Readers will recall the recent case (September 2019) of the British doctor, David Mackereth, whose Christian beliefs were judged unworthy of legal protection. The judge ruled:
All three heads, belief in Genesis 1:27, lack of belief in transgenderism and conscientious objection to transgenderism, in our judgment are incompatible with human dignity and conflict with the fundamental rights of others.
In this article I examine two other cases in England, one of which mirrors the Mackereth case, while the other is a partial victory for free speech. Both deal with the right to criticize transgenderism on Twitter.
A leap backward: Maya Forstater
The first case is that of Maya Forstater, who was dismissed from her job as a visiting fellow at the Centre for Global Development, an anti-poverty think-tank that has offices in London and Washington. Ms. Forstater’s offence was that “she expressed ‘gender critical’ opinions, in outline, that sex is immutable, whatever a person’s stated identity or gender expression.”1 Ms. Forstater is not a Christian, as far as I can tell, but she argues that her belief in the immutability of gender is a “philosophical belief protected by the Equality Act 2010.”
What, then, are her philosophical beliefs and how did she express them on Twitter? The following are examples of tweets deemed to be offensive by some:
Radically expanding the legal definition of ‘women’ so that it can include both males and females makes it a meaningless concept.
I think that male people are not women. I don’t think being a woman/female is a matter of identity or womanly feelings. It is biology.
[In response to a complaint by Gregor Murray, a self-identified “non binary person”]. On Twitter I referred to Murray by the pronoun “he.” This was not purposeful or meant to cause harm. I had simply forgotten that this man demands to be referred to by the plural pronouns “they” and “them.” In reality Murray is a man. It is Murray’s right to believe that Murray is not a man, but Murray cannot compel others to believe this. I reserve the right to use the pronouns “he” and “him” to refer to male people. While I may choose to use alternative pronouns as a courtesy, no one has the right to compel others to make statements they do not believe. I think it is important that people are able to refer to the sex of other people accurately and without hesitation, shame or censure.
Girls grow up to be women. Boys grow up to be men. No change of clothes or hairstyle, no plastic surgery, no accident or illness, no course of hormones, no force of will or social conditioning, no declaration can turn a female person into a male, or a male person into a female.
These statements, and many other similar statements (which are statements of fact, about which there should be no controversy whatsoever), Ms. Forstater argues are expressions of her philosophical belief and, therefore, should be protected under the British Equality Act (2010). Employment judge Mr. J. Tayler writes, “To qualify as a ‘philosophical belief’ under section 10 EqA, the belief must satisfy the five criteria in Grainger plc. v. Nicholson ”:
(i) The belief must be genuinely held.
(ii) It must be a belief and not an opinion or viewpoint based on the present state of information available.
(iii) It must be a belief as to a weighty and substantial aspect of human life and behavior.
(iv) It must attain a certain level of cogency, seriousness, cohesion, and importance.
(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.2
The Grainger plc v. Nicholson case is interesting because the philosophical belief in question was belief about climate change! In that landmark case the Claimant, Mr. Nicholson, argued:
I have a strongly held philosophical belief about climate change and the environment. I believe we must urgently cut carbon emissions to avoid catastrophic climate change. It is not merely an opinion but a philosophical belief which affects how I live my life.
And the Honourable Mr. Justice Burton ruled:
A belief in man-made climate change, and the alleged resulting moral imperatives, is capable, if genuinely held, of being a philosophical belief for the purpose of the 2003 Religion and Belief Regulations.
So, according to legal precedent in the UK, belief in “man-made climate change” is a philosophical belief protected by law, but denial of transgenderism (the Mackereth case) is incompatible with human dignity and, therefore, not protected by law. Therefore, in the UK you can lose your employment for rejecting transgenderism, and especially for speaking/writing against it (even if it is only on your private Twitter account) but, if you are an ardent environmentalist, your employment is safe.
Given the legal precedent of the Mackereth case, the ruling on the Forstater case is unsurprising, if disturbing. Judge Tayler writes:
If a person has transitioned from male to female and has a Gender Recognition Certificate, that person is legally a woman. That is not something that the Claimant is entitled to ignore.
The Claimant’s position is that even if a trans woman has a Gender Recognition Certificate, she cannot honestly describe herself as a woman. That belief is not worthy of respect in a democratic society. It is incompatible with the human rights of others that have been identified and defined by the ECHR and put into effect through the Gender Recognition Act.
I consider requiring the Claimant to refer to a trans woman [a man—MMcG] as a woman is justified to avoid harassment of that person.
[The Claimant] positively believes that [transwomen] are men; and will say so whenever she wishes. Put either as a belief or lack of belief, the view held by the Claimant fails the Grainger criteria and so she does not have the protected characteristic of philosophical belief.
So, again, the philosophical belief that gender is biologically determined, and neither fluid nor a social construct, does not pass the Grainger test: it is not worthy of respect in a democratic society, it is incompatible with human dignity, and it conflicts with the fundamental rights of others.
Even leftist feminist and author of the Harry Potter series of books, J. K. Rowling, tweeted her support for Ms. Forstater:
Call yourself whatever you like. Sleep with any consenting adult who’ll have you. Live your best life in peace and security. But force women out of their jobs for stating that sex is real? #IStandWithMaya #ThisIsNotADrill.3
Rowling attracted the ire of transgender activists and the unflattering epithet TERF (“trans-exclusion- ary radical feminist”) for her “heretical” tweet. In our modern age, heresy is to speak or write against liberal orthodoxy, especially abortion and LGBTQ+ rights. Hollywood actor Mark Hamill liked Rowling’s tweet, but later apologized: “I liked and I didn’t realize it had any transphobic connotation,” he wrote contritely to appease his critics.4 Hamill did not realize that by “sex is real” Rowling had meant gender is real, nor did he know the significance of #IStandWithMaya.
