An open letter to the Director General of the BSB

it's now been 1 year and 1 month since Sophie Molly complained I had brought my profession into disrepute by calling him a man. When will this complaint be resolved? And what is taking so long?

Open letter to the Director General of the BSB

13^th April 2025

Dear Mr Neale

Complaint re breach of CD 5

I am writing to you to raise a serious concern about how the BSB has responded to a complaint that I am bringing the profession into disrepute, after my request for information has achieved no satisfactory response.

I will publish this letter on my Substack as a matter of public interest.

I set out the timeline below.

What can be done to remedy my complaint?

Please provide a decision about this complaint or an explanation for the delay within 28 days.

Timeline of Mr Weddell’s complaint

On 16^th March 2024 Mr Weddell made complaint about me with regarding the following comment posted to the social media platform ‘X. Mr Weddell is a trans identifying man i.e. he claims that he is a woman, despite his biological sex being male.

“This man is not a woman. I am allowed to say this. But apparently saying this will incite uncontrollable hoards of students to try and attack me if I am invited to their University grounds right speak (sic) about an entirely unrelated matter. This is sufficiently insane. But it gets worse. Apparently its MY fault that they want to attack me. If Universities continue to collude with violent students then very soon the campus will be safe only for those with the biggest fists.”

This comment was part of a reposted picture of Mr Weddell which he had chosen to put in the public domain. He is pictured naked from the waist up with clothes pegs on his nipples and a ball gag in his mouth. I was clearly exasperated with Mr Weddell’s portrayal of what ‘woman hood’ meant to him and was responding in light of my recent ‘no platforming’ by Bristol University as a ‘security risk’ due to my gender critical views.

Mr Weddell complained in the following terms:

Sarah Phillimore took to twitter to transphobicly abuse me in a public tweet. I'm a transwoman and she wrote 'This man is not a woman. I am allowed to say this.' Her followers then replied by tweeting lots of extremely hurtful and dehumanising transphobic abuse at me. This brought me to tears. This is no way for any Barrister to act. She has openly commited unprovoked transphobic hate againts a vulnerable trans woman. I want to see her face disciplinary action over her abhorrent abuse of power.

Mr Weddell asked that his complaint be kept confidential from me due to asserted fears of some kind of adverse consequence if I were to be informed. He was granted this confidentiality. This complaint was rejected on 27^th June 2024 on the basis that I had been exercising my article 10 rights pursuant to the ECHR, and these attracted a ‘high degree’ of protection. Mr Weddell published that letter from the BSB on 3^rd July 2024 to the social media platform ‘X’ along with the following disparaging comment

Sophie Molly 🏳️‍🌈🏳️‍⚧️ on X: "This is disgusting from @barstandards. There is no such thing as 'gender-critical philosophical beliefs', it's just transphobic abuse. I will be requesting a review at my earliest convenience.

I then became aware of both the complaint and its rejection. I emailed the BSB to request that I was kept informed of the review process, as there was now no justification for continued secrecy, given that Mr Weddell had chosen to put this matter in the public domain.

On 10^th July 2024 Mr Weddell made a formal request for review and on 11^th October 2024 I was asked by the BSB to respond to it. I replied the same day

I am unclear why reference is made to the Equality Act 2010. It is my understanding that it has no applicability here but that Mr Wedell's only potential course of action against the BSB would be via judicial review, in that you unreasonably/irrationally failed to sanction me for breach of the Code of Conduct.

I suggest his complaint that you misidentified his relevant PC is therefore not relevant. However this is not my specialist area of law so I will make no further comment regarding this.

In my view, the relevant issue is whether the BSB was irrational/unreasonable to conclude that I had not breached the Code of Conduct by declaring that an identifiable male person is a man. I will continue to assert that by so doing I am exercising my rights to protected political speech pursuant to article 10 ECHR. My speech would have to be very seriously discreditable to lose that protection; I do not accept it is for all the reasons set out in Miller Miller -v- The College of Policing - Courts and Tribunals Judiciary and Holbrook Approved-Report-of-Administrative-Appeal-Decision-Holbrook-2.pdf (tbtas.org.uk)

I will of course continue to resist any finding, implication, inference or suggestion that I may not as a barrister refer to a male person as a man and I trust you will keep me informed of the process of this review.

