Edinburgh University, freedom of speech and the heckler’s veto

Edinburgh University has for a second time allowed protestors to prevent the screening of the documentary film “Adult Human Female.” It was initially to be screened in December 2022, but cancelled when demonstrators occupied the university buildings. The rescheduled showing was arranged for 26 April 2023, but prevented once more by a large group of protestors. 

Protestors blocked off the entrances and physically stopped anyone from getting inside. The event was once again cancelled.

The protestors of course regard this as a victory for the prevention of intolerance. A spokesman told the Times that 

“Their argument is that trans women are the problem and are men in disguise and that is a lie. It is tarring a whole community and demonising them. Free speech is fine for everybody but it does not extend to the intolerant and hateful.”

There is nothing in this quote to suggest that the spokesman had in fact watched the film. But what is more remarkable is the spokesman’s claim that free speech “does not extend to the intolerant or hateful.”  

As we have said before, the relevant provision is Article 10 of the European Convention on Human Rights, as given effect in the UK by the Human Rights Act 1998. Article 10 protects freedom of expression, but not unfettered freedom of expression – the old chestnut that there is no freedom to shout ‘fire’ in a crowded theatre. It is one of the most detailed Articles and reads as follows: 

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  1. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

In the first three paragraphs of his judgment in R (Miller) v College of Policing & CC Humberside [2020] EWHC 225 (Admin), Julian Knowles J summarised three famous citations on free speech: 

  1. In his unpublished introduction to Animal Farm (1945) George Orwell wrote: “If liberty means anything at all, it means the right to tell people what they do not want to hear.” 
  2. In R v Central Independent Television plc [1994] Fam 192, 202-203, Hoffmann LJ said that: “… a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.”
  3. Also much quoted are the words of Sedley LJ in Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375, [20]:
    “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having  … “

That of course does not mean that freedom of speech is unlimited. It may be limited where a legitimate aim is pursued, although as was said in R (Ngole) v University of Sheffield [2019] EWCA Civ 1127,

The existence of a broad legitimate aim is a mere threshold to the key decision in this case, as in almost all cases it must be. Such a legitimate aim must have limits. It cannot extend too far. In our view it cannot extend to preclude legitimate expression of views simply because many might disagree with those views: that would indeed legitimise what in the United States has been described as a “heckler’s veto”.  

This is particularly so when the speech in question, here the film Adult Human Female, is itself an expression of protected views. 

Proportionality is key to any decision to limit free speech. In Handyside v United Kingdom (1976) 1 EHRR 737 the European Court of Human Rights said at [49]:

“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, 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’. This means, amongst other things, that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.”

There are two issues here, in terms of freedom of expression (I am not considering here the law on academic freedom, but only human rights. For those wanting further reading around academic freedom, the law in England and Wales can be found here and Scottish law here.) 

The first is whether the film Adult Human Female really is as offensive as the protestors claim. That in my view is inconceivable – it discusses proposed changes to the law from the perspective of one of the affected groups, namely women. 

The second is that even if a sector of the population disagrees with it, feels personally affected or is offended by it, this intimidation is disproportionate and anti-democratic. A protest that does not prevent the event from taking place must be possible. 

It is noteworthy that one of the groups who are highlighted as anti-democratic in the film are UCU. A number of the academic interviewees express disbelief that a union for those whose lives are dedicated to the pursuit of knowledge should behave in such an anti-intellectual way. I do wonder whether UCU’s enthusiastic support for the protests in Edinburgh is to spare its own blushes should their students watch the film and find out how spineless their tutors are when faced with intellectual disagreement. 

Freedom of expression is valuable. If the protestors’ freedom of expression were similarly impaired by mob justice, they would be outraged. They should be careful what they wish for. 

Red tape or essential protection? Third party harassment revisited.

The Worker Protection (Amendment of Equality Act 2010) Bill currently proceeding through Parliament and predicted to become law in 2024, raises some subtle questions about the relationship between protection from harassment and freedom of speech. 

When the Equality Act 2010 was passed, it included provisions outlawing third party harassment and  providing a legal claim against an employer by an employee who suffered harassment by a third party such as a customer, client or visitor.

These provisions were criticised at the time as unduly complex, in particular, for the fact that they required the employee to have suffered two previous incidents of harassment at work. The provisions were rarely used. But rather than amend the law to something that actually worked well, the government threw out the baby with the bath water, and entirely repealed the provisions under section 65 of  the Enterprise and Regulatory Reform Act 2013 as part of its “Red Tape Challenge”.

