Dear Mike Buchanan,
Welcome to the FSU’s weekly newsletter, our round-up of the free speech news of the week. As with all our work, this newsletter depends on the support of our members and donors, so if you’re not already a paying member please sign up today or encourage a friend to join and help turn the tide against cancel culture. You can share our newsletters on social media with the buttons at the bottom of this email (although not if you’re reading this on a desktop). If someone has shared this newsletter with you and you’d like to join the FSU, you can find our website here.
LGB Alliance retaining its charitable status a victory for free speech
After almost two years of litigation and deliberation, a tribunal ruled that the law does not allow transgender children’s charity Mermaids to challenge the charitable status of the LGB Alliance (LGBA), the ‘gender critical’ gay rights organisation set up to represent gay, lesbian and bisexual people on the issue of gender identity (Guardian, Spiked, Telegraph).
The ruling was described variously as a “seminal moment for pluralism” (Critic, Times), a “lesson in tolerance for the toxic trans lobby” (Mail), a victory for free speech (Spectator), “freedom of thought” (Mail) and “scientific truth” (Spiked).
Mermaids’ appeal against the Charity Commission’s (CC’s) decision to award LGBA charitable status was based on the argument that by publicly criticising Mermaids’ work, the group had caused harm to trans people. It also claimed that LGBA’s opposition to its lobbying “has caused significant interference with our work, consequences for our reputation, and potential financial cost to us”.
From the very first day of LGBA’s existence, the organisation has been exposed to the worst excesses of cancel culture. Some politicians abused parliamentary privilege to make defamatory attacks on the group. Media outlets carried misleading stories about it and refused it a right of reply. Campaigners tried to prevent the organisation from finding space to hold its annual conference. Arts Council England even withdrew a grant to LGBA to make a film about gay life in Britain during the Queen’s reign, with staff at the taxpayer funded quango likening the group to the Klu Klux Klan. And so on and so forth.
“It is astonishing,” wrote Janice Turner in the Times, “how Mermaids, and the wider LGBTQI+ sector, whose abbreviation includes the “T” for trans, could not tolerate the tiniest of opponents. Mermaids has 18 staff, has received millions in public money including a £500,000 National Lottery grant, and its fund-raising cookies are sold in Starbucks; LGB Alliance has three staff paid with small private donations.”
Mermaids’ case was of course backed by Jolyon Maugham’s Good Law Project. Earlier this year, Mr Maugham published a book which Prof Yuan Zi Zhu, reviewing it for the Times, described with commendable restraint as “unbearably boring”. Its title? Bringing Down Goliath: How Good Law can Topple the Powerful.
The appeal was intended to address two issues: whether Mermaids had the legal right (known as ‘standing’) to challenge the decision of the Commission to register LGBA as a charity; and, if it did, whether LGBA meets the definition of a charity as set out by the Charities Act 2011.
In fact, standing was the only issue the tribunal ruled on, a point that Pink News was quick to spot, with the pro-trans news site subsequently describing the ruling as one that did little more than allow the “‘gender critical’ group” to “escape judgement on a technicality”.
Not so, says the Barrister Barbara Rich – standing is in fact “an important element in a scheme created by Act of Parliament” (ConHome). As per the Charities Act 2011, an appeal over a decision to register any given organisation as a charity may only be brought by persons who are eligible to ask judges to do so. This is ‘standing’. Who has it? The Attorney General for one, along with various other groups, including “any other person who is or may be affected by the decision”. Mermaids submitted that it fell within that category.
The key phrase there is “affected by”. In its strictly legal sense, the term is interpreted narrowly to mean situations where there may, actually or potentially, be a direct effect on a person or organisation’s legal rights arising from the CC’s decision to register a new charity.
Mermaids had sought to argue that the decision to grant LGBA charitable status gave the group access to funds that made its activities more effective, in particular as regards interference with Mermaids’ endeavours. The “height of the factual case put on behalf of Mermaids”, as the ruling puts it, was that LGBA’s “false claims” about Mermaids were now being taken more seriously and that “people might well think twice about publicly supporting us, working with us, or applying for jobs with us, given the climate LGB Alliance has created”.
It’s fair to say the panel wasn’t impressed with that line of argument, ruling that Mermaids had “no legal right to operate free of criticism, or from having it said that it is undeserving of public money in comparison to another charity”. Elsewhere, the ruling is similarly strong on the importance of freedom of expression, noting that “the fundamental rationale of the democratic process upon which our society is founded is that when competing views, opinions and policies are publicly debated and exposed to public scrutiny, the good will over time drive out the bad and the true will prevail over the false”.
