Lib Dems Heed Own Advice

Doubts about the legality of the Liberal Democrat’s “Definition of Transphobia” (published in September 2020, but never approved by Conference) have finally been put to rest by the publication of a second set of legal advice by a KC.

Earlier this year, the Lib Dems commissioned Guy Vassall-Adams KC to provide a legal opinion on the lawfulness of the Definition of Transphobia. When that opinion remained unavailable to the membership, a second opinion from Karon Monaghan KC was sought by a member of the Federal Board and published by us here.

The Vassall-Adams advice is now available, and can be seen here, with supplementary advice provided more recently here.

While Karon Monaghan was dismissed by party trans activists who accused her (wrongly) of being biased in favour of the gender critical position, the two opinions are not in conflict. In fact the opposite is true. Vassal-Adams writes: I have been asked to identify any point of disagreement or significant differences that may be relevant to the Party's decisions on these issues. For the avoidance of doubt, I agree with Ms Monaghan's analysis and I cannot discern any significant difference between her advice and my own.

The conclusion of both sets of advice is that the original Definition of Transphobia is inconsistent with the right to hold gender-critical views under the Equality Act and Human Rights Act. If the Party were to take disciplinary action based on these examples it would be engaging in unlawful discrimination against persons with gender-critical views.

Vassall-Adams emphasises the highly protected nature of freedom of political speech, and reminds us that trans activism is often characterised by the suppression of dissenting voices:

It is a feature of this debate that trans rights proponents will readily label as transphobic any speech which causes them offence. Gender critical views such as ‘trans women aren't women’ are offensive to trans people, but freedom of expression includes the right to express views that other people find offensive.

The original Definition of Transphobia was drafted with the intention of expediting the disciplinary process for party members accused of being transphobic. To our knowledge it has only ever been practically applied in this manner once (Case 64, which became Case 30 on appeal and was subsequently overturned - the Federal Appeal Panel’s decision is quite something and well worth a read).

Regarding that case, Guy Vassall-Adams comments, In my view, these postings did not warrant any disciplinary sanction, let alone the extreme and draconian measure of banning the respondent from assuming any leadership role in the Party for life.

He highlights the tensions inherent in the hypothetical examples of “transphobia” listed in the Definition. In particular he notes the example that appears to claim that it would be transphobic to support or apply the single sex exceptions in the Equality Act. He points out, Parliament has legislated for exceptions to the Equality Act that make it lawful to discriminate against transsexual people in relation to single-sex services. 

It is difficult to see how conduct that is lawful under the Equality Act could properly be the subject of disciplinary action by a political party. 

If the party disciplined a member for being part of a single-sex service that was lawfully provided, that would in all likelihood amount to unlawful discrimination.

He makes a similar point regarding access to healthcare. Why should someone not be allowed to argue that cancer services or long-COVID services should have priority over funding for transition-related medical treatment? 

I am not expressing a view on these matters, but to deem all such speech transphobic and to make it the subject of disciplinary action is to forget that in a free society people have the right to express themselves freely.

One of the arguments made by trans activists for banishing gender critical members is that their views are incompatible with the party’s fundamental values. However the Liberal Democrat Constitution says nothing specifically about how “trans rights” should be defined or interpreted or that they should be prioritised over the rights of, say, women, children or LGB people. 

I am not aware of any statement of the "fundamental values and objectives of the Party" except for the preamble to the Federal Constitution, which is couched in very general language.

Vassal Adams, clearly on a roll by this point, goes even further, suggesting that in fact it is the Definition of Transphobia itself that is at odds with the party’s values:

The Definition of Transophobia is in my view inconsistent with the Party's values, as the Preamble to the Federal Constitution asserts that ‘We will at all times defend the right to speak, write, worship, associate and vote freely’

The Definition has recently undergone a rewrite, following this advice and that of Karon Monaghan. We did a write-up here. As we note, it is still far from perfect, but it is at least evidence that the party is taking the issue seriously and is trying to operate within the law.

Yet, astonishingly, despite two sets of legal advice confirming the Definition of Transphobia was not only unlawful, but also illiberal and clearly at odds with the party's values, our resident trans activists are calling for a third legal opinion and even demanding an apology from the party leadership for simply having applied due diligence.

The party is now having to spend time, money and resources picking up the pieces brought about by a failure of leadership. Despite there never being any evidence of a “transphobia” problem in the Lib Dems, leaders invited trans activists to write the parameters of permitted speech about sex and gender identity within the party. Anyone with a passing familiarity with this debate could have predicted that their conclusion would be that everything is transphobic, that the party should never countenance any debate at all on this matter and that holders of unorthodox (for unorthodox read ‘entirely ordinary’) views should be expelled. Did they expect everyone to just go along with this?

We urge the incoming Federal Board to learn from this costly, time-consuming and highly damaging exercise. Understand that the trans activists’ appetite for ever more censorious interventions will never be sated. Find your spines. Hold the line for sanity. 

You have been taken for a ride by the trans train. Now is the time to disembark, before it’s too late.