Month: November 2020

On 13 October, I published a short piece here entitled I’d like to have an argument, please. It was an invitation to any practising or academic lawyer who disagrees with my “gender critical” stance on the interaction of trans rights and women’s rights to enter into a relaxed and mutually respectful email dialogue with me, exploring our disagreement with a view to publication in due course. 

Public statements decrying the toxicity of this debate are becoming routine, and there is some real justification for those laments. But there is a debate that needs to be had: far-reaching changes to the law are sought, and opposed by gender critical feminists as creating dangerous and undesirable incursions into women’s rights. We can’t find out who is right by silencing one side or the other as bigots: we need to test the arguments. 

Lawyers, in general, are an argumentative crew – in court, in their workplaces, and over their dinner tables. In general you might think that robust but civilised public argument as a way of testing ideas wouldn’t be a hard sell to them. It is after all our thing. 

But not on this subject, apparently. In my own circle, friends – including lawyers – who think I am wrong about this simply won’t talk to me about it. 

So I issued the invitation publicly. The Legal Feminist Twitter account tweeted out I’d like to have an argument, please to its 16.3K followers several times over the days that followed its publication. I’ve emailed the link to colleagues whom I know or believe to differ from me on this, to ask them if they might engage, or know of anyone else who might. The Discrimination Law Association emailed the invitation to all its members. 

The  Employment Law Bar Association declined my request for help finding a candidate on the basis that they don’t “tend to publicise any individual members’ projects.” The Employment Lawyers’ Association decided not even to consider my request until after a working group on a related subject has completed its task. 

Finally, from the Legal Feminist Twitter account, I tweeted to several of the big beasts of legal Twitter to ask them if they would amplify the message. With one honourable exception, they neither gave me the amplification I sought nor politely declined to do so; they just ignored me. 

The response to my invitation – which has been widely circulated notwithstanding the failure of many of my efforts to get it amplified – has been a deafening silence. 

This is a strategy feminists have met before. We say it politely; we are ignored. We say it again; we are ignored. We say it insistently; we are ignored. We start to get a bit cross; we are ignored. We yell. “Aha,” they say; “Bad faith! We can’t be expected to engage with you – you’re rude and screechy!” It’s a strategy men have used to sideline women since time immemorial. “TERF” is the new “harridan.” 

One young barrister (whom I shall call Andrea) from a prominent human rights Chambers did respond. Since she is the only lawyer who has even done me the courtesy of trying to  explain why she considers this project doomed, I’ll address her points in some detail.

Andrea compared my invitation to a picture of a man sitting behind a table with a banner reading “Male privilege is a myth. Change my mind,” and followed up:

I’m not really sure you can argue for freedom of debate, while dictating to the other side of that debate that they are not allowed to hold or express certain views you find distasteful…

This was peculiar, because there was nothing in my invitation that sought to dictate anything of the sort. On the contrary: much of the point of the invitation is to push back against widespread attempts – which have already met with some success, in particular in an employment tribunal’s decision (pending appeal) in Forstater v CGD – to place the views I hold beyond the limits of what it is permissible to say or even think. 

When I emailed Andrea a first draft of this article for comment, she explained: 

I read the whole premise of your introduction as being that the discussion needed to be of an appropriate and agreeable tone, meaning (I assumed) that if someone said the GC view was transphobic that would immediately be rejected as ‘not playing by the rules’ of the conversational contract. That is why I consider the invitation to be far from neutral, but to involve you dictating to the other side of the debate what they are allowed to express. Apparently, it is not “OK” in a civilised debate for me to say I believe a view to be transphobic. That doesn’t sound like open and fair discussion to me.

That didn’t make matters any clearer. I had said nothing to suggest that a discussion of whether the GC view was transphobic was off-limits: on the contrary, that is exactly the kind of question I was hoping to discuss. Andrea had read the call for respectful debate as in itself necessarily implying that I would seek to exclude certain valid questions. My original invitation had ended:  

I won’t try to set detailed ground rules now, because I think those are better negotiated 1:1. But I will suggest that we should each be willing to attempt direct answers to each other’s questions.

