Let’s imagine a scenario:-
- Take a well-known transgender (male to female) writer with many books to her name. She is learned, interesting and eloquent, particularly on gender ideology, which she supports and thinks useful to an understanding of human personality and sexuality. She has firmly expressed views that men can become women and the category of “woman” should be more fluid than has conventionally been the case. She has supported campaigns to alter various legal definitions to enable this. She has also stated that she does not wish to see a diminution in women’s existing legal rights.
- She accepts an invitation from a venue – let’s call it “The Forum” – to be interviewed in a series on “Women in the Public Eye” as part of the annual literary festival in the city where The Forum is located.
- The interviews are publicised.
- Some of The Forum’s staff claim to be upset at this writer’s inclusion. They disagree – strongly – with her views. They consider her a misogynist. Some even describe her as a “destroyer of women’s rights”. They say they would feel “upset” and “unsafe” if she were to attend.
- They make their views known to the management of the venue. (It is unclear how representative of all the staff they are or whether the venue’s management seeks to canvas the views of other staff. Nor is it known whether the venue sought to make alternative staffing arrangements so that the staff who did not wish to work at this event could be – temporarily – replaced.)
- The Forum announces the cancellation of its invitation. It says publicly that this is because their staff object to this writer’s views and pro-gender beliefs and that the venue has an obligation to consider the feelings and safety of its staff. So the event will not go ahead.
- The writer is upset. She points out in public statements that the reason given for cancellation discriminates against her because of her belief in gender and that this is a breach of the laws prohibiting such discrimination. The Forum maintains its stance.
- No politicians come to her defence, not even those in the party she has supported, voted and campaigned for and donated to, nor the politician in that party who is a part-owner of The Forum. Some even complain that they are being expected to answer questions about the issue as if it were all a terrible impertinence and inconvenience.
- Following the provision of detailed legal advice to the writer which she shares with The Forum (and its own legal advice) the venue backs down, accepts that it unlawfully discriminated, offers an unreserved apology and reinstates the event.
We do not need to imagine this scenario. It is pretty much what has occurred in relation to the invitation made by The Stand in Edinburgh to Joanna Cherry MP, KC, an invitation cancelled after its staff objected to her presence on the grounds that her views made her, in their words, “transphobic” and therefore they would feel “unsafe” if she were to attend. It has been reinstated following legal advice obtained by Ms Cherry and The Stand. The only difference is that, in the imaginary scenario, the views deemed unacceptable are the opposite of those expressed by Ms Cherry.
It goes without saying that the imaginary scenario above is a clear example of discrimination on the grounds of belief, a protected characteristic under the 2010 Equality Act. It is wrong. It should not happen. Saying this and opposing what the hypothetical venue has done should not – and does not – depend on agreeing with the views of the transgender writer (or anyone else to whom something like this happens).
However, if such a scenario happened, it is pretty much a racing certainty that those applauding The Stand for taking the steps it took (and, in the cases of some, deploring its climb-down) because they object to Joanna Cherry’s views on transgender/women’s rights issues would be outraged at the same thing happening to someone whose views they agreed with. People’s views on free speech do not, it seems, flow from any clearly enunciated and consistent principles. Nor do they pay any regard to the law. For far too many, speech should only be free, should only be permitted if it is speech they agree with.
This is not an issue which started with the women’s rights/trans rights debate. It has been around for centuries – see the arguments in the Christian churches with heretical sects. Or the Puritans. More recently, we saw it with the Rushdie fatwa when, surprisingly, a lot of people one might have expected to have spoken up for a writer in a Western country threatened with a religiously-mandated death by a cleric in a foreign country, a threat supported by many of the writer’s fellow citizens, sought to justify or explain away the threats by claiming that “offence” had been caused by the writer, that those so offended came from a different “culture” and that culture and religion must be respected. It was a dismal sight. It might have had the virtue of honesty if those making these specious claims had admitted they were scared and did not wish to be threatened with death either.
The whole wretched episode also introduced us to the suffix “phobic”, which could be handily attached to whatever belief or category of people needed to be rendered beyond challenge. A new sacred caste could be created and those objecting cast as “phobics”, the 21st century’s version of “heretic”. How marvellously convenient!
The pusillanimous, cowardly reaction manifested itself repeatedly in the decades that followed – over Danish cartoons, the Charlie Hebdo cartoons, a play depicting murder and rape in a Sikh temple and so on. It has been displayed by politicians, publishers, newspapers, theatre directors, gallery directors, academics and many others. Seeking to shut down those with gender critical views is only the latest iteration. It will not be the last.
