Labour’s crisis; why the expulsions divide Jewish opinion and fail to challenge racism


Labour’s antisemitism crisis may feel like yesterday’s news, but the issue is about to return. Next month will see the anniversary of Jeremy Corbyn’s suspension from Labour membership (later reduced, to removal of the whip, a process intended to make it impossible for him to stand as a Labour candidate in the next general election). In July, the party advertised 50 “case handler” positions to work through its backlog of unresolved membership complaints. These staff members are to be sourced thorough an agency and on temporary contracts and are expected to recommend a large number of expulsions. While, undoubtedly, there will be many Jewish members of the party who welcome this news – there will also be a number who view it with fear, worrying that they will be among those being investigated.

To understand both reactions we need to recall the events which accompanied Jeremy Corbyn’s victory in the 2015 leadership elections. After 2015, there was an increase in openly anti-Jewish language used by supporters, especially online. Labour Candidates for Parliament shared posts speaking of “Zionist Masters”, or spoke of Jewish MPs as having “Zionist sympathies”. One candidate for election as a local councillor reposted material on social media which referred to the Holocaust as a “hoax”. Parties need to have disciplinary processes; left-wing parties are entitled to expel members who discredit their own organisations.

However, bound up with this process has been something else – a dynamic in which a mere taking of sides against the party’s present leadership has become grounds for investigation. To say, for example, that several allegations of antisemitism were misplaced or exaggerated became itself a ground for investigation.

By the end of 2019, 220 members of the Labour Party had been investigated for antisemitism. The pro-Corbyn group Jewish Voice for Labour reported that 25 of those investigated by that stage, or just less than one in eight, were Jews. All of this 25, we may assume, were anti-Zionist Jews. But Jews only made up one in every 250 people living in Britain. Assuming that the Jewish proportion of party membership was the same as the Jewish proportion of British society, it would follow that a Jewish member of the party was 30 times more likely to be investigated by Labour than a non-Jew.

This dynamic is one which lawyers term “indirect discrimination”. In an of itself, it does not mean a process unfair or illegal. But the diffeerence of treatment requires justification, with a heavy burden of the discriminator to justify what they are doing.

The party would say that this disparity is not caused by its officers. They do not search out Jewish members; they focus only on complaints. If it is true that Jews are more prone to express themselves in offensive terms about Israeli or Jewish politicians than other members of the party – it is their own fault if they are investigated.

Its critics respond that the fault is with their party. Labour has increasingly seen its role as being to forestall any criticisms of Israeli policy, and to drive out Jewish voices which reject majoritarian Jewish opinions of Labour’s crisis. But Israeli policy towards Palestine is condemned in many places, not least in Israel and by Jews. The point where Israeli left-wing opinions meets British left-wing opinion – among Jewish members of the Labour Party – is where you would expect criticisms of Israel to be made.

The split nature of Jewish opinion under Corbyn was reflected in the existence of two rival groups, the Jewish Labour Movement (JLM), an organisation of between 1,000 and 2,000 people, many of whom were critical of the Corbyn leadership, and Jewish Voice for Labour (JVL), a body founded in 2017 to support Corbyn and which had around 400 Jewish members. Often members of the former organisation will point to status as an approved affiliate of the Labour Party (unlike JVL), their much larger support among Jewish circles, and say that they are the largest body of Jewish opinion within Labour. They are the majority, and they alone can stand as representative of Jewish opinion as a whole.

JVL was widely cited in the media, and treated as the representative body of pro-Corbyn Jewish opinion within the party. The split however went deeper than just JLM against JVL.

