Is there a right not to be offended?
Many will have spluttered over their cornflakes - or as I think the late Rabbi Lionel Blue once put it, collapsed into their kippers - to hear Baroness Falkner, Chair of the Equalities and Human Rights Commission (EHRC), declare on Radio 4's Today programme that, "We all have a right not to be offended." The background was a ruling by the Employment Appeal Tribunal (EAT) in the Maya Forstater case, overturning an earlier judgment that belief in the immutability of people's biological sex was "not worthy of respect in a democratic society" and therefore unprotected under Article 9 of the European Convention on Human Rights, which guarantees the right to freedom of thought, conscience and religion. The EHRC had supported Forstater's successful appeal to the EAT, hence the Baroness' appearance on the Today programme to comment on the outcome. After the broadcast, a tweet emerged from the EHCR saying that the Baroness's statement on the right not to be offended was in fact a slip of the tongue - she had meant to say the direct opposite. So, relief all round: the Equalities and Human Rights Commission does understand human rights after all. It is easy to pardon Baroness Falkner's mistake, given her obvious discomfort when trying to negotiate a way through what has become a semantic, cultural and legal minefield. Interestingly, the Today interviewer did not challenge or apparently notice the Baroness's understandable error, despite the presiding genius of George Orwell - in the form of his statue and its inscription outside BBC headquarters - reminding all who work there that, "If liberty means anything at all, it means the right to tell people what they do not want to hear." Unfortunately, though, the view that "there is a right not to be offended" is becoming rather common, despite the unambiguous position in international human rights law as summed up by the UN's 2013 Rabat Plan of Action: "[T]he right to freedom of religion or belief, as enshrined in relevant international legal standards, does not include the right to have a religion or a belief that is free from criticism or ridicule" (para. 19). Thursday's EAT judgement did in fact quote a ruling against the UK by the European Court of Human Rights back in 1976 which made clear that, "Freedom of expression ... 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'" (para. 49). However, this fundamental principle has yet to trickle down into all areas of our own democratic society. The Commission was forced last year to retract legally incorrect advice about transgender people's right to access single-sex services. ... I'm just here to give you some words of advice". Just the month before, Merseyside Police were persuaded to admit that their "chilling" billboard poster announcing that "being offensive is an offence" was actually incorrect. Then there is last year's High Court judicial review case brought by Harry Miller, which stemmed from a complaint to the police about his gender critical tweets, and the claim that these were offensive and transphobic, and (apparently without irony) that Mr Miller was a "bigot". The police recorded the tweets as a 'hate incident' (paras. 58-69) and Mr Miller said that he was then visited at his workplace by an officer declaring, "I need to check your thinking" (88). This officer testified that he believed he was "protecting [the complainant's] right not to be offended" (174). Yet, as the judge noted, "It is striking that no-where in their evidence did [the complainant or police officer] specifically identify which tweets amounted to hate speech, or why. It is just asserted that they did, without further discussion" (281). The complaint had, in the judge's view, been expressed in extreme terms; indeed, it was "at the outer margins of rationality" (280, 282). He ruled that the police had "no need ... to visit the Claimant's workplace and then warn him about the danger of being prosecuted if he escalated" (a possibility that was "not remotely tenable"). This police action was unlawful and had effectively granted the complainant a "heckler's veto" (261, 268, 278, 283-286). We must be wary of trespassing into the hostile territory of academia, where nowadays it appears that survival can sometimes be dependent on the self-censorship of any unfashionably dissenting views - although one student bravely refused to self-censor and was investigated by her university, only for them to finally admit that she had done nothing wrong. It's also worth mentioning the Liberal Democrat party's recently adopted definition of transphobia, stated to be "key to supporting the Party's disciplinary processes", which designates as culpable "comments such as 'I'm too old to understand all this'". Even expressions of bafflement can now be punishable as offensive. It seems there is a definite need for some basic human rights literacy on the part of those, including employers and the police, who have the power to affect our lives and freedoms. We rely on the Equality and Human Rights Commission to explain and continually reinforce the distinction between the freedom to express opinions on the one hand, and discrimination, harassment or incitement to hatred on the other. If they can also have the backing of legislation in their task, so much the better. Some aspects of this crucial distinction have already been expressly codified in amendments made to the Public Order Act 1986, to ensure that the critical discussion of religion and same sex relationships or marriage cannot be treated as hate crime. The case for an equivalent amendment covering discussion of transgender issues is surely becoming ever more difficult to resist.