In judicial terms, that’s the equivalent of an overhand right delivered during a world title fight by a Tyson Fury who’s just remembered he’s got a table booked at The Savoy in 40 minutes’ time. In just a few short paragraphs, Stonewall’s ‘no debate’ mantra, which maintains that dissent is abuse and words equal violence (thus justifying physical violence in response), is summarily despatched.
All of which only really left Mermaids with its hurt feelings to cling onto; the sense that people had been emotionally “affected by” the LGBA’s words and deeds. But so what? The issue at law was not how many fluid ounces of tears may or may not have been shed into pillows in the small hours of the night, but whether a person or organisation’s legal rights had been affected by the CC’s original decision. As the judgement points out, “the fact that Mermaids and those they support have been affected emotionally and/or socially is insufficient to provide them with standing to bring this appeal, no matter the depth of the feelings resulting from the Decision or the strength of their disagreement”.
Writing in the Spectator, Brendan O’Neill suggests that the case against LGBA has now been comprehensively dismissed. But has it? The judge who made the initial December 2021 ruling that evidence and legal argument on both standing and the full merits review of the CC’s decision should be heard together, thought an appeal on standing was foreseeable.
According to Barbara Rich, an appeal upwards through the tribunal and court system would have to reach the Court of Appeal, with a permission filter at each stage, to have any prospect of changing the current interpretation of “affected by”.
English charity law has always been pluralistic in its accommodation of a range of beliefs. If a less narrow version of “affected by” were subsequently to be established on appeal, it would risk weaponising concepts like “insult” and “offence”, gifting activists in charities up and down the country an opportunity to challenge the charitable status of any groups they happen not to like for purely ideological reasons.
And what, meanwhile, of LGBA? Tying the group up in exhausting, expensive litigation for the past two years has effectively allowed the process to become the punishment. Its legal fees now stand at more than £250,000 and have meant that funding applications for a planned helpline and a history project have had to be put on hold. Were it to materialise, an appeals process would surely prove even more time-consuming and expensive – and all the while, the group would remain in existential limbo until all appeals were exhausted. You can contribute to LGBA’s CrowdJustice fundraiser here.
Incidentally, a playwright and journalist called Phelim McAleer has written a verbatim play based on transcripts of the tribunal hearing. Judging from Phelim’s previous work, it should be very funny. He is holding a staged reading at a theatre in Camden Town on 22nd July and those wishing to purchase tickets should click here.
Sibyl Ruth fundraiser – join the fight!
FSU member Sibyl Ruth hopes to continue her fight for the free speech rights of those in the arts world at the Employment Tribunal in September – and now she needs your support.
You can find out more about the case and pledge your support here.
Last year, Sibyl’s contract with her ex-employer, Cornerstones Literary Consultancy, was effectively terminated after she dared express her gender critical beliefs on Twitter. Now Sibyl is seeking to bring a discrimination claim against Cornerstones.
Sibyl had been working for Cornerstones as one of their ‘Core Editors’ without issue for about a year when odd things started to happen. First, management told her a client she had been working for no longer required her services. Then she was removed from the editors’ page on the Cornerstones website. Finally, she was told it was “unlikely” that more projects would come her way.
Thanks to a Subject Access Request she subsequently discovered that a member of staff at Cornerstones had objected to Sibyl’s gender critical views. But by then it was too late. Cornerstone had stopped all the work she was doing for them, and effectively terminated her.
Sibyl’s case is that Cornerstones discriminated against her based on her lawful gender critical beliefs and her age.
The case of Forstater v CGD Europe does of course establish that gender critical beliefs are protected under the 2010 Equality Act, and are therefore “worthy of respect” in a democratic society.
However, the first phase of Sibyl’s case will involve establishing that she’s entitled to Equality Act protection in the first place. That’s because she was employed on a precarious contract with Cornerstones and labelled an ‘independent contractor’ rather than an employee.
Whether contract writers are ‘employees’ is therefore an important question of law. Without such status, writers like Sibyl do not benefit from employment legislation preventing unfair dismissal or the protections of the Equality Act against unlawful discrimination.
That’s why it’s important we support Sibyl as she brings this case, which could be of ground-breaking importance for the arts world and beyond, signalling to de facto employers that they will be held accountable for discriminating against their employees.
Once again, we need your help. Please join the fight and support Sibyl’s crowdfunder here.