There were large numbers of pro-Corbyn Jews who steered clear of Jewish Voice for Labour, and several played prominent roles within the party. Probably the most visible Jewish figure within Labour’s crisis was Jon Lansman, founder of the pro-Corbyn campaign group Momentum. Lansman was interviewed in Jewish newspapers, spoke at Jewish cultural events, and supported the exclusion of individuals whose behaviour had crossed the line. As a longstanding Jewish socialist you might have expected Lansman to work with JVL; he did not. Rather, he accused that group of denying Labour’s difficulties and antagonising Jewish members The effect of the crisis in other was not merely to polarise Jewish opinion but also to deepen divisions within and splinter the pro-Corbyn left.

It is often said that all the offensive behaviour came from Labour’s left. But this assumption better reflects press commentary on the crisis than the actual and rancorous debate we have seen in Britain over the past five years. In 2015-9, the children’s author Michael Rosen spoke up often for Jeremy Corbyn. “To say these things has invited Jews and non-Jews on Twitter to call me a ‘kapo’, a ‘used Jew’ … someone who ‘dons the cloak of Jewishness’ … one of the ‘useful Jewish idiots’ [and] ‘a cheerleader for Soros’.” Rosen named the people who had criticised him, who included broadcasters and high-profile print journalists. Seemingly, none of the individuals named by him have ever been investigated by Labour.

Supporters of the leadership might accept that Rosen’s treatment was unjustifiable. They insist however that we need to have a sense of the crisis as a whole, inside which the majority of abusive language has come from Corbyn supporters. In 2016, one Jewish MP Ruth Smeeth was challenged at a press conference launching a Labour report on anti-Semitism. After that incident, Smeeth received 25,000 items of hate mail. And this was just a single instance, early in the crisis. Other Jewish MPs, including Luciana Berger, who was blamed by much of the left for the story’s return to the headlines in 2018, was treated even worse.

For the party’s present leadership, the way to restore Jewish confidence in Labour has been to inform the press that it is carrying out the maximum number of expulsions, in order to prove that the phenomenon of antisemitism has been silenced, and that anti-Jewish racists have been placed outside the Labour Party where they cannot do any harm.

Yet if you read the paperwork generated by Labour Party complaints, a different picture emerges. The people subject to investigation are suspended for months and sometimes years, and are subject to shifting allegations as their social media comments are searched often far into the past. No-one properly explains to the members why their behaviour was offensive.

Investigators decline to give any consideration to change. This is, arguably, the most egregious fault with the process. Those who constructed it have no idea of using investigation as a way of changing how people think. If we compare investigations to the legal processes which are closest to it, in them, judges ask repeatedly is a person accused of wrongdoing apologetic for what they said or did? Do they grasp how their words were offensive? Can they give any sort of undertaking they will not be repeated?

Inside Labour, these questions are never asked. Even to suggest that they should be is seen as a sign of wavering in the face of the more important task of proving to the media Labour’s commitment to dealing with the issue at last.

While the problems within Labour are not reducible to the persistence of prejudice in wider British society, they do to some extent reflect it. According to polls conducted in 2014, one in ten people here would be unhappy if a relative married a Jewish person, and one in six believe that Jews have too much power in the media. Those figures would that tens or perhaps hundreds of thousands of Labour members held at least some anti-Jewish views.

Everyone agrees that members should be educated; but such education as has been provided has been defensive, seemingly planned and certainly received along existing factional lines with the focus always on providing boundaries rather than explaining them.

Challenging racism on the scale required is going to require a more active process of explaining antisemitism and encouraging people in all parts of the party to speak out against it than the mere recruitment of 50 temporary case handlers. And it isn’t something which the leadership shows any desire or ability to do.

If you enjoyed this piece, it reflects the arguments of my book, Labour’s Antisemitism Crisis What the Left Got Wrong and How to Learn From It, which was published by Routledge in August.

On socialists and Jews; or, how to turn down the tension


The news that Labour has been recruiting fifty temporary agency workers to address its backlog of complaints about members is likely to fill many members of that party with dread. The primary targets for investigation are likely to include not just members of the left-wing factions now excluded from membership by Labour’s National Executive, but also office-holders who previously allowed their constituency to discuss motions in support of Jeremy Corbyn.

