Article 10 -

Graham Norton and the Chamber of Chilling Effects

Last week, Graham Norton was asked in an interview about “cancel culture.” He was unequivocal:

“You read a lot of articles in papers, by people complaining about cancel culture. And you think, “in what world are you cancelled? I’m reading your article in a newspaper or you’re doing articles about how terrible it is to be cancelled, so you know – I think the word is the wrong word. I think the word should be “accountability.” You know John Cleese has been very public recently, complaining about this, and it must be very hard to be a man of a certain age who’s been able to say whatever he likes for years, and now suddenly there’s some accountability. You know, it’s free speech but not consequence free.”

The interviewer then asked him about JK Rowling, specifically referencing the “deluge of anger, rage and attempts at censorship which seem to me to be more than a middle-aged man not being able to say something he used to say in the days of empire.”

He was somewhat more nuanced about this, perhaps recognising – rightly – that whatever he said about cancel culture in respect of JK Rowling was going to be assumed to be a contribution to the debate on sex and gender:

“When I’m asked about it, I become part of this discussion, and all I’m painfully aware of is that my voice adds nothing to that discussion and I’m sort of embarrassed I’m drawn into it. And if you want to shine a light on those issues, talk to trans people, the parents of trans kids, doctors, psychiatrists, someone who can illuminate this in some way. As “bloke off the telly” your voice can be artificially amplified… and most of the time that’s a distraction, and it’s just it’s for clicks, for whatever, to put my name in a headline. “Graham Norton slams,” – “Graham Norton defends“ – “Graham Norton weighs in on” and actually Graham Norton shouldn’t be in your headline. If you want to talk about something then talk about the thing, you don’t need to attach a Kardashian or a whatever to a serious subject, the subject should be enough in itself. You know, it’s the Michael Gove thing about experts, we’ve got enough experts. No, please, can we have some MORE experts. Can we rustle up some f*cking experts and talk to them. Rather than ‘man in shiny pink suit.’”

Perhaps unsurprisingly, this second point was taken up with less vigour than the first. There has been a persistent analysis from genderists that women (and a few men) who are hounded online or in person for expressing feminist views are experiencing only “accountability” or “consequences,” no matter how grave the threats or how significant the involvement of state bodies (more on this later). This analyis causes understandable anger among those who have been on the receiving end of serious threats. JK Rowling was one of a number to make the point, causing the spotlight to swing back to Norton himself. In particular, his previous attitude towards vulnerable women attracted attention. Norton, now himself the victim of a Twitter pile-on – or “consequences” as he might put it – deleted his Twitter account.

Legal Feminist is in favour of free speech and deplores attacks on anyone for the lawful expression of their views. But it does rather illustrate the difficulty with the amplifying effect of social media on freedom of expression, and that brings us to Article 10 of the European Convention on Human Rights, as given effect in the UK by the Human Rights Act 1998. Article 10 protects freedom of expression, but not unfettered freedom of expression – the old chestnut that there is no freedom to shout ‘fire’ in a crowded theatre. It is one of the most detailed Articles and reads as follows:

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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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 argument propounded by Graham Norton is that if one person has the freedom to hold and express her opinion, another has an equal and opposite freedom to impose “consequences” in the form of her own expression of opinion. And where this means that people put forward impassioned arguments from diametrically opposing viewpoints, this is true. Where one person puts forward a well reasoned argument and another replies “lol r u stupid” it is also true. Where it fails is where “consequences” is used in the manner of a headteacher scolding an unruly class – where it means punishment, not disagreement – and where this has a dissuasive effect on others participating in a free exchange of views.

The European Court has long recognised the concept of the “chilling effect” in Article 10 cases. What this means is that where one person suffers serious adverse consequences of their otherwise lawful free speech, others will be dissuaded from following suit.

There are some examples of gender critical speech in which plainly the state has interfered, or where a classical “chilling effect” of state involvement can be seen in the form of criminal proceedings or the threat of it. An obvious example is that of “Harry the Owl,” aka Harry Miller of Fair Cop, who was expressly found by the High Court and the Court of Appeal to have encountered exactly that chilling effect when he was visited by a police officer to ‘check his thinking.’ The co-option of the state authorities, with the threat of prosecution or recording of a hate ‘incident,’ would undoubtedly have such an effect on others considering contributing similar thoughts to a discussion.

Typically, chilling effect cases are ones in which the state is involved or implicitly involved in the silencing of a particular view. Other cases aside from Miller which fall within the same category might include the prosecution of Kate Scottow (whose expression of opinion was held to be lawful speech within the meaning of Article 10) and the requirement that Maria McLachlan, herself a victim of a battery, must refer to her male assailant in court using a female pronoun.

Generally, human rights (save in particular circumstances which are not the focus of this blog) have a vertical, not a horizontal, effect – which means that it is the state prohibited from interfering with the rights of the individual, not individuals prohibited from interfering with one another’s rights. However, the state may have a ‘positive obligation’ to prevent interference with freedom of expression. There is precedent in the case of Fuentes Bobo v Spain 39293/98 that an Article 10 infringement may be found where an employee was dismissed for ‘offensive’ remarks. The Court held that the State has a positive obligation to protect the right of freedom of expression – which meant not just that the State must not interfere with the right to freedom of expression, but that it must actively use its powers to support it. (For more on positive obligations, p50 of the Handbook On Positive Obligations is instructive.)

