Abstract
CREDIT: (self portrait) Phoenix Andrews
That, for me, is the nub of the argument about whether she should have been allowed to keep her job or not. In the UK, under Section 4 of the Public Order Act 1986, language is criminalised if someone “(a) uses towards another person threatening, abusive or insulting words or behaviour, or (b) distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting” if the target believes that language is intended to cause or provoke unlawful violence.
In relation to hate crime, the Crown Prosecution Service says: “There is no legal definition of hostility so we use the everyday understanding of the word, which includes ill-will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike.”
As a trans person, I find Forstater’s words to be abusive and insulting and at times threatening – at least in the abstract – towards large parts of the trans community in general. They are hostile, unfriendly and prejudiced and demonstrate antagonism, ill-will and dislike.
The trickier part is whether someone who sees or hears what she has to say believes it will cause or provoke unlawful violence. Indeed, the first employment tribunal judge ruled that what Forstater tweeted was not hate speech exactly but was “incompatible with human dignity and fundamental rights of others” and that her words did “not have the protected characteristic of philosophical belief” under the the Equality Act 2010.
As with many examples of offensive speech, people are going to argue about whether you can say what she said. However, it does not matter what most people think about what she said. It matters what most trans people think, because we are the subject of her speech, and it matters that her words are part of a larger media and societal culture that is hostile to trans people.
Forstater’s words do not stand in isolation. She is part of a network of “gender-critical” activists who collectively have made the UK a more difficult place in which to be openly trans.
I have experienced both physical and verbal violence on the street and in public toilets, and it has not always been from men. Violence from men is always the greatest threat to both cis and trans people. But incidences of bathroom policing and trans people being asked to leave toilets in public places or having their presence questioned have nearly always come from women.
The activism in which Forstater engages has made people who do not know her name or mine more wary of trans people. People understand how someone’s words and actions contribute to wider hostility in the cases of other protected characteristics, such as race, faith, sex (not the transphobic dog whistle of “sex-based rights”) or disability. They seem rather keener to argue the point when it comes to transphobia. They don’t think their friends and allies can possibly be doing any harm to trans people just by saying things.
Forstater’s speech is hate speech because of its contributions to the prevailing culture. The manifestations of her beliefs in speech and actions were also detrimental to the work environment at her former place of employment. Constantly voicing offensive views at work and on social media harmed her employer’s reputation, and her co-workers, both trans and allies, had to work in an environment where they were not valued or treated with respect by Forstater. This manifestation continues to be harmful as she fights her cases and lawyers, journalists and commentators loudly defend her.
A protester at the start of Trans Pride in September 2020, Hyde Park, London.
CREDIT: Jessica Girvan / Alamy Stock Photo
I have worked with people whose views I found offensive. Had they shared them in front of me or used their social media presence to attack minorities, I would have raised it with my employer, and I would expect any reasonable person to do so.
Index chief executive Ruth Smeeth’s piece in The Times wants us to accept that “gender-critical” (anti-trans) views are “not the equivalent of race hate speech” and these are the grounds on which Index chose to intervene to protect Forstater’s free speech. This pits one protected characteristic, that of race, against another, that of gender reassignment.
Many people think it is not as bad to say things that dehumanise trans people or make them feel miserable at work as it is to do the same for those whose skin is not white. The Equality Act 2010 makes clear that this is manifestly untrue. There is no hierarchy of protected characteristics. By accepting that race, or any other kind of, hate speech exists, Smeeth has accepted that her definition of defensible free speech has red lines.
Most of us have red lines. Few people are true free speech absolutists, other than perhaps Noam Chomsky, who will happily sign letters of support for genocide defenders as well as for oppressed minorities, which at least is consistent. Gerrymandering those red lines to carve out exceptions for views you or people you respect happen to hold is not, however, a consistent defence of free speech. People seem more than happy to do this with anti-trans views. They’re not just defending women and girls or just criticising ideology any more than anti-Semites are just making legitimate criticisms of Israel.
In a decent society, people committed to equality and inclusion should respect the characteristics and protections set out in the Equality Act and not seek to undermine ones that challenge their world view. This brings me to the power relations that are at the heart of this “debate”. I have put quote marks around that word because anti-trans activists constantly ask for a debate about trans rights, and they characterise the dominant trans position as No Debate. Prominent gender-critical professor Kathleen Stock promotes her new book using the hashtag “#YesItsADebate”.
Are other protected characteristics a debate? Do we need to pit black women against white supremacists every week to check that black lives do, in fact, matter? Some broadcasters would argue that we should, but that’s disingenuous nonsense. That is why we do not want to debate with people whose idea of debate is to crush a minority. It does not produce consensus: it wants trans people to admit defeat and not be allowed to use public toilets.