Unlike Hamill, however, Rowling did not apologize to her critics, which is commendable.
A step forward: Harry Miller
Justice Julian Knowles decided a case in February 2020 in which a “Mrs. B” (so identified in the court documents) complained to the police about the tweets of Mr. Harry Miller, a former police officer from Lincolnshire, England. “Mrs. B” is actually a man, identifying as a “post-operative transgender lady.” In a complaint lodged with Humberside Police, Mrs. B writes: “I was. alarmed and appalled at the brazen transphobic comments [of Mr. Miller].”5 It is true that many of Mr. Miller’s tweets were crude (so I will refrain from citing any of them), but should they be viewed as criminal or potentially criminal? Should they be a police matter? Justice Knowles writes:
The Claimant’s tweets were not targeted at Mrs. B, nor even the transgender community. They were primarily aimed at his 900-odd Twitter followers many of whom, as I said earlier, can be assumed to be of a like mind. Mrs. B chose to read them. Until she got involved, there is no evidence anyone had paid any attention to the Claimant’s tweets. No-one had been bothered by them. No-one had responded to them. No-one had complained about them. Some of them were so opaque I doubt many people would have understood them even if they had read them.
Despite this, Humberside Police recorded Mrs. B’s complaint as a “hate incident pursuant to HCOG (Hate Crime Operational Guidance),” created a document called “Crime Report Print” (without inter viewing Mrs. B, without any critical scrutiny of the tweets, and, crucially, without any evidence of a “crime”), and referred to Mrs. B as the “victim” and the Claimant (Harry Miller) as the “suspect,” something that Justice Knowles found “striking.”
Once the complaint was recorded in the system, Police Constable Mansoor Gul began his investigation. He writes, “I did not identify any criminal offence but was satisfied that there was a perception by the victim that the tweets were motivated by a hostility or prejudice against transgender people.” Officer Gul attempted to visit Mr. Miller at his workplace, albeit not in uniform, leaving “his card with a director of the company with the request that the Claimant call him.” According to Mr. Miller, when he called PC Gul, the conversation went something like this, although the officer disputes certain aspects of the account (especially the “I need to check your thinking” remark):
I informed PC Gul that I was not the author of the verse [an offensive poem that Mr. Miller had retweeted—MMcG] and that it was simply expressing in verse the sense of imbalance of power between the sexes in the context of transgenderism…. He said by liking and retweeting it on Twitter, I was promoting hate.
I again asked for, and received, confirmation that neither the verse, nor any of the other alleged 30 tweets, were criminal. I then asked PC Gul why he was wasting my time.
PC Gul said: “I need to check your thinking.”
I replied: “So, let me get this straight, I’ve committed no crime. You’re a police officer. And you need to check my thinking?”
PC Gul answered: “Yes.”
I said, “Have you any idea what that makes you? ‘Nineteen Eighty-Four’ is a dystopian novel, not a police training manual.”
PC Gul also warned Mr. Miller that
on the basis of the third party complaint, a Hate Incident Record would be generated, regardless of there being no crime, nor any evidence of hate. He warned me that continuing to tweet “gender critical content” could count as an escalation from non crime to crime, thus prompting further police intervention.
Justice Knowles is very critical of the actions of Humberside Police:
The police interfered with the Claimant’s right to freedom of expression. PC Gul’s actions in going to the Claimant’s place of work and his misstatement of the
facts, his warning to the Claimant, coupled with the subsequent warnings by the police to the Claimant that he would be at risk of criminal prosecution if he continued to tweet (the term “escalation” was never defined or explained) all lead me to conclude that the police did interfere with his Article 10(1) rights, even though he was not made subject to any formal sanction.
There was not a shred of evidence that the Claimant was at risk of committing a criminal offence. The effect of the police turning up at his place of work because of his political opinions must not be underestimated. To do so would be to undervalue a cardinal democratic freedom. In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.
There was no risk of him committing an offence and Mrs. B’s emotional response did not justify the police acting as they did towards the Claimant. What they did effectively granted her a “heckler’s veto.”
Justice Knowles quotes several writers, including George Orwell and John Stuart Mill on the importance of freedom of speech in a democratic society. It is encouraging to find one judge in the British judiciary who still upholds fundamental freedoms: “If liberty means anything at all, it means the right to tell people what they do not want to hear” (George Orwell, unpublished introduction to Animal Farm, 1945).
1 “The Employment Tribunal: Claimant Maya Forstater vs. Respondent Center of Global Development Europe,” https://assets.publishing.service.gov.uk/media/5e15e7f8e5274a06b555b8b0/Maya_Forstater__vs_CGD_Europe__Centre_for_Global_Development_and_Masood_Ahmed_-_Judgment.pdf.
2 Employment Appeal Tribunal: Grainger plc. vs. Mr. T. Nicholson, http://www.bailii.org/uk/cases/UKEAT/2009/0219_09_0311.html.
3 “JK Rowling in Row over Court Ruling on Transgender Issues,” The Guardian (Dec. 19, 2019), https://www.theguardian.com/books/2019/dec/19/jk-rowling-trans-row-court-ruling-twitter-maya-forstater.
4 “Mark Hamill Apologises for Liking JK Rowling Tweet with ‘Transphobic Connotation,’” The Independent (Dec. 20, 2019). https://www.independent.co.uk/life-style/jk-rowling-transpho-bic-tweet-mark-hamill-maya-fortstater-terf-a9254446.html.
5 Judgment between the Queen on the Application of Harry Miller and the College of Policing and the Chief Constable of Humberside, https://www.judiciary.uk/wp-content/uploads/2020/02/miller-v-college-of-police-judgment.pdf.