There remained some scope to bring a claim for third-party harassment under section 26 of the  Equality Act on the basis that an employer’s failure to prevent harassment by a third party is itself harassment. But  

in Unite the Union v Nailard [2018] EWCA Civ 103 the Court of Appeal held that to succeed in a claim of this kind, the claimant must prove that the employer has a discriminatory motive for failing to take action.That will rarely be possible. As a result, employees were left relatively unprotected in this situation.

A few years after the Red Tape Challenge, the #MeToo movement brought workplace harassment into sharp focus, including harassment by clients and customers to workers . This included undercover reporting by the Financial Times of  a notorious charity fundraising event at the now closed Presidents Club in 2018 , where the hostesses were reportedly groped and sexually harassed by rich and powerful men.

In 2018, after a call for evidence, the EHRC published a report called “Turning the tables: Ending sexual harassment at work”. The report found that third-party harassment is a particular problem for people in customer-facing roles, with around a quarter of those reporting harassment saying that the perpetrators were third parties. They also found that third-party sexual harassment was dealt with poorly and was viewed by some employers as a ‘normal’ part of the job. 

It recommended amongst other steps that:

·      the UK Government should introduce a mandatory duty on employers to take reasonable steps to protect workers from harassment and victimisation in the workplace.

·      Breach of the mandatory duty should constitute an unlawful act for the purposes of the Equality Act 2006, which would be enforceable by the Commission. 

The Government announced it supported the recommendations, and  backed a Private Members’ bill. 

Under the new law, when it comes into force (likely to be in 2024),  

an employer will be liable if a third party harasses an employee in the course of his or her employment and the employer has failed to take all reasonable steps to prevent them from doing so. The provision is not limited to sexual harassment and so covers the other relevant protected characteristics as well. 

A new duty will also require an employer to take all reasonable steps to prevent sexual harassment of their employees in the course of their employment. Breach of the duty will be an unlawful act, enforceable by the Equality and Human Rights Commission. There will be a Code of Practice setting out what reasonable steps should be taken.

Although employees will not be able to bring standalone claims specifically for breach of the duty to take reasonable steps to prevent sexual harassment, if an employee is successful in a claim for sexual harassment and the employment tribunal rules that the employer is in breach of the duty, it will have the power to award an uplift in compensation not exceeding 25%. 

These are largely positive developments which should reinforce the obligations on employers to protect their employees and plug an important gap where employees are at risk of third party harassment. 

However concerns have been raised about the scope of the provisions in the context of free speech.

The Government has proposed an amendment to the Bill so that employers will not be liable for workplace harassment (other than sexual harassment) in circumstances where that harassment arises as a result of a ‘protected conversation’: one which involves the expression of opinion on a political, social, moral or religious matter, in which an individual is not a participant. In effect, this intends to exclude overheard conversations where a personal view is expressed. This amendment has been proposed with a view to addressing concerns about how the Bill, as previously drafted, might curtail the legitimate expression of free speech.

Despite this proposed amendment, the solicitor James Murray of Mishcon de Reya, a specialist in law related to Higher Education and academic freedom has raised concerns whether the change in law  will still negatively affect academic freedom on campus, with officials using the excuse of the third party liability to disallow controversial academic speakers on campus

Obviously, this Bill is not yet law, and there may be further amendments. But the lesson from the Red Tape Challenge is one that this Government (currently engaged in potential mass repeal of EU legislation via the Retained Law (Revocation and Reform) Bill 2022 (also proceeding currently through Parliament) would be wise to learn. 

Is this or any law red tape or essential protection? I welcome this long overdue protection from third party harassment but great care needed to ensure the right balance to protect free speech.

To Boldly Go – Why “going beyond the law” risks unlawful discrimination

Recently I have been seeing a common thread amongst equality activists. The idea of “going beyond the law”.

The implication is we can do more, be bolder and more generous to improve the lot of a particular minority. An  activist’s dream. 

It also suggests the law is outdated and we shouldn’t wait for Parliament to recognise what the law should be. And there is something in it: it was always open to good employers to refrain voluntarily from discriminating on grounds of sex, race, sexual orientation etc before the law demanded that of them.  

However, this may be a trap for the unwary.

Take the situation at Essex University culminating in the Reindorf Report and a subsequent open letter condemning it.

The Reindorf Report was commissioned by Essex University following complaints by two external invited speakers disinvited after complaints from trans activists due to their alleged gender critical beliefs. It is written by an independent specialist discrimination barrister. It sets out clearly (from para 140), the relevant law and regulatory framework concerning the conflict between trans activists and gender critical feminists. Whilst primarily about universities and academic freedom, it has useful transferable messages about conflict of rights, the potential for indirect sex discrimination, the threshold for determining unlawful harassment and serious concerns about the role of Stonewall.