On 8^th January 2025 I was sent a copy of the review which in essence asserted that the BSB had fallen into an error of law by concluding that ‘gender critical’ speech attracted an absolute protection, and relying on the cases of Lister and Sutcliffe as examples of where manifestation of gender critical views was not protected.

I found this a curious position as it did not appear to me that the BSB had afforded me ‘absolute protection’ but simply correctly recognised that my rights to political speech attracted a high degree of protection and my speech on this occasion was not so seriously discreditable as to lose that protection. Further, the cases relied upon by the reviewer with regard to unacceptable manifestation both involved school teachers and their students. For example, Mr Sutcliffe had chosen to ‘out’ a student on national television as transgender. I agree that this is not an acceptable manifestation of his gender critical belief. However, it is clear that I am not Mr Weddell’s teacher, he is a grown adult, and there was no such abuse of any power dynamic between us.

On 7^th March 2025 I emailed the BSB asking for indication of timescales for dealing with this complaint. Such was not forthcoming. It is now April 13^th 2025, 1 year and 1 month since Mr Weddell’s initial complaint.

Consequences of delay

I do not know why a complaint about such an important issue remains unresolved since its inception. I can think of only three reasons.

· This length of time is considered ‘normal practice’ for the BSB or

· the BSB does not have sufficient employees to ensure that such complaints are dealt with in a reasonable timeframe or

· the BSB is ‘frozen’ due to lack of understanding of the relevant legal principles or is reluctant to apply them.

I am concerned that all or any of the reasons, is unacceptable. If I am right in my interpretation of article 10 ECHR, this continuing delay in dealing with a serious complaint has an unfair and unnecessary chilling effect on a fundamental human right and is hence unlawful. It does not of course have any impact on me as an individual as I will continue to call trans identifying men ‘men’ whenever I think it is appropriate, but the dangers of the ‘chilling effect’ are noted in the case law to extend beyond the particular individual – see the judgments in Miller.

If I am wrong then I am persistently, publicly and deliberately bringing the profession into disrepute over a considerable period of time and Mr Wedell is left without redress.

My rejection of the complaint.

I set out in the Appendix below what in my view are the correct legal principles to apply to a complaint of this nature.

In brief, there is now no doubt that the belief that sex is real and it matters is a protected belief pursuant to the Equality Act 2010 following the decision of the Employment Appeal Tribunal in Forstater in 2021.

I accept that there is a need to consider carefully the manifestation of any belief in order to be reassured that the rights of others are not infringed. I accept that manifestation that tips into harassment, seriously abusive language or threats of violence is unlikely to be protected pursuant to article 10 ECHR. I also accept that as an identifiable member of a regulated professional, even if I not speaking in my capacity as a barrister, I have a responsibility to recognise the privileges afforded to members of that profession and may therefore be held to higher standards in public life than someone who is not so regulated.

I do not accept however that I can be reasonably be found to have brought my profession into disrepute and hence my article 10 rights curtailed, unless the manifestation of my protected belief can be deemed seriously discreditable.

Is the objection to identifying trans identifying men as men in general?

I am unclear if the objection to my speech is a general objection to calling trans identifying men, men or a specific objection that I refer to a particular named individual as a man so will examine both scenarios in turn

If the objection is that I may not in any context publicly state that trans identifying men are men, then absent the use of scurrilous, abusive or threatening language or serious abuse of a position of power, in my view such an assertion is an unlawful breach of article 10 ECHR.

There is no doubt that open discussion about sex and gender is a now matter of significant political importance and covers a very wide range of areas; for example.

· The final report of the Cass Review in 2024 recognised the lack of evidence to support the medical transition of children and has led to the Government confirming a ban on prescription of puberty blockers for children. The High Court has in turn recognised that the court may have continuing oversight of medical transition to the age of 18 due to the rapidly changing legal landscape with regard to provision of cross sex hormones.

· Disagreement regarding the primacy of sex as opposed to ‘gender identity’ and the correct interpretation of ‘sex’ in the Equality Act 2010 has reached the Supreme Court and a judgment will be handed down on April 16^th 2025. For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent): supreme court hearing – statement of case - gov.scot

· There is wide ranging and ongoing discussion about trans identifying men competing in women’s sports. For example see Women’s pool final between two biological men shatters defence for transgender athletes

· The Office for Students fined Sussex University £585k on 26^th March 2025 for its failure to protect freedom of speech around issues of sex and gender University of Sussex fined £585,000 for free speech and governance breaches - Office for Students.