In light of Fuentes-Bobo I think it is plainly arguable that the same must apply where the state has failed to take action against online vigilantes. If the state is indifferent to rape or death threats that amount to a criminal offence (malicious communications) and women who express an unpopular view recieve such threats, it is of little value to describe those threats as consequences. Pausing briefly to note that Graham Norton did at least try to distinguish between disagreement (“accountability”) and a deluge of threats and censorship (he swerved the question and moved onto whether any celebrity should contribute to the discussion), it is nevertheless true that women online DO receive these threats, and that the state seems unwilling to investigate or prosecute the people making them, or to take effective measures to compel social media providers to deal with them. If the ‘consequence’ to a well known individual contributing a gender critical view is a deluge of rape and death threats, the chilling effect on everyone else is obvious. That she may later be able to write about her experience is irrelevant: the chilling effect occurs when another woman, finger poised above her keyboard, hits delete instead of tweet.

At present, the chilling effect on gender critical speech is obvious. Prof. Stock and Maya Forstater lost their jobs. JK Rowling has received enough threats, she says, to paper her house. Harry Miller’s case expressly referenced the chilling effect. A number of women including Kate Scottow (convicted and overturned on appeal) and Caroline Farrow (as yet not convicted, but her critic(s) are working on it) have been prosecuted or threatened with prosecution. Genderists are reluctantly accepting that gender critical views are protected, but maintain that expressing them is forbidden (it is not).

But it is not just gender critical speech which is under threat – there are many views from Brexit to Scottish independence to abortion rights to hijabs on which there will be multiple, opposing views. We have a historically unique situation in which an individual’s ability to express a view has never been more capable of broadcast, and in which the most chilling effect no longer comes actively from the state, but from the moral permission granted to the most censorious and most threatening of the online witch-finders. The state must grapple with this, and soon. You do not have to agree with a viewpoint to recognise that it falls within the parameters of freedom of expression. And as Graham Norton has just discovered, “consequences” is a blandly poor descriptor of a chilling effect.

Pronouns: Compulsion and Controversy

BBC employees are being “encouraged” to put pronouns at the end of their emails and we look at the possible issues here. Is that a kindness that only a misanthrope could oppose, or is there more to it?

Compelled speech

The first issue is that of compelled speech. Pronouns are not neutral. The move towards declaration of pronouns presupposes that everyone “has pronouns”; which is to say that everyone has an inner gender identity, and being described by the pronouns he / him, she / her, they / them, zie / zem, or something else is an expression of that identity. It also suggests that there may be repercussions for failing to remember a colleague’s preferred pronouns.

This is a highly political position. At the moment, the law recognises two sexes (male and female) through s.212 Equality Act 2010, and that a person can change their legal sex from one to the other by operation of the GRA 2004. There is also established case law which recognises that a person’s gender can be central to their private life protected by Article 8. The law does not lay down that a) everyone has a gender or b) that gender is innate.

The concept of gender identity entered the legal lexicon with the Yogyakarta Principles. These Principles do not carry legal force, but have often been adopted as a convenient shorthand. They were drafted in response to global discrimination and persecution of LGBT people. The definition given of gender identity is this:

We can see two things from this: first, that it assumes that each person does have a deeply felt internal and individual experience of gender. Secondly, that it rather correlates to the Equality Act definition of gender reassignment, envisaging a process which may include medical modifications, rather than a simple declaration.

But the more commonly used definition in the UK is that provided by Stonewall through their training. You can see that Stonewall depart from the idea of reassignment altogether (it is described as “a term of contention” in their glossary). Here are their definitions of gender and of gender identity:

What does this mean? Three things: a) that everyone has an “innate” sense of gender; b) that “culturally determined” masculinity and femininity is innate to males and females; and c) that those who reject their culturally determined gender are at odds with their sex, while those who embrace it are aligned with their sex, and are “cis.”

This is a political, and controversial, perspective. There are many people, male and female, across the political spectrum, and across sexual orientations, who regard it as problematic. It is a particular issue for those women who reject culturally determined femininity as oppressive and sexist, and for whom the idea that it is innate to most women – and by extension, that for those to whom it is not innate are not fully women – is nothing more than reinforcement of harmful stereotypes.

It is from the belief that gender is innate that the drive to announce one’s pronouns stems, because pronouns then become an expression of individual gender rather than a convenient linguistic replacement for a proper noun.

Insisting that employees put pronouns into their signature therefore leaves women who do not accept innate gender theory in a dilemma. They must either comply, aligning themselves with a political position they disagree with; or else reveal their political views in the workplace, which carries a risk of adverse consequences. We know that the popularity of innate gender theory means that those who take the contrary view may be visited with vile abuse, reported to their regulator, complained about to their employer, or even fired – so a woman who opposes innate gender theory may nevertheless feel obliged to comply through fear of losing her employment or being socially ostracised.