A group of academics and students from the University and elsewhere promptly responded in the form of an Open Letter to the Vice Chancellor. Some are from the Law School and others are human rights academics. It is attached here: https://twitter.com/SVPhillimore/status/1395429598331129861/photo/1

It states “It is entirely appropriate for an academic institution to set an example to wider society by going above and beyond the baseline requirement for rights protection”

It seems an attractive idea. We can do better, go further, give greater rights. What is the harm?

What is missing from the letter is any recognition of the existence of, let alone balancing a conflict of rights. It is simply not mentioned.

The rights of the visiting speakers, let alone other people, especially women with gender critical beliefs at Essex University are wholly absent from the letter. It is as if they don’t exist. Given the context in which the Reindorf Report was written (including a reference to  a flyer circulated in the University bearing an image of a cartoon character pointing a gun and the words “SHUT THE F*** UP, TERF”) this is shocking.

 The letter approaches its subject from the exclusive perspective of one group of people with no recognition that the rights of any other group might be engaged. 

Yet in equality law, recognising and balancing conflicts of rights is bread and butter practice. There is plenty of caselaw from Ladele v Islington BC https://www.bailii.org/ew/cases/EWCA/Civ/2009/1357.html to Lee v Ashers Bakery Case https://www.supremecourt.uk/cases/uksc-2017-0020.html .

Even Prof Sharon Cowen, whose very pro trans views are well known, (in a paper she co-wrote with Sean Morris entitled “Should ‘Gender Critical’ Views about Trans People be Protected in the Workplace? Reconciling Conflicting Human Rights and Discrimination Claims under the Equality Act 2010 “ at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3849970), recognises the legal conflict of rights. In one of the few paragraphs I do agree with, they state “We conclude that the courts should maintain a flexible approach, while developing coherent principles, that are applied consistently, for balancing and reconciling conflicting rights. This is important in the current context in which there is an ongoing debate, particularly in the discrimination and human rights context, about the extent to which trans people’s rights are adequately protected and whether protecting such rights infringes the rights of others. “

Even in ECHR law, there is recognition that whilst you can go beyond the law it cannot be at the expense of others’ rights.

As barrister Emma Stuart King states “It goes back to the positive/negative obligations distinction. Under the EA, there is only an obligation to refrain from discriminatory conduct, the only exception being in the case of disability where there are positive obligations to take action to prevent discriminatory impact.

Under ECHR case law, the threshold for requiring positive action is always set higher than that for negative obligations. And this is on a state level- where those positive actions are required by individuals you not only have to very carefully and clearly set them out but this can only be done where the required measures don’t negatively affect the rights of others. There really is no precedent in law for the types of positive obligations that are called for.”

I have previously  set out my thoughts on how policy makers make an environment supportive of one group without inadvertently making it worse for another.

There is scope for positive action, for example at s158 and s159 Equality Act. But it has to be applied very appropriately and carefully as Cheshire Police learned found out to their cost when it was determined that their well meaning use of s159 to recruit more Black and Minority Ethnic Officers  to address long-standing underrepresentation was flawed and discriminated against a white man. 

So when you see the exhortation to “go beyond the law” as a suggestion when making policy, think carefully, for it is a minefield for the unwary. Law is often written as it is for good reason.

Transphobia, Feminism and the Liberal Democrats

By Audrey Ludwig, Solicitor and Tim Pitt-Payne QC

On Saturday 19th September, the Liberal Democrats published a statement setting out their understanding of what constitutes transphobia.  It is a remarkable document, deserving careful attention.

Debates about whether a particular view, person, or body is transphobic often misfire, because the participants are operating from unstated but differing definitions of transphobia; they talk past one another and make no progress.  In principle, a discussion about the meaning of transphobia could be useful and helpful. 

But the Liberal Democrat document is not intended merely as a contribution to wider social debate.  The online statement announcing its adoption made clear that it would be used to support the Party’s disciplinary processes.  In other words, individuals who are guilty of transphobic behaviour – as defined in the document – could be suspended from the party or expelled. 

The document is in three parts: a brief definition of transphobia; further discussion of that definition; and an appendix of examples.

The brief definition is this:

‘Transphobia’ is the fear or dislike of someone based on the fact they are trans. Transphobia, whether through words or action, may be targeted at people who are, or who are perceived to be, trans or trans allies.

In the subsequent discussion of this definition, we are told that the term “trans” is “an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth.” There is an express statement that people are not required to have undergone any medical or social transition to be considered trans, and a cross-reference to the definition of “trans” in Stonewall’s glossary.

Four non-exhaustive examples of transphobic behaviour are then given, some of which go well beyond what would be regarded as either unlawful harassment on grounds of gender reassignment or an objective threshold standard for hate crime.  The examples are:

* attempting directly or through advocacy to remove trans people’s rights;

* misrepresenting trans people;

* abuse of trans people; and

*  systematically excluding trans people from discussions about issues that directly affect them.