· The YouGov ‘Summary of British attitudes to transgender rights 2024/5’ noted ‘scepticism towards transgender rights has grown across the board since 2022’ and that the majority of Britons polled disagreed with the statement ‘increased trans recognition and rights does not pose any genuine risk to women’s rights’; the majority agreed with the assertion ‘trans women should not be allowed to take part in women’s sporting events’. Where does the British public stand on transgender rights in 2024/25? | YouGov

· The independent review of the collection of data carried out by Professor Sullivan published on 19^th March 2025 shows the harm done to effective data collection by the conflation of sex and gender identity Independent review of data, statistics and research on sex and gender - GOV.UK

· I note the recent decision in the Australian Family Court where Judge Strum commented at para 123 in his judgment of 9^th April 2025 Re: Devin [2025] FedCFamC1F 211 (3 April 2025)So expressed, I do not consider Dr M’s opinions, for which he was criticised by the mother, to be transphobic or ideologically extreme (or, indeed, extreme at all). A distinction is drawn between sex, which is biological, on the one hand, and gender, which is a matter of identity, on the other. A biological male and a transgender female, even one with breast implants and/or a vaginoplasty, have and always will have XY chromosomes. Conversely, a biological female and a transgender male, even one with a mastectomy and a phalloplasty, have and always will have XX chromosomes. Save for rare chromosomal anomalies, that biological fact is immutable, irrespective of gender identity.

I have on many occasions called trans identifying men ‘men’ and I intend to continue to do so across a variety of social media platforms, including X, YouTube, LinkedIn and Substack.

· I note that none of my posts on LinkedIn have been removed for violation of that platform’s terms of services. For example, this Substack post, cross posted to LinkedIn February 8 2025 3,211 Use your judgment - by Sarah Phillimore

· In February 2025, I engaged in a discussion published on YouTube which has had 46K views to date, about the NHS Fife tribunal hearing during which I was very clear that Dr Beth Upton is a man, regardless of his professed gender identity The Sandie Peggie Tribunal: Gender Ideology On Trial | Chat with Sarah Phillimore

I also note that this tribunal hearing involved the barrister for Ms Peggie asserting and cross examining on the basis that Dr Upton is a man. I am not aware that any complaint has been made or upheld against this barrister.

Is the objection to me publicly identifying this particular trans identifying man as a man?

I have accepted that this scenario may require further examination to determine if I have targeted an identifiable individual for harassment, abuse or threats, which if true is unlikely to be protected by article 10 ECHR and may bring the profession into disrepute.

Given my understanding of the law set out in the Appendix below, I suggest the following questions and answers may assist the BSB in its determination of this complaint.

Is the speech complained about political in nature and therefore offered significant protection by article 10 ECHR? As I have set out above, I assert that the issue of men’s claims to be women is one of significant public interest and political debate. The post of his to which I objected showed Mr Wedell naked from the waist up with clothes pegs on his nipples and a ball gag in his mouth. Mr Wedell had chosen to make that image publicly available and I assumed this was an example of what Mr Wedell identified as an expression of his ‘womanhood’.

I found that deeply offensive but accept that Mr Wedell has a right to such public expression and that my offence is insufficient to remove that right.

Did my speech involve a protected belief pursuant to article 9 ECHR and the Equality Act 2010? Yes

Did I speak/publish as a barrister? I accept I am identifiable as a barrister but I assert it is clear that my social media post was not asserting some legitimacy by way of my profession, I posted as a private individual.

Was my speech ‘morally culpable or otherwise disgraceful’? No. I did not use profane, abusive or threatening language. I did not use derogatory racist or sexist terms. I did not incite violence against Mr Wedell. It was not a comment designed to demean or insult. It was a statement of fact. It is not possible to change sex.

Did my speech raise a reasonable concern that I would discriminate against transgender people in practice? No. Believing that no one can change sex does not mean it is a legitimate conclusion that I would automatically be unable or unwilling to represent a transgender person to the best of my abilities and according to the law as I understand it.