There have been common themes in the reactions: an admission (often shame-faced) that what has happened is censorship but that the safety of staff and audiences and others is more important. Lately, there has been a refusal even to admit to any censorship. Rather, the focus is only on the “suffering” endured by staff or whichever group is complaining, their “safety” and the overriding obligation to avoid giving “offence” to them. Those who object to censorship or point out what the law requires are described as “phobics” or “bigots” thus making it, at least in the minds of those doing it, wholly unnecessary to engage with their arguments and views, listen to them or pay any attention to the law’s requirements.
What all the different objections over the years amount to – whether described as “blasphemy” (Mary Whitehouse’s objection to the Kirkup poem) or “hurt” and “offence” to a religion (Muslim objections to The Satanic Verses or Sikh objections to plays criticising them) or “feeling unsafe” or as “phobic” or “bigotry” – is no more than “I do not want to hear opinions I disagree with”. Sometimes, it is grudgingly accepted that people might be allowed to believe such things but should certainly not be allowed to express them in public. It is said that no-one has a right to a platform. True. But it conveniently misses the point that the platform does have obligations to comply with UK anti-discrimination and equality laws. It also ignores the fact that it is not simply freedom of belief which is protected but freedom of expression also.
What is also noticeable is the almost total disregard for what the law says on the topic, despite the endless focus on the “human rights” of those who are upset. The European Court of Human Rights in Handyside v The United Kingdom set out very clearly what the principles of free speech and free expression mean.
“The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a “democratic society”. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to “information” or “ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.” [Emphasis added]
What this latest incident shows is that these principles – and the laws enacted to make the principles a reality – are not really valued as they should be. Most worryingly, they do not appear to be valued by politicians. When laws specifically passed to enable equality and freedom from discrimination are disregarded by politicians (especially self-proclaimed progressives), little wonder that others disregard them also.
There are two immediate consequences of this:
(1) People have to constantly go to law to enforce their rights (as Ms Cherry had to do). It is worth noting that there have been at least 5 previous cases on unlawful discrimination on the grounds of belief, 3 of them in Scotland. So the idea that the law on this was unclear and that there were no precedents for the venue is not true.
(2) Even when they win, those legal decisions are often ignored or misconstrued, whether deliberately or out of ignorance (as with the Forstater decision).
What we are also now getting are claims that using the law to enforce one’s rights or to prevent unlawful discrimination is a form of bullying. It is as if those doing it do not want some people to have rights – or these rights – at all. Universal human rights are not, apparently, meant to be universal at all. The other complaint is that requiring staff not to carry out or facilitate acts of unlawful discrimination is, somehow, a form of servitude, an absolutely intolerable imposition. What can also be expected are attempts to prevent lawful events from going ahead at all – not simply protests about them – the “heckler’s veto“, which can itself amount to unlawful discrimination (as recently happened at Edinburgh University).
There is a more fundamental consequence too. If politicians will not support the law in situations which the law is specifically intended to address, it engenders a disrespect for the law as a way of balancing rights and enabling different groups in a society to live together peacefully. Additionally, it renders politicians increasingly irrelevant since their prime purpose is the enactment and administration of laws. What we risk getting instead is an arms race of people shrieking ever more loudly about their hurt feelings and the wickedness / bigotry of others, in the hope that if they shout loudly or behave menacingly enough they somehow “win” – a Tower of Babel of narcissistic “victims”. Emotion rather than critical thinking and law. Is that really what we want? It is a question those Scottish politicians so disinclined to address the Joanna Cherry/The Stand issue should ask themselves.
Human rights – if they are to mean anything – have to apply to all humans, not just your friends. Legal rights – if they are to mean anything at all – have to apply to everyone falling within the category granted those rights. Legal rights – to be meaningful – have to be enforceable. Enforcing your rights is not bullying. To believe so is to believe in Potemkin rights, ones which exist in theory but not in reality. Politicians should not be afraid to say so.
Above all, what those objecting to Cherry, Rushdie, cartoonists or others want is one set of approved opinions, those they agree with. Free speech for me but not for thee. But what this will soon become is free speech for no-one, not even me.
Because what they refuse to understand is that if you do that you are not arguing for freedom at all. You are arguing for totalitarianism of thought and you are doing so because you think you are on the winning side. But, one day, you will not be on the winning side and then it will be you who will be shut down. And what will you say then, the laws and conventions to protect you having been cut down by you in your zeal to enforce your views on others?
Photo by Markus Spiske on Unsplash
