Friday 13 March 2020

A judgment from the future?

I don't know how to explain this. Perhaps it is proof that the universe is really a simulation and this is one of the little glitches in the matrix that people spot from time to time, a bit like the Mandela Effect. All I can do is tell you what happened to me.

So. I was looking through the BAILII (British and Irish Legal Information Institute) website for the most recent cases in England and Wales and I found one dated 2050, namely Taylor v St Mark's Healthcare Trust [2050] EWHC 1893 (KB). It's not on the website any more so I can't give you the link now and you'll just have to take my word for it. I clicked on the link (of course!) and downloaded the case to see what the law will look like in 30 years time. In the event, it was a bit of a disappointment: the case is a pretty anodyne one that simply illustrates that the law will continue to develop in predictable ways. Nonetheless, as it may possibly be of wider interest I've cut and pasted it below and so those who can't wait 30 years for the story can read it now.






Case No: HK47EE03027
Neutral Citation Number: [2050] EWHC 1893 (KB)
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
EMPLOYMENT AND EQUALITIES COURT (HUMAN)

Royal Courts of Justice
Strand, London, WC2A 2LL
Earth

Date: 30 June 2050

Before :

THE HONOURABLE MR JUSTICE STIMPSON
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Between :


DR SHIREEN TAYLOR

Claimant

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ST MARK'S HEALTHCARE NHS TRUST
Defendant

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Eleanor Hutchinson for the Claimant
Kate Banks for the Defendant

Hearing dates: 8, 9 and 10 June 2050
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Judgment


Stimpson J:

1.       I am presented with a claim brought by Dr Shireen Taylor, who alleges that she has been the subject of impermissible religious discrimination in the manner of her dismissal from her employment as a doctor, specifically a geriatric care consultant at St Mark's Hospital, London.

2.        Dr Taylor’s erstwhile employer, which I shall refer to as the Trust, contends that she was dismissed for misconduct, in particular in refusing without reasonable excuse to take part in an EML-pride awareness event.

3.           Dr Taylor's case is that it would be contrary to her strongly held religious beliefs to participate in the event in question, which she quaintly described as a “celebration of adultery”. Whether she was entitled to rely on these beliefs is the dispute that I have to decide.

4.           Before I turn to the evidence I should deal with two preliminary matters.

5.         First, I am aware that there has been a good deal of press interest in this case. In some quarters the case has been described as illustrating an apparent clash between religious belief and modern sexual ethics. This is nonsense. This case is nothing more than the application of the well-established rules of law which balance the legitimate roles of religion and sexual expression in a democratic society.

6.       Second, as I explained to the parties at the outset of the hearing, I am a member of the EML community. This disclosure, which I made as a matter of courtesy, prompted an ill-conceived application made by counsel for Dr Taylor to the effect that I should recuse myself from hearing the case. I dismissed this application. I regret to say that Dr Taylor's counsel thought it appropriate to appeal that decision, but unsurprisingly that appeal was dismissed by the Court of Appeal. I shall of course decide this case without fear or favour and in accordance with my judicial oath.

7.           With those preliminary observations out of the way, I turn to the substance of the dispute.

8.      Dr Taylor is a woman with, until the events with which we are concerned, an unblemished disciplinary record. She studied medicine in London and upon qualifying specialised in geriatric medicine. She became appointed as a consultant at St Mark’s Hospital approximately two years before the events with which we are concerned.

9.            On her appointment, Dr Taylor came into contact with Mr Lewis Smith. Mr Smith is the Trust’s Director of Diversity Outreach. Mr Smith’s evidence, which I accept, is that the Trust operates in a diverse area of south London and that it is important that everyone, no matter what their sexuality, race, gender or religion is, feels comfortable in being treated in the hospital. Moreover, the staff of the hospital also come from a wide variety of backgrounds and his role in Diversity Outreach includes facilitating a number of initiatives to ensure that all the staff, again regardless of their sexuality, race, gender or religion, also feel valued and appreciated. I find that Mr Smith plays a crucial role in ensuring that the Trust can offer the very best clinical care to its patients and the very best support to its employees.

