Gender views: Debate does not lend itself to generalised case study, says BSB
The Bar Standards Board (BSB) has dropped a case study from its revised social media guidance concerning gender-critical views after it was accused of promoting a ‘gender ideology’.
But the regulator stressed that this did not mean it would “never be interested in barristers’ conduct involving the gender debate, the expression of philosophical beliefs, or deliberately misgendering a transgender person”.
Last week’s meeting of the full BSB board considered revisions to guidance on social media issued last year, as well as to its guidance on the regulation of non-professional conduct, or conduct in a barrister’s private life, following a consultation on both.
The idea was to clarify the BSB’s regulatory remit, not expand it, the background papers said.
It received 26 responses and a case study about a barrister who frequently tweeted about their gender-critical views using their personal Twitter account “generated a lot of criticism and feedback”.
The case study said: “A transgender woman (who openly states their transgender status in their Twitter profile) responded to one of the barrister’s tweets, challenging their views. The barrister then sent several tweets directed at the transgender woman, in which the barrister deliberately misgendered and threatened them.
“In this case, the barrister’s conduct in specifically targeting the transgender woman, threatening, and intentionally misgendering them are likely to be considered seriously offensive and discriminatory.”
Five responses argued that raising ‘misgendering’ as an issue “showed that the BSB itself was promoting a ‘gender ideology’ which they either saw as false or something the BSB should avoid taking a stance on”, according to a draft response paper to the consultation put before the board.
This said the BSB was “sensitive to the strength of feeling on both sides of the gender debate”.
It went on: “We are also familiar with the emerging case law on the issue of ‘gender-critical’ views and the fact that such views are capable of amounting to a protected philosophical belief under the EqA [Equality Act] (see Forstater and Bailey).
“We are, however, also mindful of the rights of transgender people not to be discriminated against, harassed or victimised on the basis of gender reassignment, which is also protected under the EqA.
“Further, the BSB’s public sector equality duty includes the need to ‘foster good relations between persons who share a relevant protected characteristic and persons who do not share it’.”
Many respondents cited the decision in Forstater, which warned that misgendering a transgender person, gratuitously or otherwise, may amount to unlawful harassment in arenas covered by the EqA.
The draft paper said whether such conduct would be in breach of the BSB Handbook “will depend on an intricate analysis of the facts of the case which, we now recognise, does not lend itself well to a case study that is designed to provide guidance based on generalities.”
The BSB noted that the case law “recognises an important distinction between the protection afforded to the belief itself and the manifestation of that belief”.
“If a barrister manifests a belief in a way that is particularly objectionable (such as through the deployment of discriminatory slurs or wholly unnecessary and abusive behaviour), the BSB may be interested.”
The executive said the decision to remove the case study “does not mean that the BSB will never be interested in barristers’ conduct involving the gender debate, the expression of philosophical beliefs, or deliberately misgendering a transgender person”.
The revised social media guidance clarifies that the BSB is more likely to be interested in the manner in which a barrister expresses themselves on social media, as opposed to the substance of their views or opinions, “however unpopular they may be”.
It also acknowledges that other human rights – beyond freedom of expression and the right to private life – may be engaged in certain cases, such as the right to freedom of thought, conscience and religion.
However, there may be cases where the views or opinions that a barrister expresses may justify regulatory action, such as posting “dishonest or discriminatory” material.
Other changes to the guidance say that posts or comments visible only to a limited audience may nevertheless amount to a potential breach because of the risk they could resurface or be shared more widely than intended.
Further, sharing communications or hyperlinks to content posted by others which is seriously offensive, discriminatory, harassing, threatening or bullying, “without making it clear that you disagree with the content”, could be a breach as it may be taken as an endorsement.
Revisions to the draft guidance on conduct outside of practice include clarifying that it may also apply to a barrister’s conduct which occurs in a professional capacity other than as a barrister, such as an MP or academic.
The BSB said it would ask two questions when deciding whether it should take an interest in non-professional conduct. The first was whether the conduct was criminal in nature.
The second was if the conduct was “sufficiently relevant or connected to the practice or standing of the profession such that: it is likely to diminish public trust and confidence in the barrister or the profession; and/or it could reasonably be seen by the public to undermine the barrister’s honesty, integrity or independence”.
The BSB said the final guidance “strikes the right balance between the proper regulation of the profession and the rights of individual barristers”.
The date when both pieces of guidance will come into force has not yet been confirmed.
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