When it became clear that gender critical belief is protected in our anti-discrimination law, it was often said that, while such views were protected, manifesting or expressing them was not. This is simply not true. Article 9 of the European Convention on Human Rights protects both the absolute right to hold a belief and the qualified right to manifest a belief. The manifestation of protected beliefs is also protected under Article 10, which protects the right to freedom of expression. Because these are qualified rights, it may be permissible to interfere with them where proportionate. Where discrimination or harassment arises because someone holds gender critical views, this will be unlawful. However, where the treatment complained of is a genuine response to the fact or manner of manifestation of a protected belief, the legal situation becomes more complex. In assessing the extent to which is it permissible for an employer or other duty-bearer to interfere with the fact or manner of manifestation of a protected belief, the central importance of freedom of expression must be recognised as the background context of any analysis.

This use of preferred pronouns for those with trnsgender identities is extraordinarily contentious within the context of debates on sex and gender identity. This chapter begins by exploring why pronouns are so contentious, arguing that their use is an important signifier of underlying beliefs about the relationship between sex and gender identity. From here, the chapter explores whether and under what conditions an emplouyer could interfere with the expression of employees to prohibit or compell the use of particular pronouns. It concludes that this will require a fact-sensitive analysis which begins from the understanding that the right to freedom of expression is robustly protected, especially in the context of compelled speech.

The Court of Appeal in Higgs v Farmor’s School has provided a detailed analysis of the relationship between anti-discrimination and human rights standards in the workplace where employees manifest protected beliefs. Unfortunately, this analysis suffers from a central flaw by presuming that if manifestation of belief is protected under direct discrimination, it will always be unlawful for an employer to interfere. It is this presumption which prompted the Court of Appeal to defend the introduction of a justification test into what was previously a factual analysis of causation, by deeming less favourable treatment in response to ‘objectionable’ manifestations to have not been ‘because of’ the protected belief itself. This chapter argues that such an approach is unnecessary because it responds to a problem which does not exist. It is simply incorrect to presume that protection from direct discrimination necessarily implies that any interference with the manifestation of a protected belief is directly discriminatory. The ordinary application of the Equality Act is already coextensive with the protections afforded under the European Convention on Human Rights. Any interpretation needed under s.3 of the Human Rights Act is needed within the sphere of indirect discrimination, not direct discrimination.

The Equality Act provides protection against discrimination on the ground of various protected characteristics: sex, race, disability, age, religion and gender. It protects against direct discrimination where there is adverse treatment because of a protected characteristic, and also indirect discrimination where the same rule is applied to all groups but has an unjustified and disproportionate adverse effect on a group. Adverse treatment includes harassment and victimisation. There is in addition a duty of reasonable accommodation for disabled workers. The law also requires equal pay for women for similar work or work that has equal value to that performed by men.

During 1969, growing GI dissent intersected with movement outreach and the opening of new coffeehouses to expand civilian/military collaboration. More government leaders publicly supported antiwar activism. The Woodstock festival was the most visible sign of increased overlap between political and cultural dissent. Various elements of the movement coalesced into the most spectacular outpouring of antiwar passion in the nation’s history during the October Moratorium. Repression of the antiwar movement escalated under the Nixon administration. Activists faced local red squads and vigilante attacks on GI coffeehouses, as well as administration threats against the media, conspiracy trials, and intelligence agencies using COINTELPRO and Operation CHAOS. The president’s fear of stimulating additional antiwar sentiment contributed to his decision to keep secret his expansion of the air war into Cambodia. National Security Advisor Henry Kissinger met with various dissenting groups to buy additional time. Once Nixon developed his Vietnamization policy, it forced the movement to adapt to new circumstances, but local grassroots activism and conventional dissent persisted.

In contrast to conservatives, progressives argue that platforms don’t block enough content. In particular, progressive critics point to the prevalence of allegedly harmful content on social media platforms, including politically manipulative content, mis- and disinformation (especially about medical issues), harassment and doxing, and hate speech. They argue that social media algorithms actively promote such content to increase engagement, resulting in many forms of social harm including greater political polarization. And they argue (along with conservatives) that social media platforms have been especially guilty of permitting materials harmful to children to remain accessible. As with conservative attacks however, the progressive war on social media is rife with exaggerations and rests on shaky empirical grounds. In particular, there is very little proof that that platform algorithms increase political polarization, or even proof that social media harms children. Moreover, while not all progressive attacks on social media lack a foundation, they are all rooted in an entirely unrealistic expectation that perfect content moderation is possible.