10.     Mr Smith is also a member of the EML community. The extra-marital love community, perhaps more commonly known as the randy community, is a community which, although known in antiquity, has been essentially oppressed and disregarded until recent years. Fortunately, modern society is far more tolerant of those who are sexually attracted to non-spouses and allows such people (including myself) to play a full role in society and contribute to the common good. Indeed, much progress has been made in the last few years in valuing the EML community and validating the life choices of its members: I refer, for example, to the recent Randy Pride March through London. In her application for my recusal, counsel for Dr Taylor referred to a photograph taken at that event showing me carrying a banner inscribed with the slogan “love is love” as somehow indicating an apparent bias on my part, although I fail to see the relevance of that anodyne (and, indeed, tautologous) slogan to the matter at hand.

11.         Mr Smith’s evidence, which was given frankly and without evasion, was that, for so long as he can remember, he has been sexually attracted to large-breasted blonde women in their early-to-mid twenties. He tells me (and I accept) that he was aware of this when he married Mrs Smith around 20 years ago, but that he nonetheless married in the hope and expectation that the love he felt for his wife at that time would allow him to overcome his sexual orientation.

12.         Mrs Smith did not give evidence, but she was present in the courtroom during the trial and I had the opportunity to observe her over several days. I mean no disrespect to her when I say that she is a relatively flat-breasted, brown-haired woman in, I would judge, her late forties. Mr Smith also gave evidence that he preferred women with long hair, and I note that Mrs Smith has short hair.

13.         Unsurprisingly, Mr Smith came to understand that his sexual orientation was fixed: he was, to coin a phrase, born that way. He duly ‘came out’ to his wife as randy about 5 years ago. I can well understand that that was a difficult time for both of them. However, as he put it to me, his wife is “not randyphobic” and she eventually saw that it was important to validate and uphold who he really is, and I commend her for that.

14.         I regret to say that Mr Smith was cross-examined at some length on the subject of his recourse to sex workers in the period shortly before and after he ‘came out’. It is not at all unusual for members of the EML community to avail themselves of the services of sex workers as they struggle to come to terms with their orientation and, indeed, over the longer term. I see nothing worthy of comment in this. It may be that Mr Smith was compelled to arrange sessions with such workers during working hours and/or in the Trust’s premises, but given the evident difficulties in using the marital home for such purposes I do not consider this to be at all surprising.

15.         Mr Smith’s position as Director of Diversity Outreach meant that he was well-placed to support and encourage members of the EML community both locally and in particular within the Trust’s staff. On 22 January 2049, he therefore circulated an email to all staff proposing that the annual Valentine’s Day Disco, which was scheduled for Friday 12 February, would have an randy-pride theme. His email, which was phrased in a light-hearted tone suitable for a social event of this kind, stated: “Randy old goat? Naughty young buck? //  Forget your spouse and come for a f ..... un time!”. The email went on to explain that in order to validate members of the EML community, spouses or partners (other than employees of the Trust) would not be permitted to attend the Disco and that what Mr Smith delicately described as “full participation” would be required by all attendees.

16.         On the following Monday, 25 January, Mr Smith chaired the Diversity Outreach Committee meeting. This is a weekly meeting attended by all consultants and senior management within the Trust. Mr Smith explained that it takes place at 9am every Monday so that everyone in a position of responsibility in the Trust starts the week with a diversity mindset.

