Has UK law quietly shifted from objective standards to perception-based tests in areas such as discrimination, harassment and public order?

[CoolBlueBear]

Having studied law in the early 1980s, I’ve been struck by what seems to be a gradual change in the way these laws are written and applied.

In the past, the emphasis was often on objective questions: what was said or done, and what a reasonable person would make of it. For example, under the Police and Criminal Evidence Act 1984, police powers such as arrest generally depended on objective “reasonable grounds” tests rather than how a particular individual experienced the situation.

More recent statutes often seem to ask an additional question: how was the behaviour perceived by the person on the receiving end? Under the Equality Act 2010, for example, harassment can depend partly on whether conduct was perceived as violating a person’s dignity or creating an offensive environment, although there is still a requirement that it be reasonable for the conduct to have had that effect. Public order law also focuses on whether behaviour is likely to cause harassment, alarm or distress to those exposed to it.

Of course, perception isn’t the only factor, and there is usually still a reasonableness test. But it seems to me that once the law starts taking account of people’s feelings and perceptions, public bodies have much more scope to interpret concepts such as offence, dignity, harassment and discrimination.

Cases involving employers and institutions have shown the courts pushing back where organisations have treated protected beliefs or lawful expression as inherently unacceptable. In cases such as Forstater v CGD Europe, and Phoenix v The Open University, tribunals have made clear that disagreement with or discomfort about a belief is not enough to justify restricting it, even where it causes offence to others.

I wonder whether this helps explain why so many public disputes today end up being arguments about perceptions, identity and culture rather than simply about facts and rules. Has the law itself created more space for these disagreements, leaving institutions to navigate questions that are as much cultural as legal?

Indeed. Another example being 'just a joke, didn't mean to offend, other women with a sense of humour don't mind, so how was i to know?' sexual harassment.
There's a balance to be sought for sure. But I'm not sure where we set it.

So are you saying it's legal to misgender in the work place if the intent was related to a protected belief?

hurt feelings / offendedness

I suspect what's being missed with this framing is that its more about addressing cumulative harms. Subjective experiences and identity are central to understanding the compounding nature of psychological, systemic, or micro-aggressive harms. Recognising individual perception allows laws to penalise conduct that inflicts genuine injury, even when the behaviour is subtle or harder to measure objectively.

This is hardly a new thing. The 1986 Public Order Act (and probably previous public order legislation since the 1930s) made causing alarm or distress in a public place a crime. And surely the magistrates among you must have seen the spectacle of police officers, with a straight face, assuring the bench that they were personally alarmed or distressed by the defendant swearing in order to make out this offence, in the inconvenient absence of other members of the public.

Para 103 of the judgment seems to say so. It says that there are circumstances ( and each case will be different) where you have a right to freedom and expression to essentially misgender if all you’re doing is manifesting your gender critical belief. However para 104 says that you can’t misgender with impunity ie you can’t indiscriminately and gratuitously misgender someone for example just to harass them.

Each case will turn on its own set of circumstances and facts which makes it difficult to extrapolate a general rule.

Para 103 -
“The second error was in imposing a requirement on the Claimant to refer to a trans woman as a woman to avoid harassment. In the absence of any reference to specific circumstances in which harassment might arise, this is, in effect, a blanket restriction on the Claimant’s right to freedom of expression insofar as they relate to her beliefs. However, that right applies to the expression of views that might “offend, shock or disturb”. The extent to which the State can
impose restrictions on the exercise of that right is determined by the factors set out in Article 10(2), i.e. restrictions that are “prescribed by law and are necessary in a democratic society …for the protection of the reputation or rights of others…” It seems that the Tribunal’s justification for this blanket restriction was that the Claimant’s belief “necessarily harms the rights of others”.
As discussed above, that is not correct: whilst the Claimant’s belief, and her expression of them by refusing to refer to a trans person by their preferred pronoun, or by refusing to accept that a person is of the acquired gender stated on a GRC, could amount to unlawful harassment in some circumstances, it would not always have that effect: see para 99 above. In our judgment, it is not
open to the Tribunal to impose in effect a blanket restriction on a person not to express those views irrespective of those circumstances.”