When Freeze Peach Live, a YouTube channel debating free speech in higher education and academic freedom, invited Stock to explain how she was silenced, she ignored the requests. Her views have been published all over the press with little to no dissent and her book has been reviewed by sympathetic journalists who espouse their own discomfort with what they call “gender ideology”.
Gender-critical commentators, feminists and others (come on, now – Rod Liddle and Douglas Murray are not feminists) have created a moral panic about transgender lives and thrust us into a culture war while arguing that theirs is the grassroots position. Hundreds of thousands of pounds are raised every year in the UK by anti-trans campaigns hoping to crush us in the courts, and those campaigners get lavish support in the press as if they are plucky little grassroots efforts and as if the likes of Christian Concern and ADF do not have links to most of the cases.
LGB Alliance co-founder Ann Sinnott, a heterosexual woman, recently spent about £100,000 arguing that the UK’s Equality and Human Rights Commission (EHRC) guidance on the Equality Act was wrong on trans inclusion. She lost the right to a judicial review, but she had a lot of support – including from Forstater.
There is no regular trans columnist in any mainstream newspaper or political magazine but there are plenty on the other side. Janice Turner writes dismissively about trans people every other week in The Times. Sonia Sodha writes leaders for The Observer and long Twitter threads about us. James Kirkup wrote anti-trans pieces for The Spectator more than 50 times in two years, plus multiple articles on the same topic for other publications. The think-tanks most popular with the government, Civitas and Policy Exchange, platform prominent people who hold anti-trans views.
There is only one regular trans ally columnist, cisgender man Owen Jones. There are no trans politicians in parliament. There are few trans councillors or university professors. Trans television presenters? No. All the money and power is on the gender-critical side. Even the EHRC’s lawyer in Forstater’s case, Karon Monaghan QC, has said she holds gender-critical views.
This “debate”, as a result, has been defined by the gender-critical lobby, many of whom entered it as a result of the 2018 consultation on reforming the Gender Recognition Act, in relation to gender recognition certificates (GRCs). All a GRC does is change a person’s legal sex and allow them to obtain a new birth certificate in the correct gender and to marry in the correct gender (so as not to have to suffer the indignity of being wrongly called a “husband” or “wife” in a ceremony that is meant to be joyous, and on subsequent paperwork).
Nobody can ever demand to see a GRC and you do not need one to change your name or gender on your passport or driving licence. It used to be expensive to obtain a GRC; the direct cost has now dropped considerably (although not that of collecting all the evidence), but it remains time-consuming and bureaucratic.
The proposed change was that instead of collecting years of evidence and paying for medical reports that were then assessed by a panel they never met, a trans person could instead sign a statutory declaration of their gender and get a GRC. This is known as self-identification. The gender-critical turned this into a moral panic about “self-ID”, meaning men pretending to be women and getting into women-only spaces that they couldn’t enter before. GRCs, trans people in sport and puberty blockers for trans and questioning children are now the main battlegrounds for gender-critical activists.
Most trans people never bothered with GRCs due to the cost and hassle but also because they did not need them to live their lives. The Equality Act protects trans people without a requirement for medical treatment or a GRC, and changing most identity documents does not require them, either.
The issues trans campaigners are most exercised by are not GRCs, sport or puberty blockers. They are access to healthcare (which is currently near impossible for those who cannot afford to go privately), housing, protection from violence and dignity at work. Our time is wasted fighting to protect the rights we already have.
There are two dominant liberal views that need to be challenged. The first is that debate is intrinsically valuable and desirable. The second is that free speech of the kind espoused by Forstater should be protected. Both these positions come from a Cold War liberal tradition where meritocracy is real, there are Reds under the bed, and debating societies produce more than insufferable thought experimenters in denial of structural oppressions.
This perhaps made sense in the days of Francis Fukuyama, when people believed that the end of history was real and all that developing countries needed to do was become liberal democracies with free and fair elections. However, that consensus has crumbled and citizens around the world have voted for populist leaders and campaigns that have horrified liberals. Debates that treat real lives as abstract issues have not helped at all. As for free speech, the liberals fighting for speech that is harmful to minorities do not experience its effects. I have heard some GPs refuse to refer trans people to gender clinics or prescribe medication recommended by endocrinologists under shared care agreements because, by their own admission, they are frightened of the Daily Mail and The Daily Telegraph. I have been lucky in the past that managers have understood the equality laws Forstater’s demands challenge. But if she wins, who can I turn to when I am bullied by transphobic people at work?
Gender-critical activists give evidence in parliament and openly seek to take down charities such as Stonewall. Their words are cited in court cases in the UK and further afield. Speech is always more than just words. Fortater’s win sets a precedent. It is a precedent that will harm trans people such as me.