17.         The meeting concluded at about lunchtime and Mr Smith and Dr Taylor found themselves exchanging pleasantries over the sandwiches that the Trust provides for these meetings. There was little dispute as to what was said and I find that the following conversation ensued. Mr Smith asked Dr Taylor if she was intending to attend the Valentine’s Day Disco. Dr Taylor responded that her husband would not be happy if she did so. Mr Smith said that it was important for him and other members of the EML community to feel supported and validated by their colleagues and that he hoped that all of the specialisms in the hospital would be represented at the disco. Dr Taylor replied that she was sure that someone from geriatrics would be there to, as she put it, “boogie the night away”. Mr Smith said that in fact the turn-out from geriatrics was going to be poor as he had already had valid excuses from the other consultants in emails sent over the weekend, so unless Dr Taylor attended there would be no one. Dr Taylor then said, and I find that these were her exact words, “in all seriousness, Lew, I’m a Christian and I would regard attending this sort of thing as adultery – I think it’s wrong”.

18.         Mr Smith’s evidence, which I accept, was that he was so shocked by these words that he was unable to reply. He described this as the most egregious example of randyphobia to which he had ever been subjected; he was not challenged on this assertion.

19.         Later that evening, Mr Smith made a complaint to Ms Pearson, the head of Human and Non-Human Personnel Resources at the Trust. I need not recite the history of the treatment of Mr Smith’s complaint in detail. Suffice it to say that the Trust’s HNHPR procedures were laudably swift: Dr Taylor was required not to attend the Trust’s premises nor to use its IT systems the following day, Tuesday 26 January, and she was dismissed from her employment on Friday 30 January.

20.         In order to assist me in determining whether the Trust was justified in dismissing Dr Taylor I have heard evidence from two expert witnesses who practise the Christian Religion, namely Fr Ambrose Adams and the Reverend Maxie Yalding.

21.         I should explain that the Christian Religion, known also as Christianity, is divided into a number of different schools (referred to as ‘denominations’), in a similar way to the familiar division of Islam between the Sunni and the Shi’a schools of thought. Fr Adams is a minister of the Catholic (or Roman Catholic) denomination of the Christian Religion, while Rev Yalding is a minister of Anglican (or Church of England) denomination.

22.         The experts explained to the Court that there is a great deal of historical background to the divisions within the Christian Religion. At one point, it was even proposed that I be taken to an explanation of the mechanism by which Henry VIII obtained his first divorce and thereafter married Anne Boleyn in order to understand some of this background! I took this opportunity to explain to the parties that the evidence before the Court must always be restricted to that which is reasonably necessary to determine the points in issue or else the Court’s time and resources will be wasted on extraneous matters.

23.         It was in the event unnecessary to investigate many of the details of the differences between the different schools of thought within the Christian Religion as it was common ground between the experts that each of them was indeed a Christian. I therefore find that the differences between the denominations are matters of style rather than substance and may be disregarded for present purposes.

24.         Before I turn to the substance of the evidence given by the experts it is right that I should record my impressions of them.

25.         Fr Ambrose is no doubt a highly-qualified religious minster and theologian. However, I regret to say that in his evidence before me he adopted a dogmatic attitude which is unsuitable for an expert seeking to assist the Court. At various points, he refused to accept points put to him in cross-examination despite the fact that they were plainly correct. I refer, for example, to his refusal to assent to the self-evident proposition that matters of right and wrong are simply matters of opinion. I note that his CV mentions that he has a qualification in “Apologetics”: I regret that he did not use this to proffer an apology to the Court for his behaviour.

26.         Rev Maxie, by contrast, was a helpful and polite expert who, I find, was seeking to assist the Court. Rev Maxie was, in my view, equally as well-qualified as Fr Ambrose to opine on matters relating to the Christian Religion, but she gave her evidence in a far less dogmatic (and consequently far more reasonable) manner than Fr Ambrose. For example, when counsel for Dr Taylor put to her the fact that a number of dead Christian authors had expressed views disparaging of those in the EML community, she readily accepted that this was the case, stating that “EML-ophobia is part of the sad history of Christianity”, but she nonetheless maintained that the modern trend in the Christian Religion was not merely a tolerance for those who sexual orientation lies towards extra-marital partners, going so far as to explain that Christians are in her view required to enfold the EML community in a “loving embrace”. In all areas where their evidence differed, I prefer that of Rev Maxie to that of Fr Ambrose.