Some complaints will be investigated under Labour’s antisemitism policy which means, no doubt, that several instances of unmistakeably racist conduct will be punished. The next few months will also witness, however, a ratcheting up of the pressure on Labour’s Jewish members, including above all anti-Zionist Jews.

For example, in 2018, Diana Neslen posted on Facebook that the Holocaust had not merely led to the creation of Israel, it had also seen the destruction of a different Jewish culture, which had rejected the nationalism of that country. “All lives are worthy and since the Israelis learnt the wrong lesson their baubles no longer have any currency.” She was investigated and received a letter from the party, telling her, “These comments have caused offence.”

Stephen Solley, a former chair of the Bar Human Rights Committee, responded to a campaign by a member of Jewish Labour Movement asking for people to vote for her as a Jew and someone who “face[s] antisemitism every day”. Solley believed that her words were hyperbolic. He wrote back, “The Jewish Labour Movement is, in my opinion, a force for ill and something of a con in that it is destructive of socialism. It is a pro-Israel, anti-Palestine group.” Complaints were made to his chambers, the Bar Standards Board, and the Labour Party. Cleared by the first two, he remained suspended from the Party ten months later.

Naomi Wimborne-Idrissi was accused of telling a meeting of her Chingford Constituency Labour Party that “The cynical manipulation of Jewish fears and concerns is unforgivable and undermines all our work against racism of all kinds.”Many other examples could be given. By the end of 2019, some 220 members of the Labour Party had been investigated for antisemitism.

According to David Rosenberg of Jewish Voice for Labour (which had acted as the main defence campaign for those suspended), at least 25 of those investigated by that stage, or one in eight, were Jews. That is a significantly higher proportion of that party than Jews constitute within Britain as a whole.

But instead of using this post to tell a familiar story of left-wing victimhood, which may be psychologically gratifying, but wouldn’t change anything, I’m more interested in what the Labour left could have done differently.

I am focussing on the Corbyn left because this is my part of the movement. I could give any advice you like to Keir Starmer or Stephen Pollard but they won’t listen.

In thinking about what we should have done I am not imagining that anti-Corbyn commentators were serious / intelligent / willing to play by the rules or stick rigorously in the truth. (For many of them, especially those who covered the story for the tabloids, it appears to have been quite the opposite). My point is rather that in a political battle where the left was always likely to be on the defensive, what was the best that could have been done, or more to the point, what was the best that was actually done.

In particular I want to remind friends of two occasions when the hostility between Labour’s socialist and socialist democratic Jewish supporters was diminished – when people broke through what has too often seemed an unresolvable conflict between socialists and Jews. This happened at several points in 2015-19, principally when socialists found a way of talking of mainstream Jewish opinion as if it was something not to be denounced but courted.

My examples derive from events in January 2016 and in April 2018. In the first of them, Jon Lansman, a prominent Jewish supporter of the Corbyn project, made an attempt at explaining the politics of the new leader to readers of the Jewish Chronicle.

Jon Lansman had come into left politics through his rejection of antisemitism and had been thinking about the issues for years. Right at the start of Corbyn’s leadership, he gave an interview to the Jewish Chronicle, the nearest thing there is to an official paper of the Jewish community. He described going to Israel after the 1973 war to stay with relatives. Lansman emphasised his Jewish heritage and described how his pro-Palestinian perspective had come about not from ignorance of the region but from the time he had spent in Israel: “I worked on a kibbutz in the Negev and my aunt lived in Beersheva. It was actually a very politicising experience. When I did my barmitzvah I saw myself as a Zionist and I think after I went there, I felt it less.” Lansman tried to signal to readers of the paper that there was a space for them in Corbyn’s Labour and that they should think about the party sympathetically.