These are more fully explained in the appendix.

As to the first example, there is no further explanation of what type of rights are being referred to.  No doubt advocating changes in the law that were regarded as weakening the position of trans people – for instance, arguing that the conditions for a GRC should be more restrictive – would come under this heading.  But does this example go further?  Given the breadth of the document generally (see further below), it is likely that the term “rights” would not be understood solely in legal terms, but would also cover anything that trans people are currently able to do as a matter of practice.  For instance, arguing for the exclusion of trans women from women’s rugby would probably be viewed as “attempting to remove trans people’s rights”. 

The document goes on to distinguish between different levels of blame.  For genuine “errors and misunderstandings”, an apology or retraction will usually suffice.  However, repeat offenders should be dealt with more severely: “this is especially true if they have been challenged by others, and they have been pointed to resources to help them learn about trans rights and transphobia.”  In other words, re-education and a chance to repent are to be the first resort,  with the possibility of disciplinary action and expulsion to follow for those who persist.

The Appendix then sets out a number of further examples of transphobic behaviour, again making clear that they are not exhaustive. 

Under the heading “denying trans people’s gender identity or refusing to accept it”, there are references to deadnaming, misgendering, and mockery, followed by this passage:

Using phrases or language to describe trans people which are designed to suggest that trans people are a separate category of person from the gender they identify as or that their gender identity is not valid. Current examples include referring to a trans woman or non-binary person as a “biological man” or a trans man or non-binary person as a “biological woman”, which eradicates the trans person’s gender identity in favour of their biology at birth.

The first sentence is clearly intended to enforce the orthodoxy that trans women are women and trans men are men.  Any deviation from this – for instance, “trans women are not literally women, but (with limitations) ought to be treated as if they were” – would doubtless be seen as treating trans women as a separate category from the gender with which they identify. Taken at its highest, it could be said that this definition treats both the Equality Act and Gender Recognition Act as “transphobic”, since both contain provisions identifying circumstances where trans people are treated as a separate category.

The second sentence is even more striking.  In some contexts, it requires the denial of simple biological fact.  This is the case, even if you believe that it is possible for a human being to change their biological sex – given that very many trans people will have undergone no medical transition whatsoever, as the document itself expressly recognises.  To say that a person, or a group of people, identify as female but are biologically male is not only a factual statement, it is in some contexts a highly relevant statement: for instance, when considering how they should be housed within the prison estate, or whether they can fairly compete in sport against natal women.  Of course there are contexts in which to refer to biological sex would be hateful:  just as, when adoptive parents proudly describe their children’s achievements, it would be hateful to respond, “But you’re not their biological parents.”  But in some contexts – for instance, assessing the risk of inherited health conditions – biological parenthood is relevant:  and likewise, biological sex.

Given the way in which this paragraph is drafted, it is hard to see how there could be any meaningful advocacy of gender critical views within the Liberal Democrats.  In particular, it is hard to see how one could either oppose gender self-ID, or advocate for maintaining  sex-based rights or single sex spaces and facilities, or for keeping the provisions in the Equality Act that make such things possible.  The document therefore effectively requires certain policy positions to be supported, on pain of a finding of transphobia and potential expulsion.  Dissent is to be rooted out, not by reasoned discussion and debate, but by the exercise of power.  It is authoritarian, and illiberal, for a party to close down internal debate in this way on issues of live political controversy.   

Under the heading “misrepresenting and excluding trans people”, one finds this example:

Making mendacious, dehumanising, demonising, or stereotypical allegations about trans people or their cisgender allies. This includes spreading the idea of a “trans conspiracy” which asserts undue influence over media or government or claiming that cisgender allies support trans rights initiatives out of fear or bribery rather than a genuine belief that trans rights are human rights.

There is a sad irony about the final sentence.  The very existence of this document will foster the making of such claims.  When Liberal Democrats advocate for trans rights, they can be expect to be met with the retort, “you’re only saying that because your party says that you must”. 

In all of this discussion, there is a glaring omission.  At no point is there any recognition of any potential conflict between the rights and interests of trans people and of natal women. Dealing with competing rights is a familiar aspect of human and equality law: for instance, a policy benefiting one protected class may indirectly discriminate against another, requiring a balance to be struck.  The document allows no space for feminist advocacy that recognises the need for such a balance.  There is no acknowledgment whatsoever that campaigning against self-ID, or for sex-based rights, can be motivated by something other than prejudice or bigotry.  The implied message of the document, therefore, is that when the interests of women come into conflict with those of other groups, then it is for women to give way without question or complaint.  Not only is this an illiberal message:  in its practical effect, it is a strikingly misogynist one.