Jacob Rees-Mogg tables law to halt terrifying rise of de-banking
The fight back against financial censorship continues to gather pace, with former Business Secretary Jacob Rees-Mogg tabling an amendment to the Digital Markets, Competition and Consumers Bill to prevent banks from blacklisting customers who hold controversial but lawful views (Express, Express, Telegraph).
Sir Jacob said: “I would hope the Government will take up this amendment. This is where the Government wants to be; it is helping their policy.
“Without a bank account you are a non-citizen because we don’t have protection of cash in this country,” he added. “Many shops no longer take cash. If you don’t have a bank account, you are a non-person. You would hope the Government is sympathetic to this amendment.”
His amendment defines discrimination in terms of breaches of human rights. A customer would have a right to damages for financial loss, emotional distress and physical inconvenience and discomfort if a bank closed their account because it disapproved of their lawful political beliefs.
Banks would also be required to provide customers with a written statement of their reasons within 30 days of their decision.
As FSU General Secretary Toby Young points out in Spiked, that last point is particularly important, not least because the 2010 Equality Act makes certain forms of belief discrimination illegal, so if customers are de-banked because the payment services provider disapproves of their ‘protected’ beliefs (such as gender critical beliefs), and can prove it, the customer could sue.
As the FSU has been pointing out to friends and supporters across both Houses of Parliament ever since we were deplatformed by PayPal last year, the problem at the moment is that financial services providers don’t have to reveal why they’re closing accounts.
If, however, they were required to be more transparent about the decision-making processes involved during account termination – and aren’t allowed to close accounts for purely political reasons – then any lenders wishing to de-bank customers for ideological reasons would be faced with a stark choice: stop engaging in politically motivated financial censorship or prepare to be sued by your ex-customer.
We’re now working on some guidance for our members about how to complain to the financial ombudsman if you’ve lost an account – or sue if you can prove you were discriminated against. We’re also doing some research into how respectful each payment processor is of its customers’ free speech. The aim is to give all of them a score out of 10, depending on how they react to customers who say something unorthodox but perfectly lawful. So far, none has been awarded a score of more than three.
If any of our members or supporters need to talk to someone about their own experiences of financial censorship, email our case team on firstname.lastname@example.org.
FSU Summer Speakeasies – tickets now available!
If you can get to Edinburgh on Wednesday 19th July, please come to our Summer Speakeasy on the timely subject, ‘Can the Arts Survive and Thrive in Scotland?’ Taking place just weeks before the Edinburgh Festival, where comedian Jerry Sadowitz will return with his show, in defiance of last year’s cancellation, and Joanna Cherry MP is due to speak after an attempted no-platforming. Our guest speakers – poet Jenny Lindsay, actress and producer Kirstin McLean and award-wining author Ewan Morrison – will take us through the free speech issues faced by artists, writers and performers north of the border, and discuss how we can stand up for the right of audiences to judge for themselves. Get your tickets here.
The following day, Thursday 20th July, we will be in Manchester with a fascinating event entitled ‘Free Speech: A Radical History’, with a particular focus on the city’s historic political struggles. We have lined up two local historians – Michael Herbert of Red Flag Walks and Jonathan Schofield, tour guide and editor of Manchester Confidential – to share their knowledge. They’ll be joined by historian Dr Cheryl Hudson. Tickets are available here.
Met belatedly arrests trans activist for inciting violence against ‘TERFS’
The Metropolitan Police has belatedly arrested a trans activist and convicted attempted murderer who told cheering activists at a Trans Pride event in London: “If you see a TERF, punch them [sic] in the f***ing face.” (Mail).
‘TERF’ is an acronym for trans-exclusionary radical feminist. The Telegraph describe this as “a term used to describe people who believe that a trans woman’s gender identity is illegitimate”, although a more charitable way of putting it would be to say that ‘TERFS’ defend women’s hard-won sex-based rights on the basis of their belief in the immutable biological reality of sex.
The trans activist in question, Sarah Jane Baker, spent a total of 30 years in jail, having originally been convicted of kidnapping and torturing someone, and then while incarcerated having been convicted of attempted murder for breaking into a prisoner’s cell and trying to strangle him to death.
Addressing a cheering crowd, the ex-convict said: “I was gonna come here and be really fluffy and be really nice and say yeah be really lovely and queer and gay… Nah, if you see a TERF, punch them in the f****** face.”
It’s a statement that’s all the more chilling given that Baker is currently targeting the gender critical barrister Sarah Phillimore, and has demanded access to the launch event for her book Transpositions in Manchester later this month.
