in which people self-identify, then it begs the question as to whether an individual's right to political expression benefits from sufficient legal protection.

In Great Britain, the Equality Act 2010 (the "Act") protects individuals from being discriminated against in the workplace because they hold a religious or a "philosophical belief". Although not generally extending to Northern Ireland, which has its own discrimination legislation, the latter is the closest we come to affording individuals protection at work for their political opinions. Case law (see Granger plc v Nicholson) has defined the criteria that must be met in order for a philosophical belief to be protected under the Act. These criteria are:

  • That the belief must be genuinely held;
  • It must be a belief, not an opinion or viewpoint based on the present state of information available;
  • It must be a belief as to a weighty and substantial aspect of human life and behaviour;
  • It must attain a certain level of cogency, seriousness, cohesion and importance; and
  • It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

It is entirely possible that political beliefs fall within the scope of the protections afforded by the Act. Yet the case law that exists on this issue suggests that there are limits. On the one hand, Employment Tribunals have indicated that political doctrines and philosophies, such as Marxism and free-market Capitalism, are capable of constituting philosophical beliefs. So too have they found certain quasi-political beliefs worthy of protection, such as ethical veganism and a belief that all human beings have a duty to mitigate the impending catastrophe of climate change. One the other, they have stopped short of protecting individuals against discrimination that related to their support for, or affiliation with, a particular political party. In one case that exemplifies the distinction, it was found that belief in the Labour Party did not constitute a philosophical belief under the Act, whereas the claimant's belief in "democratic socialism" did (General Municipal and Boilermakers Union v Henderson (Unfair Dismissal) [2015] UKEAT 0073 14 1303).

Whilst identity politics may be slightly less prevalent in the UK than in the US, the rise of political engagement throughout the Western world is undeniable. Despite the restrictions imposed on the Presidential campaigns as a result of COVID-19, the US elections saw the highest rate of voter turnout for 120 years. Similarly, for the 2019 UK elections, voter turnout was at its second highest rate since the landslide 1997 election of Tony Blair.

Arguably, this rise in political engagement has brought with it a shift towards increasingly polarised political groups. Jones and Rogers (the authors of the Twitter study) explain this as tribalism: fostering in-group pride and outgroup animosity. In a political context, studies show that "deliberation tends to move groups, and the individuals who compose them, towards a more extreme point in the direction indicated by their own predeliberation." This was certainly true that the aftermath of the US election, which saw a swathe of Republican devotees (accompanied by a number of alt-right political activists) march on the Capitol demonstrating an almost cultish commitment to their political ideals. Their actions marked an unprecedented assault on modern US democracy.

As Jones and Rogers point out, if people define themselves increasingly by their political allegiances, "their feelings towards political "others" can be expected to become more negative, and debate on matters of policy will become more emotional and intractable". Traditional methods of political persuasion may cease to be of use as changing someone's mind on a particular issue requires "an adjustment to an entire sense of group identity."

Ensuring the protection of political identity through equality law is, therefore, both a blessing and a curse. At a time when it is essential we foster open discussion and debate, will the protection of political identity under the guise of philosophical belief, ultimately lead to more divided communities?

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