In the second example, Corbyn attended a “third night” Passover Seder held by Jewdas, a group of young Jewish leftists. (The idea of a Third Seder emerged in the 1920s among Yiddish-speaking migrants from eastern European, and their descendants. Many such Jews wanted to preserve vestiges of the major holydays that most of their grandparents had observed in Europe; and they reimagined those customs in secular and often irreligious terms). He was criticised for being there – only for the other attendees to rush to his defence, and to win a significant portion of mainstream Jewish opinion behind them.

Jewdas was an organisation of Communist and anti-Zionist Jews. Its core demographic was several decades younger than the more visible pro-Corbyn campaign Jewish Voice for Labour. Compared to JVL, a much higher proportion of its members were religious and attended or even led synagogues. Unlike JVL, or indeed Jon Lansman, it did not make a fetish of membership of the Labour Party, it did not set itself up as a participant within Labour’s factional wars.

Jewdas was seemingly a much more flippant organisation than JVL: its Twitter account was fractious, and its literature often satirical. This veneer concealed the reality that Jewdas was much more serious than Jewish Voice for Labour about combating antisemitism. Three months before Ed Miliband resigned as leader of the Labour Party, and long before Corbyn had decided to run for the Labour leadership, it made a first attempt to set out its own definition of antisemitism, one which was intended to keep the issue as simple as possible: “Antisemitism is racism. It’s just a word for anti-Jewish racism, hatred of Jews because they are Jews, equivalent to hating people because they are black, Asian, Irish or whatever.”

(I have quoted this definition elsewhere and readers have complained that it is too simple – antisemitism does not require hate, any more than sexism requires misogyny. Part of antisemitism’s distinctive appeal has been the way that people employ it both against those who they believe are privileged and those who they believe are not. Antisemitism plays a distinctive role, and a uniquely troubling one in the way that it can overlap with redistributive instincts. I accept that argument to some extent although, I am also quite sceptical that this idea is unique to antisemitism. There have been other forms of prejudice which have equipped people who believed they were at the bottom of society to attack those seemingly just above them. And, if you read the whole Jewdas piece, they saw the point about “punching upwards” too).

Like much of what would become the Corbynite left, Jewdas rejected the idea that criticisms of Israel were automatically antisemitic. “Israel is a state. You can’t really be racist against a state. There is no position on Israel that is per se antisemitic – although you can express views on it in a racist way.”

Unlike others on the left, the group acknowledged that blaming Israeli acts on its Jewish population might well cross the line: “[B]laming policies of the Israel government on ‘The Jews’? Yep, that’s racist. Blaming them on ‘the Zionists’? I’m afraid that, most of the time, that’s racist too – ‘Zionist’ has long been a synonym for ‘Jew’ in much racist discourse.”

This early acknowledgment of the possibility of antisemitism on the left equipped the group well for the crisis that would follow. In 2018, for example, when Corbyn was criticised for his support for the mural “Freedom for Humanity” and its artist Mear One, Jewdas was able to remind its readers that it had criticised antisemitism on the left. They refused to justify the mural or make excuses for Corbyn’s support of it: “There is no question that the mural was antisemitic … Six years ago, that mural got taken down. At the time, Jeremy Corbyn consoled the artist who drew it. Inconsiderate? Definitely. Dodgy? Yeah. Racist? Maybe.”That acknowledged, they went on to say that Corbyn’s reaction did not justify the anger now being directed at him: “[I]s it a communal crisis that the leader of the Labour Party posted an unthinking comment on a Facebook post six years ago? Only if you’re a hired troll whose job it is to dig up dirt on left-wing politicians to force them out of office.”

In choosing to sit down with Jewdas, Corbyn was making time for people who had a coherent idea of what needed to be done, and one which was different from his or his allies’.