Andrea also took exception to the fact that no trans person was to be involved in the debate. When I countered that there were trans lawyers who could have come forward, she said that she wholly understood why a trans person would not want to have this discussion. This is a splendid bind: I must not have a public debate with one other person that touches on trans rights if the other person is not trans; but at the same time, I can’t reasonably expect any trans person to be willing to debate with me. Gotcha. 

But even without the bind, it would be a bad point. It would be unsatisfactory if a public body or a charity or a Parliamentary committee were to discuss these matters without involving all stakeholders, but (as I’d have thought was tolerably obvious) I am none of those things. 

Andrea added: 

[T]here is something of a generational divide on this, meaning it is likely to be a junior barrister in debate with a senior barrister. This is professionally risky for someone trying to establish themselves at the bar in circumstances where potential leaders in cases are likely to disagree with you…

I am fairly senior, at a little over 25 years’ call, and reasonably established; I’m lucky to be a member of a good set of chambers. But if I’m an object of terror to any junior member of the Bar, they have chosen the wrong profession. We all have to be willing to disagree publicly and robustly with more senior members of the Bar on a regular basis; and – newsflash – there are barristers much scarier than me out there. Or if the point is that it might be career-limiting to take the gender uncritical position in public, that sits oddly with the readiness of so many young lawyers to do exactly that on Twitter. 

In any case, although there is probably some correlation between GC feminism and maturity, there are plenty of senior lawyers who disagree with me on the subject. And as I had already pointed out: the exercise actually represents a much lower risk for a junior lawyer who stands to win “plucky beginner” credit whatever the outcome of the debate than for a prominent trans ally with an established reputation. Years ago, I worked at the Free Representation Unit, supporting volunteers at the very beginning of their careers in providing pro bono representation in employment tribunals. In those days, plucky beginners willing to take on senior juniors or even QCs were never hard to find. I doubt that’s changed. 

So what’s going on here? Why won’t anyone have this conversation with me? 

If and when you succeed in inducing in me that tell-tale discomfiting ripple of cognitive dissonance, I won’t swerve or bluster or obfuscate or cry foul and run away: I will treat it as a signal that I need to do some hard thinking, perhaps some radical re-thinking. Will you promise me the same? 

Is it that gender critical views are so extreme or unusual that they don’t merit being taken seriously enough for debate? Far from it; they are mainstream. I used to amuse myself from time to time, at social events full of lawyers, by eliciting a belief in the biological reality of sex from senior, and socially conservative, male colleagues, and then acquainting them – to their bemusement – with the fact that this meant they were now officially Trans Exclusionary Radical Feminists. 

Is it me? Am I just too terrifying an opponent to take on? I really don’t think so. My professional life would be one long pushover if that were so.

Or is it that lawyers are too peaceable, modest and publicity-shy to want to conduct a public argument on a topical subject? Really? 

In answer to my first draft, Andrea said: “It does not indicate anything about the strength or credibility of a person’s views that they choose not to engage.” 

That may be true of any given individual: this one is too emotionally engaged to relish a public debate; another simply doesn’t care enough about the issues; the next lacks capacity this month; the next but one genuinely believes that these are matters that it is indecent to debate; yet another would have loved to, and clears his throat to begin, but then recalls that he hasn’t cleaned behind his radiators in ages – and so on. 

But it’s not one particular UK-based gender uncritical lawyer who has declined this debate, nor even a handful; it’s all the hundreds or more likely thousands who are aware of the invitation. There’s some force in play here more systematic than a series of unrelated impediments. 

I’m driven to the conclusion that even those who espouse the non-GC view vociferously – whether inTwitter spats, blog posts or lengthy, heavily-footnoted journal articles –  know at some level that their position is indefensible. 

I’m a decent enough lawyer, but there are plenty better. I know what it is to be intimidated by the intellectual fire-power on the other side. Nevertheless I wholeheartedly relish the prospect of this debate: I am fearless of anyone, however distinguished or brilliant they may be, because I am so sure of my ground. The opposing positions are so riddled with logical fallacies, circular arguments and flat-out idiocies that none of my gender uncritical colleagues – not one single one of them – has the stomach for  trying to defend them publicly in friendly rational dialogue with me. Moreover, the big beasts of legal Twitter whom I approached seemed not merely not to want to take part in the argument themselves: they didn’t want to do anything to help it to take place.

