Felix Ngole Vs The University Of Sheffield Expression Of Religious Views In Relation To LGBT Does Not Necessarily Connote Discrimination By J.B Nwachukwu

INTRODUCTION

Today, the Court of Appeal in UK, in a landmark decision upheld the appeal of the Felix Ngole (“Appellant”) and overruled the Judgement of Ms Rowena Collins Rice, the Deputy High Court Judge, who on the 27^th of October 2017, dismissed Ngole’s request to review his expulsion from the University as an infringement of his freedom of religion and expression.

In this article, the author amidst the competing interest of LGBT rights and freedom of religion and expression, highlights the succinct points the Court has made, with regards to what religious freedom is.

SUMMARY OF FACTS

Felix Ngole, a Christian, enrolled on the 22^nd of September 2014 as a mature student on the MA Social Work course at the University of Sheffield. Successful completion of this course would have led to registration and practice as a qualified social worker.

In September 2015, the Appellant posted a series of comments on his Facebook account about a prominent news story on MSNBC. The story related to the imprisonment of an American registrar, Kim Davis, for contempt of the order of a US Federal District Court which resulted from her refusal to issue marriage licences to same-sex couples because of her Christian religious beliefs about same-sex marriage. Ngole contributed around twenty posts to the MSNBC Facebook website in response to comments by others. His comments included statements and observations expressing views on same sex marriage and homosexuality:

• Same sex marriage is a sin whether we accept it or not
• Homosexuality is a sin, no matter how you want to dress it up
• Homosexuality is a wicked act and God hates the act
• God hates sin and not man
• One day God will do away with all diseases and all suffering. He will also get rid of the devil who is the author of all wickedness. That day will surely come. But remember that He will also Judge all those who indulged in all forms of wicked acts such as homosexuality.

He also included a number of Biblical quotations,

• “…If a man lies with a male as with a woman both of them have committed an abomination. Leviticus 18:22
• “…Just as Sodom and Gomorrah and the surrounding cities which likewise indulged in sexual immorality and pursued sexual desire, serve as an example by undergoing a punishment of eternal fire. Jude 1
• “…For this reason God gave them to dishonorable passions. For their women exchanged natural relations for those that are contrary to nature; and the men likewise gave up natural relations with women and were consumed with passion for one another; men committing shameless acts with men and receiving in themselves the due penalty for their error: Romans 1:26-28.

These posts were brought anonymously to the attention of the University by another student. In response, the Department of Sociological studies initiated an investigation.

DISCIPLINARY PROCESS

The disciplinary proceedings of the Appellant went through the Fitness to Practice Committee and the Appeals Committee of the University Senate. Unsatisfied with their rulings he appealed to the Office of the Independent Adjudicator for Higher Education (“the OIA”). who affirmed the decision of the University. Unsatisfied with the decision of the (“the OIA”), he applied to the Deputy High Court requesting for a Judicial Review which was dismissed in 2017. This dismissal led to the Appeal.

During the disciplinary process, the School insisted that the Facebook posts were in breach of the HCPC[1] Code and regulations.

COURT OF APPEAL JUDGMENT

In its Judgment, inter alia, the Court held:

We disagree with the judge’s decision and allow the appeal. The University’s disciplinary proceedings were flawed in a number of respects:

1. The University adopted a position from the outset of the disciplinary proceedings which was untenable: namely, that any expression of disapproval of same-sex relations (however mildly expressed) on a public social media or other platform which could be traced back to the person making it, was a breach of the professional guidelines. The University’s stance was not, however, in accordance with the relevant HCPC professional code and guidelines.
2. The HCPC professional code and guidelines did not prohibit the use of social media to share personal views and opinions, but simply said that the University might have to take action “if the comments posted were offensive, for example if they were racist or sexually explicit”.
3. The Appellant immediately reacted (to what he saw as an unwarranted blanket ban by the University on him expressing his religious views in any public forum) by himself adopting a position which was equally untenable: namely, that the University had no business in interfering with his freedom of expression and it was his right to express his religious views and he would continue to do so just as before, whatever the disciplinary consequences. The Appellant’s reaction, whilst perhaps understandable, was also not in accordance with the relevant HCPC professional code and guidelines.
4. The right to freedom of expression is not an unqualified right: professional bodies and organizations are entitled to place reasonable and proportionate restrictions on those subject to their professional codes; and, just because a belief is said to be a religious belief, does not give a person subject to professional regulation the right to express such beliefs in any way he or she sees fit.
5. It will be apparent, therefore, that both sides adopted extreme and polarized positions from the outset, which meant that the disciplinary proceedings got off on the wrong track.
6. At no stage, did the University make it clear to the Appellant that it was the manner and language in which he had expressed his views that was the real problem, and in particular that his use of Biblical terms such as ‘wicked’ and ‘abomination’ was liable to be understood by many users of social services as extreme and offensive. Further, at no stage did the University discuss or give the Appellant any guidance as to how he might more appropriately express his religious views in a public forum, or make it clear that his theological views about homosexuality were no bar to his practicing as a social worker, provided those views did not affect his work or mean he would or could discriminate.
7. The University quickly formed the view that the Appellant had become “extremely entrenched” and that he lacked “insight” into the effect that his actions in posting his views on social media would have. This led the University rapidly to conclude that a mere warning was insufficient and that the Appellant’s fitness to practice was irredeemably impaired and, therefore, only the extreme sanction of suspension from his course was appropriate.
8. The University failed to appreciate two matters. First, failing to appreciate that the Appellant’s apparent intransigence was an understandable reaction by a student to being told something that he found incomprehensible, namely that he could never express his deeply held religious views in any manner on any public forum. Second, failing to appreciate that a blanket ban on the expression of views was not in accordance with the relevant HCPC professional code or guidance. In these senses, it was the University and its processes which could be said to lack insight.
9. It was, in fact, the University itself which became entrenched. First, by failing even to explore the possibility of finding middle ground, despite this being suggested by Pastor Omooba, who accompanied the Appellant at the disciplinary proceedings. Second, by unfairly putting the onus entirely upon the Appellant to demonstrate that he did have “insight” and could mend his ways.
10. The University wrongly confused the expression of religious views with the notion of discrimination. The mere expression of views on theological grounds (e.g. that ‘homosexuality is a sin’) does not necessarily connote that the person expressing such views will discriminate on such grounds. In the present case, there was positive evidence to suggest that the Appellant had never discriminated on such grounds in the past and was not likely to do so in the future (because, as he explained, the Bible prohibited him from discriminating against anybody).

(11) The University gave different and confusing reasons for suspending the Appellant. Initially, it was said (by the Fitness to Practice Committee) that he lacked “insight” into how his postings might affect his ability to carry out “his role as a social worker”; and subsequently it was said (by the Appeals Committee) that he lacked “insight” into how his postings “may negatively affect the public’s view of the social work profession”. Further, at no stage during the process or the hearings did the University properly put either concern as to perception to the Appellant during the hearings.

(12) The University’s approach to sanction was, in any event, disproportionate: instead of exploring and imposing a lesser penalty, such as a warning, the University imposed the extreme penalty of dismissing the Appellant from his course, which was inappropriate in all the circumstances.

With regards to Religious freedom. The Court did further hold

”As the argument developed before us, it became clear how wide Ms Hannett’s[2] submission must be taken. ASIDE FROM EXPRESSING VIEWS ON-LINE OR IN SOCIAL MEDIA, OR SUCH OLD-FASHIONED MODES OF EXPRESSION SUCH AS WRITING IN A LOCAL NEWSPAPER OR SPEAKING OR PREACHING ON A STREET CORNER: EVEN EXPRESSING THESE VIEWS IN A CHURCH, AT LEAST IN A COMMUNITY SMALL ENOUGH FOR THESE VIEWS TO BE KNOWN AND ASSOCIATED WITH THE SPEAKER, WOULD, IT IS SAID, BE SUFFICIENT TO CROSS THE LINE”

“In our view the implication of the University’s submission is that such religious views as these, held by Christians in professional occupations, who hold to the literal truth of the Bible, can never be expressed in circumstances where they might be traced back to the professional concerned. In practice, this would seem to mean expressed other than in the privacy of the home. And if that proposition holds true for Christians with traditional beliefs about the literal truth of the Bible, it must arise also in respect of many Muslims, Hindus, Buddhists and members of other faiths with similar teachings. In practice, if such were a proper interpretation of professional regulation supported by law, no such believing Christian would be secure in such a profession, unless they resolved never to express their views on this issue other than in private. Even then, what if a private expression of views was overheard and reported? The postings in question here were found following a positive internet search by the anonymous complainant. What if such statements had been revealed by a person who had attended a church service or Bible class?”

Despite this victory, this is not the end of Appellant’s case. He must go back to University of Sheffield, where a new panel will judge, in light of this outcome, his fitness to practice as a social worker.

CONCLUSION

This Judgment is indeed a big win for the Freedom of Speech and Religion of many. By this Judgment the Court has affirmed that holding a different view on LGBT does not necessarily amount to bigotry or hate speech, neither does it mean one is discriminating against LGBT persons. This Judgment appeals to reason and logic and should be lauded.

[1] Health and Care Professions Council

[2] Ms Hannett instructed by Pinsent Masons LLP, was the Counsel for the Respondent.