The Daily Mail journalist Andrew Pierce attended the Seder. The story Pierce told his readers was that Jewdas was not a group of Jews at all, but really gentiles parodying and insult Jewish traditions as part of their sinister mission of offending and humiliating Jews. Several subtle steps all came together to demonstrate that Jewdas were not the Jews they pretended to be. In contrast to real Jews, many members of Jewdas were self-declared anti-Zionists. Unlike British Jews, they did not eat meat. Jewdas had chosen to hold their Seder in a Christian church. They were extremely critical of self-declared Jewish leaderships. They had put on a largely secular service. Worst of all, Jewdas replaced traditional Seder prayers with greetings of their own: “They raised a beetroot in the air and shouted f*** capitalism.”

In an interview for Sky News, the President of the Board of Deputies Jonathan Arkush denounced Jewdas for breaking what had until then been a shared communal wall excluding Corbyn. Arkush insisted that the Mail was right, Jewdas were not Jews. The only thing which held Jewdas together, he insisted was antisemitism, “They are lifelong campaigners against the Jewish community to whom they show the utmost disregard and contempt.”

However, as the story continued, more and more public voices confessed to having been if anything heartened that Corbyn should spent his time at a meeting with young Jews, even ones with views different from their parents’ generation.

The Jewish Chronicle ran a first piece criticising Jewdas. Later the same afternoon, itran a second piece by Charlotte Nicholls (a Labour Party member who had attended the Seder). “Jewdas has also been absolutely steadfast in addressing antisemitism on the left, particularly in pro-Palestine circles, including producing one of the most useful resources around on the distinction between antisemitism and criticism of Israel.”

Jewdas was being criticised when, Nicholls insisted, it was simply a meeting of left-wing Jews. “While some communal bodies lay claim to speaking on behalf of the whole community, as though we are some monolithic bloc that speak with one collective voice, Jewdas is a place for disagreement, debate and where there are very few taboos.

Lansman’s article was a relatively small incident in Labour’s antisemitism crisis, but the underlying politics of it were the right ones for a left that was serious about finding a principled way through. It was a significantly sharper reaction than those on the left who responded with allegations of treachery against him.

Lansman was speaking to an audience of people who, he understood, needed to be persuaded of Corbyn’s good faith. The paper gave the interview a friendly title, ‘Ex-kibbutznik who is Corbyn’s left-hand man.’ Other Jewish newspapers responded to it in guarded or emollient tones. “Even some critics concede that Lansman’s intentions are sincere,” wrote Jewish Notes. This was as good as the Labour left was likely to get at the time, and a long way from the open conflict of three years later.

Similarly, after the Jewdas dinner, David Baddiel wrote, “They are just Jews who disagree with other Jews. Which means Jews … To make out that it’s somehow antisemitic for him to spend Seder with them just because they’re far left is balls.” Writer and comic actor David Schneider presented the Mail’sposition as: “‘Boo! Corbyn needs to get out and meet some Jews!’ (Corbyn spends Passover with some Jews at Jewdas) ‘Boo! Not those Jews!’”

It has been one of the bitter ironies of the past five years that policies intended to protect Jewish members of the party have turned out to be used extensively against left-wing Jews. That conflict was not inevitable. But responding to it required empathy, a realisation of quite how strident and hostile the left was capable of seeming. What we needed to be was both principled in our politics and much more sophisticated in how we argued them.

Three years later, that remains the left’s task.

This piece is loosely based on material from my new book, Labour’s Antisemitism Crisis What the Left Got Wrong and How to Learn From It, which has just been published by Routledge.

Courts and counter-insurgency


When I saw the cover of this book, my starting assumption was that this was one of those studies you sometimes come across in which the author tries to think about the law as a means towards revolution, maybe drawing on such traditions as those of the barefooted lawyers who advised the early workers’ movement, or the Wobblies, or the likes of the Chicago 7 and their attempts at breaking judicial power in the 1960s.

Such a book would have its purposes, but Ledwidge’s is something very different, almost the exact opposite. A former barrister and former military intelligence officer, he is writing for the benefit of occupiers, imperialists and those employed in the counter-insurgency sector. He is trying to explain to technologists of counter-revolution how to do their job.Ledwidge’s real interest is in empire.

