How a loophole in UK law helps out anti-trans activists (by Sam Fowles)
I have put this article by Sam Fowles here because It was mysteriously deleted 2 days after its publication. We suspect JK Rowling’s lawyers made it disappear. I have tried to contact Sam Fowles but to no avail.
The Equality Act is being used to attack trans people while protecting those that do so
Across Europe, governments and courts are rolling back trans rights. In the UK trans people are facing a more subtle but no less substantial threat: our law protects anti-trans or ”gender-critical” (“GC”) activists when they attack trans people but fails to offer equivalent protection to trans people and their allies.
In continental Europe, Hungary and Bulgaria have both banned people from changing their legal sex. Hungary’s law was struck down by the European Court of Human Rights, Bulgaria’s is yet to be tried. Romania refuses to recognise gender recognition certificates issued in other states. In Spain, the Madrid region has legalised discrimination against trans people.
Russia, Hungary, and Romania are all considering (or have already passed) laws which prohibit even advocating for trans rights. Romania’s first attempt was struck down by its constitutional court, but a new version may be in the offing.
The UK may be following that trend. The driving force is not (yet) a far right or authoritarian government but, rather, a statute intended to protect marginalised communities: The Equality Act 2010. It is supposed to protect marginalised and historically disadvantaged communities. As Milton Friedman put it, however, “the results of a given policy do not depend on the intentions of its creators.”
The Equality Act prohibits discrimination or harassment based on (among other things) religion or belief. In 2021 the Employment Appeal Tribunal ruled that Maya Forstater’s gender-critical activism was a protected belief. Forstater was followed by Allison Bailey, Rachel Meade, Denise Fahmy, Jo Phoenix. These highlight a loophole in the law which allows GC activists to publicly attack trans people while insulating them from criticism or professional consequences in response. The same loophole leaves trans-people without equivalent protection.
This isn’t the fault of the Tribunal. Judges can only apply the law. In all of the above cases, the employers made errors. The result would probably have been the same even without the more extreme impacts of the law. The fault lies with the politicians, who have chosen to demonise trans people rather than grapple with difficult issues. GC activists like to claim they are oppressed by the “woke minority”. But attacking trans people is not so mainstream it has become one of the Prime Minister’s go-to talking points.
First, equalities law presumes people participate in public debate on equal footing. For trans people, however, the consequences of the debate are existential. The essence of gender-critical belief is that sex is immutable. GCs campaign to have their views enshrined in policy and law. Just as in debates between antisemites and Jews, global majority people and racists, Muslims and Islamophobes, for trans people the debate isn’t academic or political. Their very existence is at stake.
GC activists claim that women’s safety is on the line. Such claims are often based on anecdotes or questionable research. In fact, trans people are statistically less likely to commit serious offences than cisgender or cis people, whose gender now is the same as they had at birth. Trans people make up around 0.5% of the population but just 0.2% (230 out of around 95 500) of the prisoners.
Trans people are at least twice as likely to be the victims of violent crime. Up to 73% have experienced harassment and violence for being trans. Hate crime against trans people is now at record levels. It has increased by 186% in correlation with the increase in profile and intensity of GC campaigns since 2017. Brianna Ghey’s murder, motivated in part by transphobia, is just the tip of the iceberg.
Second, the law permits GC activists to use intemperate (arguably degrading) language to attack trans people but appears to prohibit criticism in response. Bailey accused Stonewall of hiring someone: “who ran workshops with the sole aim of coaching heterosexual men who identify as lesbians on how they can coerce young lesbians into having sex with them.”
Meade shared a post, commenting: “Boys that identify as girls go to Girl Guides. Girls that identify as boys go to Boy Scouts. Men that identify as paedophiles go to either.”
She indicated support for the comedy writer turned anti-trans activist Graham Linehan, whose public statements include “almost every central trans figure is a nonce.” And “Baby pink and baby blue are paedophilic colours, put in the trans flag by the panty sniffing pervert who designed it. “
Phoenix’s GC Research Network lists publications which insinuate trans people are denying “reality”. It’s difficult to believe this sort of language would be acceptable if it were targeted at other communities such as Jews or cis women.
Phoenix was compared to a racist uncle by one colleague. People questioned whether Meade could do her job (as a social worker) properly if she came across a trans person in the course of her work. Simon Mellor, of the Arts Council, described the LGB Alliance (which has compared being trans to bestiality) as “having a history of anti-trans activity”.
The intricacies of each case are different. When taken as a whole, however, the law appears to give special privilege to GCs. The Tribunal, for example, found that the OU should have done more to suppress criticism of Phoenix. But tribunals have also found that institutions cannot suppress GC criticism of trans people.
Third, while the law protects GCs from suffering professional consequences for their activism, there does not appear to be equivalent protection for trans people, or acknowledgement of the real violence against them to which GCs contribute. Forstater criticised an Endometriosis charity for appointing Steph Richards, a trans-woman, as its CEO. Linehan was part of online attacks on Rape Crisis Scotland’s trans manager. The level of online hate and threats forced the centre into lockdown. Katherine Stock, a trustee of the LGB Alliance (of which Bailey is a founder) has called for the public outing of trans children. None of these attracted legal censure.
GCs have a right to free speech, but so do their critics. More importantly, trans people have a right to existence and personhood. Balancing competing rights is never easy. But while GCs are fighting to have their preferences imposed on others by law and culture, trans people are fighting to live.
As trans journalist Owl Fisher wrote: “We are just people, like you, wanting to live our lives without persecution. We just want to be able to be ourselves.”
Sam Fowles is a barrister, author, and columnist. He is on X @SamFowles
11 FEBRUARY 2024 12:00 AM
