by Les May
I
WROTE the article italicised below in October last
year. I thought that the topic and the approach would make it
suitable for Peace News. It would not be correct to say that
the editor refused to publish it, he simply did not acknowledge it.
Given
the recent ruling by Mr
Justice Julian Knowles
in a case brought by
Harry Miller.
I have included it below this link to
a Guardian
article. In
his ruling Knowles
stressed 'the
vital importance of free speech”,
saying it included “not
only the inoffensive, but the irritating, the contentious, the
eccentric, the heretical, the unwelcome and the provocative.'
In
one of this year’s Reith lectures Jonathan Sumption, who between
2012 and 2018 sat as a member of the Supreme Court, raised the
question of whether the law may be returning to its earlier role as a
means of enforcing social conformity. As instances of how it had
exercised this function in the past he cited the use of the law to
enforce a single pattern of religious worship in the 17th
century and the continued discrimination between denominations into
the 19th century.
To
act as a mechanism for social conformity it is not necessary that
this be exercised by the state, only that the state passes laws which
allow individuals to use the law in a way which forces others to
conform to their views.
In
October of last year a case came before the Supreme Court in which
a Gareth Lee had placed an order for a cake decorated with the words
‘Support
Gay Marriage’.
The owners of the bakery, Daniel and Amy McArthur declined the order
because as Christians they were being expected to express a view that
they disagreed with. Lee argued that they were discriminating
against him because he is a homosexual. Two lower courts had
accepted this argument
but the Supreme Court did not.
The
president of the Court Lady Hale said:
‘It is deeply humiliating
to deny someone a service because of that person’s race, gender,
disability, sexual orientation, religion or belief’.
‘But that is not what
happened in this case. As to Mr Lee’s claim based on sexual
discrimination, the bakers did not refuse to fulfil his order because
of his sexual orientation’.
The
court accepted the argument of the McArthur’s lawyer that forcing
them to bake the cake would be forcing them to go against their
religious beliefs.
Lee was trying to use the
Courts to force the McArthur’s to accept his view of the world. His
mistake was to argue that the couple were being ‘homophobic’ when
they simply had a different view about the world. A view to which he
took exception.
But, as I have argued
previously in Peace News, Lee’s approach is far from uncommon.
Increasingly we see people
who express a view which the listener or reader does not like being
labelled as antisemitic, homophobic, islamophobic, mysoginistic or
some similar pejorative epithet.
The court’s ruling means
that provided we do not discriminate against someone because of what
they ARE, we will not find ourselves in court for expressing our
dissent from the views they hold. In other words such an expression
of dissent is not ‘judiciable’, to use a word which has recently
been rediscovered.
I would not expect to find it
a matter for a court to consider if I decline to call someone who
says they are transgender, ‘she’ or ‘her’, if I sincerely
believe them to be a man. If however referring to such a person as
‘he’ or ‘him’ becomes seen as ‘hate speech’, as some
people wish it to be, then it could be claimed that this is a matter
for the courts.
Commenting
on the ruling in the wedding cake case the chairman of the Equality
and Human Rights Commission said:
‘Freedom of expression –
including the right not to express a view – and freedom of belief
are rightfully protected in a democratic society and this case
demonstrates the need for a more nuanced debate about how we balance
competing rights’.
Debate, nuanced or
otherwise, has been noticeably absent from anything surrounding what
have become known as ‘trans’ issues. Are claims of being cis,
trans, non-binary and gender-fluid simply ephemeral affectations as
some people see them or do they go to the core of an individual’s
being and identity? Unless we are willing to discuss the question we
will never resolve the matter.
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