Use your judgment

I did. And it turns out I was right. This is the value of allowing freedom of speech.

I was delighted to be asked to speak at the Westminster Legal Policy Forum keynote seminar: Next steps for equality, diversity and inclusion in the legal profession, which will take place on Monday 10^th February. My aim is to sound a note of caution. I make it clear that I will not be supporting any attempt to enforce a professional obligation to promote, advance or support EDI until I can be appropriately reassured

· About the evidence base for positive outcomes,

· that the rule of law and article 10 ECHR will be recognised and protected.

Because without proper respect for the rule of law and in particular article 10 ECHR which protects freedom of expression, then all we have is the subjective determination of one group or even one person as to what is permissible as sufficiently ‘inclusive’ or ‘diverse’.

This failure to look beyond subjectively defined parameters has led to the astonishing string of legal victories for those women who were treated with contempt for wanting to talk about their lawful and protected views that sex is real and it matters– Forstater, Bailey, Meade, Phoenix, Famhy, Pitts, Adams and Frances. Costs and damages must run into many millions of pounds by now.

I hope soon to add Peggie to the list; the Scottish nurse who was sanctioned for objecting to the presence of a man in the female changing room, simply because that man now calls himself a woman. Changing room trans row nurse tells tribunal she felt intimidated - BBC News

Dr Beth Upton ‘transitioned’ a mere three years ago but told the Employment Tribunal that he was a woman, because he shared women’s experiences, such as being ‘cat called’ or other inappropriate sexual attention from men. I express polite scepticism that this ever happened, but even if Dr Upton is fighting off leering men from dawn to dusk, this does not make him a woman and does not given him any understanding of women’s experiences; not least because Dr Upton is over six feet tall and hence has rather a better chance of fighting off lascivious males than would the vast majority of women.

I was delighted to read that this case prompted a revised Judicial Directive to warn Judges to be careful with their pronouns, particularly in cases involving sexual violence or where parents contested the ‘trans identity’ of their child Stop using trans pronouns in sex crime cases, judges told.

This is a colossal step forward from earlier iterations of the Equal Treatment Bench Book which suggested that women should be criticised if referring to their male attackers as ‘he’. A contributor to that version of the ETBB was of course ‘Britain’s First Trans Judge’ Victoria McCloud who resigned after numerous discriminatory social media posts, decrying women who thought sex was real and it matters as ‘hateful’. He then denied to me that he had anything to do with the ETBB, despite being listed as a contributor. Britain's first transgender judge Master McCloud signs off | Law Gazette

On 7^th February 2025 the BSB put out a statement about barristers and freedom of speech, in the wake of their most recent defeat regarding Dr Proudman. She was brought before a disciplinary tribunal for making critical comments about a Judge in one of her cases in 2022, the charge being that she had brought the profession into disrepute. Dr Proudman rightly pointed out that male barristers who had called her a ‘cunt’ on line went unpunished, so too did barrister Jolyon Maugham who said arguably much worse things about a serving judge being ‘transphobe adjacent’ . But presumably because Maugham reflected the approved position regarding gender identity, he went unpunished.

The case against her was thrown out almost instantly, as a breach of her article 10 rights. Dr Charlotte Proudman’s Victory in the Case brought against her by the BSB. - Goldsmith Chambers

Mark Neale the BSB Director General said this on 7^th February 2025 Free speech and professional obligation: Striking the balance

"Any individual case will always turn on its own facts. How far was a barrister speaking in his or her professional capacity or, at least easily identifiable as a barrister? How far were the views expressed political in nature (where we should allow more latitude)? Above all, how intemperate was the expression of the views and with what potential impact on public confidence in the profession and in the justice system? Whether a line has been crossed into a potential breach of the BSB Handbook will always be matters of judgement for the regulator taking into account the law, including caselaw developments in this area. But barristers too must exercise judgment when speaking or writing publicly on controversial matters. Professionalism carries responsibilities as well as rights."

He was also concerned that barristers should not give the impression that they would not be able to represent certain sectors of the community.

These are all valid comments and are worthy of consideration. However, the BSB are currently consulting on an addition to the Code of Conduct, which will make it a professional obligation to promote ‘EDI’.

Unless and until organisations like the BSB recognise the dangers of embracing what is a contested political ideology and using it as the lens through which they see something as fundamental as free speech, they risk continuing to be on the wrong side of the law.

I was told by the BSB that I risked bringing the profession into disrepute by my ‘sex realist’ views. I had to instruct specialist solicitors to warn them of the dangers of discrimination before they backed down. And it turns out that I was right. I was right to object strongly to women being compelled to refer to ‘her penis’, to children being subjected to unevidenced and irreversible medical interventions to ‘transition’. A belief that sex is real and it matters does not disqualify me from being a barrister or representing a trans person, if they wished to ever instruct me.

I accept that gender identity is important to some people and must be protected, just as with any other religion or philosophical belief that passes the Grainger test. But that doesn’t make it more important than sex and the potential upset or offence caused to those who dislike my views is a million miles away from me bringing my profession into disrepute. I am confident that I can represent a trans person to the best of my abilities, just as I as an atheist have had Christian, Jewish and Muslim clients.

If you cannot tolerate a different point of view, you are going to find it difficult to live in the world. But if you are a person of power and influence you are going to do real harm, to the rule of law and the fundamental rights of those individuals who have the misfortune to think differently to you.

It should not be so difficult. I appreciate that members of regulated professions are held to higher standards than the general public. Using profane and abusive language, threatening violence, saying things which are not true, none of this is acceptable. But refusing to recognise the harm done by a lack of respect for diversity of political thought is also dangerous.

In 2016 I complained about a fellow barrister abusing me on line. The BSB told me it was her article 10 right so to do. Three years later and two threats of judicial review from me, she was suspended from the profession for two years. I trusted my judgement and I persisted. No one has an article 10 right to stalk and abuse anyone on line or elsewhere. I was right about that. And I am right about the material reality of sex.

But even if I am wrong, I have the right to discuss these issues openly provided I can do so without using threats and abusive language. I should be able to do this without threat of censure and punishment. It is only through open discussion that we are able to reach resolution. Anyone who finds this process upsetting, needs to be told that this is their problem, not a weapon they will be encouraged to wield to silence others.