Some will suggest that this is acceptable – that to reject the notion of innate gender is so repugnant that those who do so must expect to face adverse consequences. They may point to EJ Tayler’s judgment in Maya Forstater’s case that gender critical beliefs did not qualify as a protected characteristic under the Equality Act 2010 for that reason. There are two answers to that. The first is that a first instance employment tribunal judgment has no weight as precedent, and this particular judgment is under appeal, and seems likely to be overturned. The second is that there is a great difference between disciplining an employee or treating them adversely because they voluntarily express opinions that they know to be controversial on the one hand, and forcing employees to sign up in public with a political statement that they may find profoundly objectionable.

A belief that gender identity is innate may also be quasi-religious; the concept that each of us has an inner being, a soul, which is gendered, contained inside the mortal flesh which has a reproductive sex that may not match that gender. As the MP Layla Moran said, “I believe that women are women…. I see someone in their soul and as a person. I do not really care whether they have a male body.”

It has long been held that the freedom to believe is matched by the freedom to disbelieve, not just for outright atheists but also ‘sceptics and the unconcerned;’ as per §31 of Kokkinakis v Greece (1994) 17 EHRR 397:

“As enshrined in article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”

Freedom to disbelieve in the context of political, not just religious, scepticism was considered in RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2012] UKSC 38. The Court commented that “As regards the point of principle, it is the badge of a truly democratic society that individuals should be free not to hold opinions. They should not be required to hold any particular religious or political beliefs…. One of the hallmarks of totalitarian regimes is their insistence on controlling people’s thoughts as well as their behaviours.” The Appellants, who were politically indifferent, were protected as they could not be expected to assert loyalty to the Zanu-PF regime in Zimbabwe against their true views.

RT (Zimbabwe) was cited in the more recent case of Lee v Ashers Baking Company Ltd & Ors (Northern Ireland) (Rev 1) [2018] UKSC 49 (often described as “the gay cake case.”) The bakery could not be compelled to ice a message “with which they profoundly disagreed” onto a cake. It is difficult to see how an employee could be compelled to align themselves with a perspective with which they profoundly disagree in their email signature.

Sex Discrimination

The next issue is whether a female employee encouraged or compelled to declare pronouns could legitimately argue that this discriminates against her, directly or indirectly, because of her sex.

We know that sexism in the workplace is far from over. Conscious or unconscious bias operates against women. This example, from 2017, illustrates the point: when Nicole and Martin swapped email signatures, they learned that “Nicole” would be perceived as far less competent than “Martin” by clients. Without that sexism, if Nicole truly had been less competent, she would still have been regarded as such when signing off as Martin – and yet that is not what happened.

In 2019, the Royal Society of Chemistry undertook an analysis of gender bias publishing in the chemical sciences. It recognised that biases were “subtle” and could be “inadvertent.” Women were invited to review less often, their work was more harshly received, their initial submissions more frequently rejected. These “small biases” led to a “significant cumulative effect.”

The RSC are not the only organisation to have done such research. Others have found similar results, and of course there are numerous articles spanning the last decade or more which find that CVs with a female name get poorer results than the same CV carrying a male name. CV writing services recommend against including gender on the CV – a practice which used to be common and is now recognised as archaic. Race is also a factor – although for now at least, nobody is suggesting we declare our race at the bottom of email signatures.

And it is not just the recipient of the email who may be unconsciously biased against a female sender. The female sender herself may be subject to ‘stereotype threat.’ This is where a person is reminded of membership of their group and then under-performs; for example, women who were told that women do worse than men in maths tests then really did perform significantly worse in a maths test than women who were told there was no difference in performance (Cordelia Fine, Delusions of Gender, p.32-33). Even being reminded of one’s own sex at the beginning of a test can have the same effect (ibid, p32).

It would seem that women who are compelled to declare female pronouns in their signatures may be vulnerable to stereotype threat and also to unconscious bias on the part of the recipient of the email, thereby entrenching those biases further.

This does not mean that any woman whose workplace initiates a pronoun policy has an automatic, unassailable, claim. An employer might defend the claim by arguing that they are aware of the negative impact on women but that it is justified as a proportionate means of achieving its legitimate aim of trying to create an inclusive work environment. Argument and evidence would then centre on balancing the potential harms and benefits of the policy. It would be relevant, for example, if the employer was already struggling with recruitment and retention of women, or if there were a male / female disparity in sales commission. The ‘compelled speech’ aspect of the policy would also be relevant to this balancing exercise.

Summary

It should go without saying that if an employee is beginning gender reassignment and wishes their colleagues to use a different pronoun for them, they should be supported to do so. There are rightly prohibitions on victimisation and harassment on the grounds of gender reassignment. That person may wish to send an email round-robin with their news, or may wish to have their pronouns in their email; an employer should not prevent that. However, when the BBC’s guidance suggested that all employees should put pronouns in their signature, and said “It’s really simple,” that was, we suggest, premature, and may be experienced as coercive. And when they speak of “creating a culture where everyone feels comfortable introducing themselves with pronouns” they should also consider whether they might be inadvertently creating a culture where those with the she/her pronouns experience discrimination as a result of their sex.