The secrets to making British or US power work, he argues, are a) a certain strategic caution, and a refusal to apply authoritarian strategies openly (a key instance, alluded to in the book but not really set out is the failure of internment in Ireland in the 1920s and 1970s), and b) the active promotion of courts and judges. Occupation works best when imperial powers encourage the existence of courts which can hear people’s ordinary disputes (about crimes, the distribution of resources, etc.) and those courts acquire a reputation for a minimum robust fairness.

Chapters deal with such topics as the creation of Dail courts by Irish rebels in the 1920s, attempts at justice in revolutionary Latin America, courts under ISIS. But I have been reading Ledwidge’s book more because of what he has to say about Afghanistan, where he served in Helmand with the brief of establishing a court system.

On his account, at no point did UK ministers, civil servants, or military officers have any knowledge of the country they were ruling, nor did many speak its languages, nor did they have any interest in the people they ruled. As they saw it, they had no choice but to support a government which was widely despised, and its courts although they were notorious for delays, and for the openness of the judges to bribery.

Alongside petty crime, Ledwidge argues, and the widespread abuse of women, the primary grievance of ordinary Afghanis concerned laws, still on the statute book but dating back to the period of Communist rule, permitting the distribution of land, which had been used by the government and its allies to expropriate the land of ordinary Afghani peasants. As far as most people were concerned, there was simply no prospect of using the existing US- and UK-backed courts, to get their land back.

On the other hand, the country also had – right through the period of US occupation – a fully-functioning shadow system of Islamic courts, backed up by Taliban guns. Some of the most interesting parts of the book concern how those courts have been used, often by people with no ideological interest in the Taliban programme, to obtain justice.

As an example, Ledwidge describes a dispute which began when a woman accused her son in law of marrying her daughter without paying the bridal price. The woman said that the man had had sex with her daughter without a lawful service, i.e. had raped her. (He had in fact paid the dowry). She took the matter to the US-backed authorities. The local police officer accepted a bribe and therefore arrested the man, punishing him by beating and raping him. Shortly afterwards, Taliban supporters murdered the corrupt police officer. In the affected community, this was widely perceived as a step towards justice.

The Taliban, he argues, wanted to maintain their relationship for moral purity. The judges were therefore spied on by a religious police force with a mandate to prevent corruption, principally bribery. I am not suggesting that this system sounds humane or in any way desirable, only saying that it is a plausible if partial explanation of how the Taliban were able to remain an institution in Afghan life, despite 20 years of formal exclusion from power.

The defeat of Corbynism has been a setback for Palestinian rights. It’s time to change course


Between summer 2015 and the end of 2019, the British Labour Party was caught in a seemingly unending antisemitism crisis. According to one study, the UK press published 6,000 articles about antisemitism in the Labour Party in four years; and for each article, there were of course many further pieces on other news sites, in the international press, etc.

Labour’s difficulties could not be reduced to the Middle East – the allegations were much broader than that. And yet, when you look with care at the individual stories, it feels as if Israel and Palestine were never far from view. Take for example, the moment when former London Mayor Ken Livingstone told a radio interview that “When Hitler won his election in 1932 … he was supporting Zionism – this before he went mad and ended up killing six million Jews.”

People often forget why Livingstone was being interviewed, which was to defend a recently elected Labour MP Naz Shah, who had shared on social media a picture of Israel superimposed over the United States, suggesting that the clash between Israel and Palestine could be solved if only the Jewish population of the former chose to relocate to the latter country: “Problem solved and save you bank charges for the £3bn you transfer yearly.”

Shah had urged her followers to vote in an online poll asking whether Israel had committed war crimes. When a large vote could be seen against that finding, Shah urged her followers to vote the other way, warning that, “The Jews are rallying to the poll.” (Shah grasped that the phrase “the Jews…” was likely to cause offence and apologised for her comments. It was Livingstone who turned a minor press story into a permanent crisis).