In the wake of Sarah Jane’s comments, a spokesman for London Trans Pride defended the ex-convict, saying: “Sarah and many others in our community hold a lot of rage and anger and they have the right to express that anger through their words.”
The spokesman continued: “We do not condone violence, we do not back a call to arms for violence of any kind. We do condone righteous anger and the right to the free speech that was expressed yesterday.
But is an utterance of this kind protected by a person’s lawful right to free speech? Initially the Met suggested it was.
When Sarah Jane was reported to the police for inciting violence, a Met officer told the complainant that it was not in the public interest to pursue the case. Acting Police Sergeant Daniel Warner wrote in an email: “I have reviewed the matter you reported to us, which relates to a Sarah Jane BAKER stating if you see a TERF you should punch them in the face.” Casually adopting the derogatory term used by Baker, a criminal with a violent history, Sgt Warner continues:
A TERF [sic] is not a protected characteristic under the legislation. A TERF would be a person’s opinion [sic], whether this opinion is viewed as discriminatory itself or not. The female [sic] is suggesting (inciting) members of the crowd to punch individuals who act on this belief. This is not targeted at an individual, this is in a hypothetical situation.
A stylist in the manner of Ernest Hemingway, Sgt Warner goes on to concede that “the most appropriate offence may potentially be a PO s5 [Public Order Act 1986 s.5]”, before indicating that he did not believe “that this is proportionate to progress any further”. Why? Because “[w]e need to take into account article 10 of the ECHR – freedom of expression”.
But as the barrister Dennis Noel Kavanagh points out in an eviscerating review of Sgt Barker’s email, Article 10 is not a blanket defence against threats of violence. As per Mr Justice Sedley’s ruling in Redmond-Bate v DPP, “free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence” [our emphasis].
The case against Barker is, as Prof Ian Acheson points out in CapX, compounded by the fact that, having been convicted of a life sentence, he will have been released under the terms of a ‘life licence’ – i.e., a set of restrictions detailing various requirements, including “to be of good behaviour” and to “not commit any offences”. So, even if the Met initially saw nothing criminal about Baker’s behaviour at the Trans Pride parade, the bar is normally set much lower for probation supervision.
Scotland Yard has since confirmed that the crime report had been reopened. On Wednesday, Baker was filmed being handcuffed by an officer inside a house. A Met Police spokesman said: “A 53-year-old woman has been arrested on suspicion of incitement to violence. She has been taken into custody.” (Mail).
The latest episode of the FSU’s weekly podcast is out now!
This week on That’s Debatable! hosts Tom and Ben are joined by Denise Fahmy, the arts sector professional who recently won a harassment claim against her ex-employer, Arts Council England (ACE), after colleagues targeted her due to her gender critical beliefs. It’s well worth a listen – the link to download the episode in full is here. And don’t forget to search for That’s Debatable! on your favourite podcasting app and hit ‘subscribe’ so you don’t miss next week’s episode.
Sharron Davies MBE book launch – full event video available now!
The FSU was delighted to host the launch event for British Olympic swimmer Sharron Davies MBE’s new book, Unfair Play: The Battle for Women’s Sport, in London last week, and the recording of the event is available in full on our YouTube channel (here).
Of all the issues thrown up by the rise of gender ideology, safety and fairness in women’s sport is probably the one that has grabbed most mainstream attention. And yet, too often the debate has been shut down, with those raising questions accused of ‘transphobia’.
As one of the most stalwart defenders of the integrity of women’s sports, Sharron has paid a heavy price for speaking out on this important topic. Back in 2019, with transgender athletes starting to appear on podiums in women’s events, Davies wrote a letter to the International Olympic Committee, signed by more than 60 British Olympic medallists and world-class athletes, calling for female sports to be confined to biological women, in the name of fairness.
She has since lost much of her TV and media work. “My phone stopped ringing,” she told the Telegraph earlier this year. “Charities I’d been associated with for 25 years disowned me. Agents I’d dealt with forever told me no companies wanted the ‘hassle’ of hiring me for events.”
During the FSU-organised launch event for the book, Sharron spoke in detail about the “vile” tactics deployed by censorious trans activists who “do anything and everything” to stop her from having her voice, including targeting her family, and “ring[ing] around every single job that you’ve got”, demanding that they stop working with you, and then carry on doing so until, in the end, most of those companies cave, simply because it’s the path of least resistance, and “they don’t want the hassle”. We’ve clipped those sections here and here.
A fierce and hugely courageous woman – the full video is an absolute must watch.