The expanding size and scope of the state since 1997 has been a catastrophe. Since Tony Blair took office, key institutions have been infected by a nightmarish ideological hybrid of legal positivism, Leftist identitarianism, and European-style managerialism. Our imperfectly applied but long-standing right to freedom of speech is a consummate example.

Freedom of speech, regardless of content, has never been strongly protected in the UK compared to the US. Nevertheless, New Labour legislation curtailing “hateful”, “offensive”, “distressing”, and “inciting” speech has seriously undermined free speech almost to the point of obsolescence. Vaguely worded speech restrictions like those contained in the Communications Act 2003, Religious and Racial Hatred Act 2006, or Criminal Justice and Immigration Act 2008, have been broadly interpreted by law enforcement. 

Laws intended to prohibit the most unpleasant forms of abuse and hatred have, unsurprisingly, been used as tools to censor political and religious dissent. Those laws, combined with our increasingly intolerant culture and the capture of public (and often private) institutions by identity politics, have turned coercive state power squarely against those who dissent against the elite consensus on cultural issues.

This seems destined to get worse before it gets better

This seems destined to get worse before it gets better. As the trans issue dominates the culture war discourse, it has become clear that the progressive wing of the LGBTQ+ movement no longer favours a struggle for equality, liberty, and dignity —- but seeks to wage a war of domination. 

A new paper by my IEA colleague Marc Glendening paints a grim picture of how the trans movement intends to do just that. Organisations like Mermaids and Stonewall have long called for expanded criminalisation of hate speech. Putting discrimination against trans people on a firmer legal footing akin to that of race and sexuality seems reasonable in the abstract. Trans people ought to have equal rights and dignity before the law. But we know that the legal precedents set in those areas by our vague and overzealous speech laws would likely have catastrophic consequences for lawful debate on this important issue.

Laws criminalising hate speech based on sexuality have already been used to target those who preach sincerely held theological objections to gay sex and relationships. Gender critical figures who refuse to affirm trans identity or raise concerns about the importance of biological sex would inevitably face the same risks. Indeed, proposals to impose a sweeping ban on conversion therapy may put counsellors or doctors in legal jeopardy if they provide non-affirmative care to people suffering from gender dysphoria.

Or take the case of Chelsea Russell, a teenager in Liverpool who was successfully prosecuted for a “grossly offensive” post in which she quoted a song that contained the n-word. Could those who wish to recite Graham Linehan’s sketches be next?

Unpalatable as some may find it, the right to abuse, satirise, and robustly exchange opinions are vital components of rigorous democratic debate; and wherever you stand on the substance of the trans issue, it can’t be denied that there are debates to be had about the nature of gender, single-sex spaces, and women’s sport, to name but a few.

While I agree with Marc Glendening on the moral and practical case for freedom of speech and expression, we do disagree on the substance of the trans issue itself. I do not believe that gender and sex are necessarily the same. Trans people suffer legal and cultural marginalisation because of their identity. In many ways, I want the trans movement to succeed.

It is partly because of that perspective that the progressive trans activists’ attempt to shut down speech concerns me. Not only does it deny people their right to peacefully speak and shut down necessary debate, but it also harms the trans movement in the long run. True acceptance can never come down the barrel of a gun. Using state coercion to silence your opponents only serves to radicalise them and signal to those on the fence that your movement is one that seeks legal privilege rather than equality. 

Over the last decade, activists have betrayed the trans community through almost entirely unnecessary politicisation.This has significantly undermined social acceptance for a community in which most people just want to be treated with respect and left alone.

More importantly, using the state to achieve social goals almost always creates a zero sum game. When disagreements are litigated in the political arena, one side must win and one side must lose — there can only be a one-size-fits-all solution. For the most part, this has worked in the political left’s favour. As equality laws and speech codes have expanded, they have worked to impose leftist definitions of power and violence onto those of us who disagree. The recent dispute over Kemi Badenoch’s attempt to amend the Equality Act 2010 has exposed how government power can take away just as much as it can give.

The right approach, for both liberals and conservatives who oppose greater state interference in speech, is to get the government out of the way — guarantee legal equality to all but grant legal privilege to none. That means repealing hate speech laws that privilege some people’s right to take offence over other individual’s right to peacefully speak. It means repealing equality legislation that imposes rules from the top down, prioritising some groups over others for every office, public-facing business, and service provider throughout the country.

Contrary to what “serious sensible” policymakers will tell you, rights rarely need to be “balanced” against each other

Contrary to what “serious sensible” policymakers will tell you, rights rarely need to be “balanced” against each other or granted to one group at the expense of another. Each person should be able to speak as they wish while tolerating others’ right to do the same. Owners should set the rules on their own property about who can use what toilets, and organisers should be free to determine who can and can’t run in which races. Trans people should be entirely free to identify with a different gender to the sex they were assigned at birth; while critics should be entirely free to reject that identity and any associated policies.

This vision is one where everyone’s rights are protected equally. It would create a melting pot of experimentation which would tell us how best to deal with certain conflicts created by trans identities. Crucially, it would ensure that minority groups and dissenters were always protected from having views imposed on them from the top down. Whether conservatives, liberals, or leftists have the upper hand in politics or culture, it suits us all to stop cultural divides turning into wars of all against all.

This stands in stark contrast to the ethos of the progressive LGBTQ+ movement — their goal seems to be total victory and suppression of opposition, not true tolerance and equality.