There’s a risk in saying that. “Aha!” they will say, “This proves what we suspected all along: you’re not approaching this in good faith. You don’t want the amiable respectful conversation you say you want at all – you just want someone to jeer at and score points off so you can look clever!” 

So let’s look that one straight in the eye. Of course I like looking clever in public. Who doesn’t? Of course I like winning arguments. What lawyer doesn’t? Of course I am convinced that I am right – or I wouldn’t be trying to pick this fight. And on this subject, it is true that I can’t at present imagine how I could be persuaded otherwise. But I could be wrong. Believe me, I know that I am fallible. My factual beliefs have been changed by evidence before now, and my opinions by persuasive argument – and I sincerely hope they will be again. And I promise you this from the bottom of my heart. If and when you succeed in inducing in me that tell-tale discomfiting ripple of cognitive dissonance, I won’t swerve or bluster or obfuscate or cry foul and run away: I will treat it as a signal that I need to do some hard thinking, perhaps some radical re-thinking. Will you promise me the same? 

If your argument is nonsense from beginning to end, #NoDebate is indeed your safest strategy. It’s an intellectually dishonest strategy that does our profession no credit at all. 

Am I wrong? Well, the offer still stands.   

This piece was originally published in The Lawyer on 23 November 2020.

The decision in the Johnny Depp libel trial extends to 585 paragraphs of text. It is not a judgment which is easily skim-read or which lends itself to cherry picked quotes. It is divided into sections: §1 – 37 recounts the background and procedural history; §38 – 46 sets out the law. §48 – §74 set out what the Defendant (the Sun) and the Claimant (Depp) each said about fourteen separate incidents (broadly, the Sun asserted that there was domestic abuse and Depp denied it). At §75 – §84 the ‘ordinary meaning’ of the articles is considered. §85 – §94 sets out the evidence which was heard. §95 – §106 sets out the background to the relationship between Depp and Ms Heard.

At §107 – §205 the judge considered a number of factors raised by the Claimant as to why Ms Heard should be disbelieved out of hand – attacks on her credibility. These were rejected, and the judge went on at §206 – §573 to set out each and every incident, the evidence on it, whose evidence he preferred, and why.

At §574 – §583 the summary of conclusions on the evidence as a whole are set out, and finally §584 – §585 gives the conclusion itself.

It is important when looking at the judgment to bear in mind that this is not Depp v Heard, but Depp v Sun Newspaper. That is to say – Amber Heard did not herself publicise the allegations thereby triggering the libel claim. She was dragged into the spotlight not to defend her own reputation, but as a witness in defence of the Sun. Though publicly vindicated, this process has not been one of her own choice.

It is also important to note that this was not a criminal case, although it did involve allegations of criminal conduct. The standard of proof was the civil standard of ‘balance of probabilities’ – was it more likely than not.

So what of the counter-allegations? Depp also alleged that Heard had hit him and produced audio evidence of an alleged confession. Were these simply ignored by the judge? The answer to that is no: these were raised and considered as part of the factors raised as an attack on Ms Heard’s credibility. Audio recordings by both were taken into account but viewed as less rigorous evidence than that which is tested in cross examination. Ms Heard accepted that she had thrown pots at him and also on one occasion slapped him, but said this was in self defence. The judge also expressly considered this at §191-2 and said:

It may be asked why Ms Heard’s record or non-record for violence is of any relevance at all. It may be said that the libel which the Defendants are alleging is true is that Mr Depp was violent towards Ms Heard. Why then is it of any relevance to investigate whether Ms Heard was violent towards Mr Depp? Mr Sherborne offered two answers to this. First, it was integral to the defence of truth that the violence used by Mr Depp had been unlawful or unjustified. If, for instance, the only violence which Mr Depp had used had been in defence of himself it would hardly assist the Defendants in establishing the substantial truth of their allegation that he was a ‘wife-beater’.

Second, it was Mr Depp’s case that it was not he, but Ms Heard who had been the violent party. She denied this was so, but, if his account was correct, that would reflect adversely on her credibility.

