Why a court ruling on free speech should re-set gender debate - Murdo Fraser

Campaigners for free speech have welcomed the decision taken by the High Court in England last week in the case of the lawyer Maya Forstater.

JK Rowling has faced “cancelling” for stating their opinions

The 47-year-old had lost her job after stating her belief that people could not change their biological sex, and originally failed in her case against her employers at an employment tribunal. However, the High Court has now ruled that her “gender-critical beliefs” fell under the Equalities Act, and were a genuine and important philosophical position that deserved to be protected.

The decision in the Forstater case has been recognised on all sides as significant. The right of individuals to free speech, even in areas that are hotly contested, has been upheld in law. The appeal panel recognised that Ms Forstater’s views would be offensive to some, but they were nevertheless an opinion that she was entitled to hold, and for that reason she could not be deprived of employment for maintaining them.

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It was an important ruling for champions of free speech, and a serious blow to those who have maintained the extremist position that there is “no debate” around the gender issue. In a time when we have seen feminists such as Germaine Greer and JK Rowling face “cancelling” for stating their opinions, this is a very welcome development.

The court was clear that the limits on free speech are very narrow: only beliefs akin to Nazism or espousing totalitarianism are not protected. To quote from the judgement directly: ‘a person is free in a democratic society to hold any belief they wish, subject only to “some modest, objective minimum requirements”’. When hate crime legislation is now on the statute book, this clear assertion of the limits of the law is timely.

The High Court judgment is considered, detailed, and balanced, and repays close study. Whilst upholding the right of free speech, the Court was clear that trans persons should be protected against discrimination and harassment, and that employers and service providers are obliged to provide a safe environment for them. It also made clear that those with gender-critical beliefs cannot “mis-gender” trans persons with impunity.

All these conclusions are welcome. In a liberal and democratic society, free speech is important, but so is common courtesy. To deliberately “mis-gender” an individual, or use pronouns with which they are uncomfortable, is simply bad manners. Just as it would be ignorant and discourteous to address a woman as either “Miss” or “Mrs” against her wishes, so the use of incorrect pronouns for individuals should be equally unacceptable. However, it would be absurd to extend from that to conclude that “mis-gendering” should amount to a criminal offence.

What does this judgement mean for the toxic, polarised debate that exists on the issue of gender? It might be hoped that this will bring a degree of reason and reasonableness to what has been, until now, a discussion so heated that few in public life have been prepared to express an opinion on the matter for fear of the reaction that it might provoke. I know of politicians in all parties who refuse to comment publicly on this area, so concerned are they at the backlash that might follow.

There is, however, far more common ground in this debate than one might imagine from looking at social media. Not all those who advocate for trans rights support a move to self-identification without any third-party tests. Not all those who seek to defend women’s rights, and women-only safe spaces, are transphobes. And not all trans activists hate women.

In the world of Twitter, where everything has to be reduced to 280 characters or fewer, there is little room for nuance or reasoned debate. In that sphere, it can be hard to convey the reality that more than one thing can be true at the same time.

It is possible to believe that the process of acquiring a gender recognition certificate is too expensive and too bureaucratic, without concluding that that should lead to an unconditional acceptance of self-ID of gender. It is possible to believe both that women-only spaces, such as prisons and toilets, should be protected, AND that the rights of trans people should be respected. It is possible to believe that there needs to be improved access to medical services for children reporting with gender dysphoria, AND believe that prescribing puberty blockers to those who may not be fully aware of their long-term consequences is unwise.

In the last Scottish Parliament, the SNP Government stalled on its plans for a reform of the Gender Recognition Act. The UK Government, in the form of the Equalities Minister Liz Truss, has largely dropped its own plans for change south of the Border, although it has substantially reduced the cost of applying for a gender recognition certificate.

It now appears likely that reforms will push ahead at Holyrood in the new Parliament, although exactly what form these will take remains to be seen. Against this backdrop, the judgement in the Maya Forstater case provides a helpful template for the manner in which this debate should be conducted.

It may be that we will never get to a point when all sides in this most heated of discussions can agree on a way forward. But at least we can now be in a place where individuals are not afraid to express their opinions, and cannot be punished, or silenced by their employers, for speaking out. In that respect, the world is a better place now than it was this time last week.

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