Recognising individual perception allows laws to penalise conduct that inflicts genuine injury,
What is "genuine injury", though? We have seen the weaponisation of the claim of being "most marginalised" even though nobody can ever find what this marginalisation is supposed to be. We need some reasonable-person test, for example "you can't claim victimhood in the UK based on statistics regarding a totally different segment of the population in a different country in a different continent".
If you reduce the concept to "it's my perception and you can't challenge it" then we are back to No Debate.

No one has ever yet been able to successfully explain why having a trans person in an adjacent locked toilet cubicle infringes on anyone's dignity or privacy, but it's enough that some proportion of people feel that it does, despite feelings being unquantifiable
if that’s the case, why does the trans person need to go into the opposite sex toilets? What infringes on them being in adjacent locked cubicles the same sex as them? @Zoonosis

But "not always" being contingent partly on the complainant’s subjective perception & whether it was reasonable for them to have considered their dignity to be violated or that it created an intimidating, hostile, degrading, humiliating or offensive environment.

Which kind of reflects what you were saying about perception based tests.

What is "genuine injury", though?

Psychological, systemic, or micro-aggressive harms.

Yes, I think we agree that the complainant's perception is part of the analysis. Under the harassment provisions of the Equality Act 2010, the tribunal must consider the complainant's perception and whether they felt their dignity was violated or an offensive environment created. But that is only part of the statutory test.

The Act also requires the tribunal to consider the other circumstances of the case and, crucially, whether it was reasonable for the conduct to have had that effect.

That objective element is important because it prevents the law from treating subjective offence alone as determinative. In cases such as Forstater v CGD the courts have emphasised that lawful expression of a protected belief cannot be restricted by a blanket rule simply because others may find it offensive.

What I am wondering is whether some public bodies, when drafting policies, tend to place greater emphasis on the perception element than on the objective and contextual elements of the legal test. If so, that might explain why we see institutions adopting broad rules designed to avoid complaints, only for courts and tribunals later to find that those rules failed to give sufficient weight to reasonableness, proportionality and freedom of expression. It may be one reason why so many disputes involving identity and belief are ending up in court.

Psychological injury can be recognised by law, but concepts such as "microaggressive" or "systemic" harm are not freestanding legal injuries. The question is whether the conduct falls within an established legal cause of action, not whether someone sincerely feels harmed by it.

If feelings alone are enough, the argument works both ways. Some women may say their dignity is affected by sharing facilities with a transwoman, while a transwoman may say her dignity is affected by being required to use male facilities. The difficult legal question is not whether either group sincerely feels that way, but how those competing interests should be balanced using objective principles rather than simply counting feelings.

Well yeah evidence like proof that the claimant has suffered a recognisable psychiatric illness (e.g., Post-Traumatic Stress Disorder (PTSD), severe clinical depression, or an anxiety disorder would need to be provided.

Those competing interests should be balanced in favour of current law until such time as that law is changed.

I thought this was going to be an interesting debate, do people really want it to be just another thread about trans people and toilets?

yes it’s a large part of the attraction for many. Nondescript, boring little men power tripping and getting one over on women.

I agree but think it's a wider issue around quantity and quality of legislation and increased weakness and desperation of governments to 'do something'. It started with Thatcher and grew under Blair, whose govts were obsessed with legislating.
It's got worse with the rise of social media, where people who don't understand law demand 'change', and govts, in thrall to trying to be popular, bash out some usually unnecessary, and certainly badly-drafted nonsense to win votes.
It's also relevant that our FPTP electoral system makes govts even more desperate and short-termist than they otherwise would be.
Added to that that many lawyers appear to have outsourced their brains, and are far too niche in their specific areas of law. And that much of the civil service is a shitshow.
So I don't think it's on purpose, but the interlink between rising levels of thoughtlessness, social media, and our political system, really make for a right clusterfuck.

Not sure why the issue of TW in women's toilets is being raised in this context. The provision of women only toilets are for biological women and if anyone thought otherwise the Supreme Court ruling has made that clear.

But I think as referred to up thread there is a huge difference between what might happen in a court, and what has and is happening in places of employment, events.

There have been many, many threads about examples of this, as well as, which is part of the same trend, is students telling other students they shouldn't attend an event.