Was my speech targeting a private individual for harassment or ‘outing’ someone as transgender who wished to maintain privacy about this issue? No. Mr Wedell is an identifiable and frequent contributor to the debate about sex and gender, sadly on occasion using abusive language to those women who disagree with him. He operates a YouTube account where he identifies himself as transgender. (1946) Sophie Molly (Sparkles) - YouTube

I note in May 2024 he was deselected as a candidate for the Scottish Green party after what was described as a public ‘rant’ against the author JK Rowling calling her a ‘torn faced cow’. I note the article itself refers to Mr Wedell as “Molly, who identifies as a woman but was born a man”, 'JK Rowling is a cow' Green candidate quits party for SNP after being dropped - Scottish Daily Express

Was I in any kind of relationship of proximity with Mr Weddell or was there any existing power dynamic (such as client/junior colleague) which may risk a greater negative impact on Mr Weddell than otherwise would be the case? No. Mr Wedell is not my student, my colleague or a client. I have no relationship of proximity with him whatsoever. He is not a child.

When considering those questions above, would imposing a professional sanction on me for my speech be a proportionate response to the harm alleged? No

Conclusions

I do not accept that any of my publications, on any platform, cross the line that would remove my protection of article 10 ECHR. I accept that some may genuinely find my views offensive, but that is not the applicable test to determine if I have brought profession into disrepute. To rely solely on the offence claimed by others, would be a wholly disproportionate and hence unlawful response. The context of my speech and the offence claimed are both significant.

My comment about Mr Weddell was in the context of the live and significant political debates which I highlight above and in which he frequently choses to insert himself as a trans identifying man.

If the failure of the BSB to determine Mr Weddell’s complaint in a timely manner is due to lack of available staff, or proper understanding of the relevant legal principles, then I trust this will be remedied soon. There is particular urgency to this if the BSB is successful in imposing a positive obligation on barristers to ‘promote’ or ‘support’ EDI. You will no doubt then be faced with a number of complaints for non compliance and the ability to respond effectively will depend on the ability of the BSB to analyse effectively the legal principles I set out below.

I note your comments at the Westminster Legal Forum on February 10^th 2025 that you disagreed that ‘EDI’ carried any ‘ideological freight’ and that you saw the imposition of a duty to promote it as not merely a legal but a moral duty. This does cause me concern that the true reason for the delay here is that the BSB understand the legal realities of Mr Weddell’s complaint, but are reluctant to declare them due to ideological influence and a continuing bias against those who hold ‘gender critical’ beliefs.

If true, I consider that to be a very serious and concerning failure which risks the BSB falling into unlawful acts/omissions and consequent legal challenge.

I set out below in an attempt to engage in good faith, what I consider are the relevant principles of law the BSB must apply to circumstances such as these. I hope you will find it of assistance.

Regards

SP

APPENDIX 1 The relevant law

Considering articles 9/10 ECHR in the context of regulated professionals.

Article 9 ECHR provides:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public and in private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10 ECHR provides:

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 …

2. 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.

The importance of article 10 ECHR

Freedom of speech has long been recognised as an essential and fundamental human right. See the European Court decision of 1976 in Handyside v UK

Freedom of expression constitutes one of the essential foundations of a ["democratic 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”.

There is a hierarchy of free speech. That which involves gratuitously personal abuse, derogatory racist or sexist language is likely to lose its protected status (see Diggins v BSB [2020] EWCH 467 (Admin). ‘Mere gossip’ ranks low and therefore a need for compelling justification for interference is correspondingly less (see Kahn v BSB [2018] EWHC 2185 (Admin).

Political speech attracts the highest protection (see Court of Appeal in Miller [2021] EWCA 1926) and the courts are alert to the danger of the ‘chilling effect’ interference with article 10 has on others. (See Miller [2021] EWCA Civ 1926 para 68)

Restriction upon the exercise of qualified Convention rights by regulated professionals

Rights protected under articles 9 and 10 can be qualified and restricted provided that the restrictions are in accordance with the published law and principles, and pursue a legitimate aim to protect health, morals and public order.

Professional bodies and organisations are entitled to place reasonable and proportionate restrictions on those subject to their professional codes. Assessing the conduct of a regulated professional is a distinct and fact specific task which can only be judged by a careful assessment of all the circumstances of the case (see Page v NHS Trust Development Authority [2021] EWCA Civ 255).

In R (Ngole) v University of Sheffield [2019] EWCA Civ 1127 , the Court of Appeal held it is legitimate aim to uphold confidence in the social work profession and that an interference in Convention Rights to uphold such confidence was prescribed by law. The Court of Appeal were clear that manifestation of any such belief was not unfettered ‘just because a belief is said to be a religious belief, does not give a person subject to professional regulation the right to express such beliefs in any way he or she sees fit.’

