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Inspired by the case of the artist Jess de Wahls, who is considering legal action against the Royal Academy after they discontinued stocking her art in their gift shop because of Ms de Wahls's view that trans women are not authentically women and that non-binary identities are invalid. Such a putative action would apparently under grounds related to the Equality Act 2010.

Obviously, the facts of this case may not be entirely known to the public, but as a general question: can the act of no longer stocking the work of a particular artist in an art gift shop really constitute actionable discrimination in England & Wales? It strikes me that all choices of what a small shop made up of numerous artists sells are arbitrary. While Ms de Wahls's views may be protected according to the EAT's recent ruling in Forstater, that doesn't seem to me that it would that a shop has an obligation to endorse those views (but I'm not an expert). For the sake of the question, let us presume as appears to be the case with Ms de Wahls, that there are no breached contractual obligations or an employment relationship between the shop and the artist...

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In addition to the points raised by Dale M's answer, it is important to recall the law as clarified by the Supreme Court in Lee v Ashers Baking Co & Ors [2018] UKSC 49 (aka, the 'gay cake case'). This case found that the providers of business services have a right not to be compelled to make speech with which they disagree without proper justification, under the Human Rights Act 1998. To quote from Lady Hale's judgment (emphasis added):

[56] Under section 3(1) of the Human Rights Act 1998, all legislation is, so far as it is possible to do so, to be read and given effect in a way which is compatible with the Convention rights. I have already indicated my doubts about whether this was discrimination against Mr Lee on the grounds of his political opinions, but have acknowledged the possibility that it might be. But in my view, FETO should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so.

(nb: FETO refers to the statutory equalities instrument in Northern Ireland at issue; the analagous statute here is the Equality Act 2010)

Given that the RA stocking Ms de Wahls was seen by critics as a communication of endorsement of the artist, there is a strong argument that the RA have the right not to be compelled to express endorsement of Ms de Wahl's views. (Whether or not stocking an artist is expressing their views is an open question, but I think the relevant point here is that the communicated message to some in the art community was of endorsement, meaning that RA was dealing with the semiotics of seeming to endorse). I think Lees provides support that the RA cannot be compelled to agree with Ms de Wahls's beliefs.

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Probably not

It would appear that, following Maya Forstater v CGD Europe and Others 2021 UKEAT/0105/20/JOJ, "gender-critical beliefs" such as those held by Ms de Wahls are a protected "philosophical belief within the meaning of s.10 of the Equality Act 2010 (EqA)". At least within the scope of employment law where the Employment Appeal Tribunal's findings are binding precedent and probably more generally.

However, the action taken by the gift shop doesn't fall within the situations where you are protected from discrimination:

Under the Equality Act you are protected from discrimination:

  • when you are in the workplace
  • when you use public services like healthcare (for example, visiting your doctor or local hospital) or education (for example, at your school or college)
  • when you use businesses and other organisations that provide services and goods (like shops, restaurants, and cinemas)
  • when you use transport
  • when you join a club or association (for example, your local tennis club)
  • when you have contact with public bodies like your local council or government departments

Being a supplier to a business is not using a business. Probably.

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