27.         I now address the upshot of the expert evidence so far as it is relevant to this case.

28.         The Christian Religion is regarded as having been founded by a Jewish man who lived in the first century CE called Jesus Christ. Many of Mr Christ’s sayings and teachings, along with picturesque accounts of incidents from his life, are recorded in the Christian holy book, the Bible.

29.         I accept the evidence of Rev Maxie, which was not seriously challenged by Fr Ambrose, that Mr Christ’s fundamental message was pro-love. It would therefore be highly surprising if Mr Christ’s teaching was dismissive of members of the EML community. And indeed it was not, as I shall explain.

30.         One significant incident in the life of Mr Christ that is recorded in the Bible concerns a woman who participated in an extra-marital relationship. Although Fr Ambrose favoured a different translation, I shall cite the modern translation of the passage, which I take from the expert report of Rev Maxie. In its entirety, the relevant passage states as follows.

John 8:3-11
The teachers of the law and the Pharisees brought in a woman who had taken part in an extra-marital relationship. They made her stand before them and said to Jesus, “Teacher, this woman was caught taking part in an extra-marital sexual relationship. In the Law Moses  [I interject to explain that Moses is a non-Christian authority whose teachings are regarded as persuasive but not binding upon Christians], commanded us to throw stones at such persons. Now what do you say?”  They were using this question as a trap, in order to have a basis for accusing him.
But Jesus bent down and started to write on the ground with his finger.  When they kept on questioning him, he straightened up and said to them, “Let any one of you who is really, really good be the first to throw a stone at her.” Again he stooped down and wrote on the ground.
At this, those who heard began to go away one at a time, starting with the more age-endowed persons, until only Jesus was left, with the woman still standing there.  Jesus straightened up and asked her, “Person, where are they? Has no one condemned you?”
“No one,” she said.
“Me neither,” Jesus said. “I don’t condemn you. Go now and be good.”

31.         Fr Ambrose argued that the parting words of Mr Christ, namely “be good”, should be taken to indicate that the woman’s participation in an extra-marital relationship was not itself to be regarded as good within the Christian belief system. I consider that an impermissible inference. The plain meaning of the passage is that Mr Christ was not condemning the woman in question: that is what he says. Moreover, taking the passage as a whole, it is tolerably clear that Mr Christ is inviting the woman to continue participating in her extra-marital relationship - despite the bigoted disapproval of her contemporaries - so long as she does so in an ethical manner. This is, in my view, a striking example of Mr Christ's progressive moral views, at odds with the times in which he lived, which are no doubt in large part a reason for his religion still maintaining adherents in many human-inhabited territories to this day.

32.         I therefore find that there is nothing inherent in the Christian Religion which has the effect of requiring its members to abstain from participating in events that provide succour, support and validation to the EML community. On the contrary, I am confident that Mr Christ would have been an enthusiastic participant in the Valentine’s Day Disco that Mr Lewis arranged. (I note, in passing, that Mr Lewis’ evidence, which I accept, was that the Disco was a great success and was not adversely affected by Dr Taylor’s one-woman boycott.)

33.         In the circumstances, I do not shy away from the conclusion that Dr Taylor’s actions were motivated not by her religious beliefs but rather by randyphobia (or, more properly, EML-ophobia). I find that Dr Taylor has used the fig-leaf of her apparent adherence to the Christian Religion as cover for her hateful and unpleasant views, which are not acceptable in a modern democratic society. It follows that the Trust was entirely justified in dismissing her.

34.         I am grateful to counsel for their assistance in this case. I invite counsel to draw up an appropriate order reflecting my conclusions.

2 comments:

  1. Good Lord. How terrible.

    The NHS still exists in 2050?

    ReplyDelete
    Replies
    1. Yes, that surprised me too. It seems as if nothing of any substance is going to change.

      Delete