However, the Court of Appeal held that removal of the appellant from an MA course in social work because of his social media posts to the effect that homosexuality is a sin, was a disproportionate interference with his rights under Article 10 ECHR.

It was untenable to adopt the position which the University did; that any expression of disapproval of same sex relations on social media was a breach of professional guidelines. The University should have been clear with the Appellant that the concern was the manner and language in which he expressed his views; those views were not a bar to practice as a social worker provided they did not affect his work or mean that he would or could discriminate. Mr Ngole was clear that he did not discriminate against gay people and gave examples of successful working relationships.

When is it permissible to restrict a qualified Convention Right

The questions posed by Lord Hope in R ( Purdy) v DPP [2009] at [40], [41] remain applicable.

40 The Convention principle of legality requires the court to address itself to three distinct questions. The first is whether there is a legal basis in domestic law for the restriction. The second is whether the law or rule in question is sufficiently accessible to the individual who is affected by the restriction, and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law. The third is whether, assuming that these two requirements are satisfied, it is nevertheless open to the criticism that it is being applied in a way that is arbitrary because, for example, it has been resorted to in bad faith or in a way that is not proportionate.

A restriction that is not proportionate is not lawful.

In Bank Mellat v HM Treasury (No 2) [2014] AC 700 Lord Sumption summarised the requirements of proportionality as set out in previous authorities.

"20. ….. the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them."

Example of where restriction of a qualified Convention Right was proportionate

In Sutcliffe , a teacher had strong and sincerely held religious beliefs about gender identity and homosexuality and refused to accept the school’s policy with regard to preferred pronouns. When interviewed on television, his remarks enabled others in the school to identify the transgender pupil concerned.

Pepperall J. recognised the particular vulnerability of children and adolescents and held:

60. It is fundamental that teachers should not only educate but that they should at all times treat the children in their care with dignity and respect and that they should safeguard their well-being. Insofar as the Teachers' Standards qualify a teacher's right to manifest their religion or beliefs and their freedom of expression, I have no doubt that such restrictions are proportionate in the sense identified in Bank Mellat v HM Treasury (No 2) [2014] AC 700 …

Just because misgendering a transgender pupil might not be unlawful does not mean that it is appropriate conduct for a teacher or that, when done repeatedly and deliberately both in class and on national television in breach of the school's instructions and ethos such that distress is caused to the child, it cannot amount to professional misconduct.

Examples of where restriction of qualified Convention Rights was not proportionate

In Higgs v Farmor's School [2025] EWCA Civ 109 , the Court of Appeal found the appellant had been unlawfully discriminated against. She was dismissed by her employer, a school, because of social media posts objecting to promoting ‘gender fluidity’ in sex education in primary schools and to equation of same sex marriage with marriage between a man and woman. Neither the language of the posts nor the risk of reputational damage to the school were capable of justifying her dismissal.

The Court of Appeal considered that the question of whether the employer’s response is objectively justifiable is to be answered by reference to the EAT’s guidance which Underhill LJ endorsed [112-113].

· The content of the manifestation

· The tone used

· The extent of the manifestation

· The worker’s understanding of the likely audience

· The extent and nature of the intrusion on the rights of others and any consequential impact on the employer’s ability to run its business

· Whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that m ight present a reputational risk

· Whether there is a potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon,

· The nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients

· Whether the limitation imposed is the least intrusive measure open to the employer

Holbrook v BSB [2021] Case No: 2021/4441

Barrister Jon Holbrook appealed against a decision to impose an administrative sanction for publishing on social media the comment ‘Free speech is dying and Islamists and other Muslims are playing a central role. Who will lead the struggle to reinstate free speech as the foundation of all other freedoms?’ The BSB argued that a sanction was necessary in a democracy as the speech was offensive because Mr Holbrook singled out Muslims for criticism. The Tribunal agreed that speech would need to be ‘seriously discreditable’ to permit restriction as a member of a regulated profession. The fact that the publication would cause offence ‘fell far short of establishing the type of conduct necessary for a breach of CD5 when the right to freedom of expression was engaged’ – para 47.

Further, the Tribunal discussed R v The General Medical Council ex p. Remedy UK Ltd [2010] EWCH 1245 (Admin) , conduct taking place outside the course of professional practice only attracts sanction where it involves ‘conduct of a morally culpable or other disgraceful kind.. which brings disgrace…’