The Claimant’s case was not simply that he had only used violence in defence of himself, but that the episodes of abuse hadn’t happened at all. Looking at the incidents individually, we see that

Incident 1: allegations that JD repeatedly slapped AH in the face and knocked her to the floor. The Claimant did not say that she had provoked it with violence; he denied that it had happened at all.
Incident 2: allegations that he hit her in the face, shook her and shoved her in to the wall. The Claimant did not say that she had provoked it with violence; he denied that it had happened at all.
Incident 3: allegations that he smashed glasses and ripped her dress. The Claimant did not say that she had provoked it with violence; he denied that it had happened at all.
Incident 4: allegations that he kicked her to the ground and threw a boot at her. The Claimant did not say that she had provoked it with violence; he denied that it had happened at all.

…. the rest continue in a similar vein. The incidents said to have been provoked by Ms Heard are Incidents 8, 9, 12 and 13 – four of the fourteen. For Depp to succeed, it was not enough for him to assert that she had once admitted a slap. He had to show that the Sun had not established that violence happened in any of the claims other than those said to be provoked by her, and also that her violence began the episodes rather than being in response to them.

In relation to each incident, the judge goes on to weigh up the evidence given by everyone involved and reach findings as to whether it did or did not happen. It is not the case that the judge did not accept that Ms Heard was ever aggressive – indeed she had accepted that in two of the incidents she had retaliated physically. In numerous of them there are what seemingly amounts to an admission by Depp in the form of an apology or text message following the event. It was the judge’s task to go through all of that evidence, hear what other witnesses had to say, and then reach a decision as to whether it was more likely than not that each incident had been proven by the Sun. Not every incident was found proved, but enough to prove the “substantial truth” of the article.

Much has been made on social media of a single line in the judgment: “It is not even of significant relevance to whether Ms Heard assaulted Mr Depp.” This line should be read more carefully than social media perhaps permits. It is a reference to whether the judge needed to make a finding as to who had left faeces on the bed. Depp alleged it was Ms Heard; Ms Heard denied it; it may have been one of the dogs. It is worth quoting the paragraph in full:

“Mr Depp’s belief that Ms Heard or one of her friends was responsible for leaving the faeces on the bed is relevant because (a) it led him to conclude that his marriage to Ms Heard could not continue and (b) it was the cause of part of the argument which subsequently took place on 21^st May 2016. In my view, whether Ms Heard or one of her friends was in fact responsible is not important. It is remote from the central issue, namely whether Mr Depp assaulted Ms Heard. It is not even of significant relevance to whether Ms Heard assaulted Mr Depp. For what it is worth, I consider that it is unlikely that Ms Heard or one of her friends was responsible. Mr Depp had left that night for his property in Sweetzer. As long as he was away, it was Ms Heard who was likely to suffer from the faeces on the bed, not him. It was, therefore, a singularly ineffective means for Ms Heard or one of her friends to ‘get back’ at Mr Depp. Other evidence in the case showed that Boo (one of the two dogs) had an incomplete mastery of her bowels after she had accidentally consumed some marijuana.” [emphasis added]

In other words, “it” (meaning a finding as to who had left the faeces on the bed) was not of relevance to whether either Mr Depp had assaulted Ms Heard or as to whether Ms Heard had assaulted him. The meaning of this is absolutely not, as some have been led to believe, that the judge thinks that any assault by Ms Heard on Mr Depp is insignificant or irrelevant. It just means that if the judge had made firm findings as to who left the faeces on the bed, it would not have helped him to come to a decision on whether either of them had assaulted the other.

The judgment is lengthy and detailed. Each allegation seems to have been carefully assessed and reasons given for the findings made. The decision details a lifestyle which in a less wealthy litigant would at best be described as “chaotic.” In many regards it is almost repetitively similar to every account of domestic abuse heard in court: questioning by his barrister as to why she ‘went back to him’ alongside characterisation of the victim as a gold-digger and / or unstable, lies said to have been told by each party many years ago excavated and aired as proof positive that the other is an irredeemable fantasist. The unusual factor is that the public is able to see the reasoning given for each finding: most abuse trials are criminal trials in which the reasons for the jury’s findings are never disclosed.

Depp has indicated that he will seek leave to appeal.