Chapter 6 uses doctrinal analysis to ask what the word ‘disfigurement’ means, and whether we can justify treating disfigurement differently from the related concepts of appearance and obesity. It identifies significant gaps created by a law which only protects a small subset of people experiencing appearance disadvantage – those with severe disfigurements – and which excludes many of those disabled by social barriers because of other aesthetic differences, such as those experiencing hair loss, those whose bodies are differently sized or those with facial movement impairments (such as facial palsy or synkinesis). It doubts whether these inconsistencies and mixed messages can be justified. It also considers whether other protected characteristics – such as sex or age – can be drafted in to fill the gaps in legal protection, but concludes that this may amplify the inconsistencies within the law.

Educators in Australia have a duty of care to their students, inclusive of both a moral and legal obligation to ensure the safety and wellbeing of the students in their care. Specifically, this duty requires educators to take reasonable measures to protect students from experiencing foreseeable harm; failure to do so may constitute negligence. In the simplest sense, a foundational element of educators’ work is to ensure the schooling environment is a safe one, free from bodily or mental harm. In practice, this may be more complicated than it sounds. Students may reserve verbal abuse and/or physically violent behaviours for when school-based adults are not present, making educators’ intervention more challenging. Further, individual schooling cultures may inadvertently encourage or discourage these forms of harassment through the messages of in/tolerance that educators convey to their students via their un/willingness to engage when particular students identity characteristics are targeted for harassment or victimisation.

Chapter 8 rewrites Clark County School District v. Breeden, which held that the plaintiff’s retaliation claim under Title VII failed because no reasonable person could believe that a single incident of harassment violated Title VII. The rewritten opinion, exposing the bias many women suffer in the workplace as a result of micro-aggressions and using the perspective of a reasonable person in the plaintiff’s shoes, holds that complaining about even a single incident of harassment is sufficient to constitute a reasonable belief that the plaintiff is experiencing harassment. The rewritten opinion also broadens the causation element in retaliation cases in two ways. First, it refuses to set a bright-line rule for the passage of time between the protected activity and the adverse employment action. Second, it allows mixed-motive causation rather than but-for causation, which would make retaliation claims easier to win and would have eliminated the Nassar case, where the Court held that plaintiffs had to prove that retaliation was the but-for cause of the adverse employment action.

In Chapter 5, Meritor Savings Bank, FSB v. Vinson and Oncale v. Sundowner Services deal, respectively, with the proof standards for sexual harassment and the question of whether and when Title VII forbids same-sex harassment. The rewritten Meritor dramatically alters the standard for employer liability, holding employers strictly liable for sexual harassment by supervisors, with no affirmative defense. Rewritten Oncale concludes that same-sex harassment (and hence harassment based on sexual orientation and gender identity) are illegal sex discrimination that occur “because of sex.” By making employers strictly liable, the rewritten Meritor would have effectively precluded hundreds of subsequent lower court cases and two Supreme Court cases. While the original Oncale openly refused to relate the egregious harms that the plaintiff had allegedly suffered, the rewritten opinion employs feminist storytelling techniques to demonstrate the harms suffered by the male plaintiff at the hands of his male coworkers. It explains that harassment by men of other men often occurs because of societal pressures on men to prove their masculinity and to police the boundaries of sex and sexuality.

Chapter 2 demonstrates how the US Supreme Court could have used the feminist technique of storytelling by rewriting Desert Palace v. Costa from the perspective of the plaintiff, who received a jury verdict in her favor in the district court. The feminist judgment corrects the Supreme Court’s willingness to allow the defendant to write the plaintiff’s story by detailing the egregious facts in the case that shed light on the gendered treatment she suffered – treatment that included repeated severely hostile behaviors among her coworkers and differential treatment by her supervisors. The rewritten opinion gives the reader a significantly different view of the case from that offered by the original opinion. The rewritten opinion demonstrates that the feminist method of storytelling illuminates the ways in which the facts occurred in the real world, and in doing so creates a counterbalance to the supposedly “neutral” and “objective” view that the Court originally presented.

OSH laws can hinder persons with disabilities, but they also contain provisions that can be used to promote psychosocial diversity at work. The operation of OSH duties to protect workers’ psychological health requires increased attention following the adoption of the UN Convention on the Rights of Persons with Disabilities (CRPD). The CRPD introduces a new paradigm for analysing international and domestic OSH laws. This chapter argues that if workplace practices followed the psychological health component of OSH laws, then OSH laws change from being a barrier to equality to a means of supporting psychosocial diversity at work. While OSH laws have the potential to promote psychosocial diversity at work, although not appropriately enforced by the state, they also represent a significant roadblock to ability equality. OSH laws require businesses to intervene where manifestations of psychosocial diversity can create actual, probable or perceived risks to health and safety. The failure to appropriately discharge OSH duties for a worker with psychological needs results in that worker with a disability being disadvantaged by the operation of other OSH laws.