Many other examples could be given of commentary supposedly in support of Palestinian rights which either tested the boundary with antisemitism, or which provided the opportunity for people to make antisemitic comments. Think for example of those Labour leftists who blamed Corbyn’s isolation on “Zionist agents” and “Israeli funds”. Or the Liverpool music promoter and long-time anti-racist Philip Hayes who confronted right-wing Jewish Labour MP Luciana Berger. He told her that Benjamin Netanyahu was “your Prime Minister”. So far, so pro-Palestinian (he could have told himself). But then added, “I fucking hate Jewish people … All Jewish people have money”.

For pro-Palestinian activists, episodes such as these raise the familiar question of when to let certain language pass, and when to stop, to point out the danger of certain expressions and the risk of falling into racist discourse. If there was anything the British left learned in 2015-19 it was that we missed the signs, and tended to respond late.

Arguably the best activist document published in Britain in the last ten years was written before the crisis broke. Published by Jewdas, an organisation of anti-Zionist Jews which contained anarchists and Marxists as well as Labour leftists, “Antisemitism is racism,” the author wrote. “It’s just a word for anti-Jewish racism, hatred of Jews because they are Jews, equivalent to hating people because they are black, Asian, Irish or whatever.”

How, then, could anyone avoid doing antisemitic, or speaking anti-Jewish words? “You treat people as individuals. If you meet a new person you don’t assume you know anything about them from a group that they may be connected to. When they do something, be it good or bad in your eyes, you don’t connect those actions with any group – the actions are purely the responsibility of the individual in question. You don’t generalise about groups of people – you allow individuals to define themselves in their own terms.”

In common with much of the non-Jewish left, Jewdas had a keen idea of acts which were not antisemitic but were wrongly portrayed as racist. “Israel is a state. You can’t really be racist against a state.” Unlike much of the left, though, Jewdas did not stop there but accepted that criticisms of Israel might cross the line into racism: “[B]laming policies of the Israel government on ‘The Jews’? Yep, that’s racist. Blaming them on ‘the Zionists’? I’m afraid that, most of the time, that’s racist too – ‘Zionist’ has long been a synonym for ‘Jew’ in much racist discourse.”

Jewdas were back in the news by spring 2018 – when Jeremy Corbyn visited their third night seder. Criticised by the Daily Mail for holding their event in a Christian church. Putting on a secular service and replacing Seder prayers with greetings of their own: (“They raised a beetroot in the air and shouted f*** capitalism”), the organisation pushed back against press efforts to label them as antisemites – they were able to say, in good faith, that they had been warning against the risks of left-wing antisemitism for longer than anyone.

Activists in Britain are not the first to have been tested in this way. Over the years, many Palestinians have grasped the tendency for Jewish opinion of Israel to polarise, and for a significant minority to oppose that state. This, for example, is Edward Said, writing in 1997, after the Oslo process had run aground: “We need to remind ourselves that political struggles are always contests of will, in which one side attempts to persuade the other side to give up, to lose the will to resist and fight on. This is not a military but a political and moral matter.”

Said’s strategic perspective – of trying to woo, and split, Jewish opinion – had, in turn, implications for how Palestinians should see Jews and the history of Jewish suffering: “We must recognise the realities of the Holocaust not as a blank check for Israelis to abuse us, but as a sign of our humanity, our ability to understand history, our requirement that our suffering be mutually acknowledged.”

Said was an exiled Palestinian, who had been forced to leave the country in 1948 aged just 13. He campaigned for the right of Palestinian refugees to return, even during the Oslo peace process, in which Israel and the United States pressed for a “peace” which would have forever signed away the rights of his generation. He belonged to an irreconcilable wing of Palestinian activists. If even a figure who had suffered a lifetime of exile at Israeli hands was capable of grasping that “the Jews” were not a single bloc of people but divided by class, generation and opinion, then there was no excuse for British activists to pretend that an attitude of causing gratuitous offence was somehow “pro-Palestinian”.

