Judge Malcolm Simmons and Freedom of Speech

I disapprove of what you say, but I will defend to death your right to say it epitomises the essence of free speech. There is a right to free speech; not a right to be free from being offended. However, recent cases have pushed the boundary as to what is considered free speech and what should be tolerated in today’s society.

One particularly contentious issue is sex and gender, and what one is allowed to say on social media platforms. In Maya Forstater v Centre for Global Development (2200909/2019) it was held, on appeal, that having ‘gender-critical’ opinions, such as believing in biological sex and that trans people do not biologically become their re-assigned sex, could constitute a philosophical belief.

Whereas the trial judge had concluded that Mr Forstater’s view were ‘absolutist’ and therefore not ‘worthy of respect in a democratic society, Justice Choundhury disagreed. He ruled that Ms Forstater’s views were not akin to ‘Nazism [nor] totalitarianism’ and therefore fell outside of the scope of Article 17 of the ECHR, which prohibits the abuse of rights.

While some may view this as a victory for those who are gender-critical, it is important to remember that the appeal judge was not being asked as to the merits of Ms Forstater’s case. He was not, and gave no comment on, whether the beliefs in question were correct. The case is still ongoing as to the substantive issue as to whether Ms Forstater was discriminated against because of her belief.

Furthermore, the appeal judge emphasises, as does the Claimant herself, that the ruling does not mean that transgender individuals should be harassed, discriminated against or other abused because of their gender identity. Employers will still be able to provide a safe space for trans persons and be expected to maintain policies of diversity and inclusion.

The ruling is therefore a victory for free speech itself. Tt supports the idea that such beliefs should not be prohibited or ‘cancelled’ just because they may make others feel uncomfortable. The line is drawn at inciting violence or hatred against others, not simply in making others upset.

To the average person, this means that Twitter, Facebook or other social media should have no grounds from removing content with those comments, and speakers on this topic should not be ‘no-platformed’. However, as these are private hosting sites and private events, the organisers might choose to set their own rules and terms.

Article written by Alina Dewshi, Audley Chaucer Solicitors