It seems that of the Labour candidates for the leadership, the two female candidates have signed up to a series of 10 declarations regarding the trans community.  The third, Sir Keir Starmer QC has not, at least not yet.  It may be a relief to know that I don’t intend to look at all 10 declarations. But there is one of the declarations which is more than somewhat controversial. It says:


Another version of this adds:


Essentially what they are asking is that the law should accept that a person is of whatever gender they say they are for all purposes and that the belief that this is so should be a protected characteristic, just like, as we saw recently, the ‘philosophical belief’ of veganism.  As always, however the assertion that something is so does not necessarily make it so. The word ’oversimplification’ comes to mind. Is there really no rational debate to be had regarding the difference between sex and gender? Apparently all who consider there to be a difference are transphobic (‘TERFS’) and should be, I’m sure to their utmost concern, refused membership of the Labour Party. And by the way, the suffix ‘phobic’ apparently now means ‘hatred’ rather than fear. More importantly, however, it can also mean that, in an attempt to provide people with additional rights, existing rights can be trampled on. We have just seen this in two different cases - that of the sacked Maya Forstater and of the retired policeman and keen tweeter, Harry Miller.
 
The 65 page judgement of Mr Justice Knowles in the Miller case is a comprehensive statement of how he considers our rights and obligations, including that of freedom of expression, should be reconciled. Mr Miller is someone who tweets, but let’s not hold that against him. He tweeted some uncomplimentary remarks about the validity of the trans community’s views, those who have a purist view of what being a trans person means. One of his many (mostly impolite) tweets said: “I was assigned Mammal at Birth, but my orientation is Fish. Don’t mis-species me f*****s.  Someone to whom his tweets were referred, someone who it seems was a man, but who had transitioned to become a woman, took exception to them.  Amongst other things, she accused him of being ‘the sort of person who would have been anti-Semitic 80 years ago, racist 40 years ago and homophobic 30 years ago’.  The Judge found there to be no justification of any kind for such accusations. So then not very polite on her side either.

Her complaint to the police was however noted on Mr Miller’s record as a ‘non-crime hate incident’. Official police guidance requires this where, as the policeman explained, “I did not identify any criminal offence but I was satisfied that there was a perception by the victim that the tweets were motivated by a hostility or prejudice against transgender people.”. In other words, although the motivation of the person saying the words is vital in showing a criminal offence, the motivation of the person tweeting is irrelevant in recording a ‘non-crime hate incident’. It is only the perception of the complainant which counts. I am somewhat doubtful of the reasoning put forward by the Judge to justify the approach required by the College of Policing, the body issuing these rules, and I am pleased to say that it is to be the subject of an appeal. If the College thinks it a good idea to keep an eye on instances where members of the public 'perceive' there to have been hate speech, then they could do so without attaching it to any particular person’s record.  Problem solved.

What happened after the complaint had been made and recorded, though was most certainly well beyond what should have happened, as the Judge found in no uncertain terms. The police contacted Mr Miller at work in order ‘to check his thinking’. The Judge found that there was a clear intention on the part of the police to dissuade Mr Miller from expressing his opinions on transgender matters in the future. They implied to Mr Miller that any repetition would probably amount to a hate crime, although no explanation of how this might happen was given.  The judge found, on the contrary, that repetition of the sort of things he had been saying could not amount to a crime of any sort. He had been exercising his right to freedom of expression. And so the Judge found, in very clear and explicit terms, that the police had acted as ‘Orwellian-style thought police’.

Based on evidence from Professor Kathleen Stokes of Sussex University and Jodie Ginsberg, the CEO of Index on Censorship, the Judge summed up the general position in the trans debate as follows:: “I take the following points from this evidence. First, there is a vigorous ongoing debate about trans rights. Professor Stock’s evidence shows that some involved in the debate are readily willing to label those with different viewpoints as ‘transphobic’ or as displaying ‘hatred’ when they are not. It is clear that there are those on one side of the debate who simply will not tolerate different views, even when they are expressed by legitimate scholars whose views are not grounded in hatred, bigotry, prejudice or hostility, but are based on legitimately different value judgements, reasoning and analysis, and form part of mainstream academic research.”.

Which takes us on to Maya Forstater. She lost her case against her former employers at the Employment Tribunal. She too had expressed gender critical views, although not as inelegantly as those expressed by Mr Miller. The government is consulting on the Gender Recognition Act 2004 with a view to its amendment to make it easier to obtain a gender dysphoria certificate, including, possibly, by means of the recognition of self-identification of gender. They asked for comment and May Forstater commented. This was her downfall. She says that, like most people, she agrees that transgender people should not face discrimination and harassment as they live their lives. But she, like many well-known academics and women’s rights activists, including Dame Jenny Murray, one of the main presenters of Woman’s Hour and national treasure, was concerned about the impact of gender self identification on women and girls, and in particular on single sex spaces and services such as women’s refuges, hostels, prisons, changing rooms and hospital wards, as well as women’s sports. Someone, however, complained about what she had said, and the result was that she was sacked.

She complained of wrongful dismissal on the basis that her views were a ‘philosophical belief’ and so ought to have protected status under the Equality Act 2010.   As we saw with the veganism case when Mr Casamitjana was sacked by the League Against Cruel Sports – he says because of his vegan beliefs, although they say otherwise - his vegan beliefs were found to be a ‘philosophical belief’ under the Act’s definition. In particular, the Judge found them to be “worthy of respect in a democratic society”. Maya Forstater was not so lucky.  The tribunal ruled that her belief that sex (as opposed to gender) is immutable, is not a belief protected against discrimination. The tribunal found this to be so, because the law currently says that trans women with gender dysphoria certificates are to be regarded in all respects as women and trans men as men. So then her belief that sex cannot be changed failed the tests of being “worthy of respect in a democratic society, of being compatible with human dignity and of not being in conflict with the fundamental rights of others.”. Well that’s a judgement that the rest of us would, I think, hesitate to make. The Tribunal seems not to have considered that it is possible to hold such a belief and also to consider that, even so, a person should be treated as if they had been born as a person of a different sex in particular circumstances.

We shall have to see what the Appeal Courts say, and whether they are prepared to revisit these highly subjective tests. The tests would clearly be failed in the case of, say, a belief that the law prohibiting murder was not justifiable. But was the belief that the law against homosexuality should be abolished one which failed the tests until that law was actually abolished? Does it mean that a belief that the law against blasphemy should be abolished was not worthy of respect in a democratic society until it was actually abolished, (in England) in 2008, but still not worthy of such respect in Scotland and Northern Ireland where it is still a crime? So then despite what I see as the inherent contradiction in the phrase ‘philosophical belief’, I hope that they find that she has one and that it is protected. I dislike the imposition of absolute secular beliefs on us all, just as much as I dislike those imposed on us by someone’s god.

17 February 2020

Paul Buckingham