Six years after Corbyn’s election, Palestinian activists are left with memories of a time when it seemed as if their demands were being taken up by hundreds of thousands of people. In the 2017 general election, Labour’s vote share rose faster than at any time since 1945. At the 2018 Labour party conference, delegates waved Palestinian flags.

By 2021, however, organising for Palestinian solidarity seems to face more obstacles than ever: around 30 British universities have adopted the IHRA definition of antisemitism. When, this summer, schoolchildren put up posters calling for Palestinian solidarity, teachers tore them down. A discourse had been allowed to take hold in which acts of solidarity had been reimagined as something hateful and wrong. 

One of the tragedies of Labour’s antisemitism crisis was that for all the rhetorical support given to Palestinians, desperately few attempts were made to explain what is at stake in that conflict. It is precisely because the pro-Corbyn left was committed to a peace which removed Israel’s racial laws and provided justice for Palestine that we needed (and still need) to reject any defence of the Palestinians expressed in antisemitic terms.

If you enjoyed this piece, my book, Labour’s Antisemitism Crisis What the Left Got Wrong and How to Learn From It, was published earlier this week by Routledge.

Antisemitism rose worldwide because of Trump – not Corbyn


To coincide with the publication of my new book, Labour’s Antisemitism Crisis What the Left Got Wrong and How to Learn From It, which is published today, I’m running an extract from it on this blog. Today’s piece explores how the increase in antisemitism throughout the anglophone world began in 2015-16 with Trump’s run for the Presidency. This, far more than events in Britain, inspired emulators in other countries. Moreover, Trumpism has had a permanent effect on the Republican right in the United States, making antisemitism a plank of that party’s thinking. That process has continued, despite Trump’s electoral defeat at the end of last year.

During the 2016 election, Trump repeatedly employed antisemitic myths. He counterposed his message of America First to the risks posed by the “global” power structure, manifested in the “international banks” who he accused of holding covert meetings with Hillary Clinton. Trump also used anti-Jewish symbols, for example, by tweeting images of Hillary Clinton with a pile of money, the words “Most Corrupt Candidate ever,” and a six-pointed Jewish star. He claimed to be standing against the “global power structure that is responsible for the economic decisions that have robbed our working class”, words illustrated with an image of the Jewish CEO of Goldman Sachs, Lloyd Blankfein.

The effect of Trump’s success in that election can be traced in the growing popularity of antisemitic online memes and messages, and in antisemitic actions off-line. So, for example, on Twitter; the Anti-Defamation League found that 2.6 million anti-Jewish tweets were sent between summer 2015 and summer 2016. The ADL was especially concerned with tweets directed at anti-Trump or pro-Democrat journalists, who were accused of being unpatriotic Jews. Some 800 journalists were targeted in this way, and 45 million people read the antisemitic messages directed at them. Indeed between 2016 and 2017, the Anti-Defamation League found, the total number of antisemitic tweets rose again – by more than 50 percent.

Indeed, if we look beyond Twitter, the picture is the same. Fascists and antisemites were able to build up an audience under his patronage, and at an extraordinary speed. So, for example, James Allsup was a member of the far-right Identity Evropa group. In 2016, he first came to the attention of the press when he was a student Republican at Washington State University and a vocal supporter of Donald Trump. Together with fewer than a dozen other people who supported him, Allsup put up a “Trump Wall” at WSU. He later invited Milo Yiannopoulos to speak. Both events were widely covered in Trump-supporting Republican media and helped to create an image of Allsup as a young, contrarian, boldly standing up to political correctness in all its forms. Prior to November 2015 and Trump’s rise, he had no visible presence on YouTube or on other social media. In August 2019 YouTube closed his account. By that point, his films had been watched 73 million times.

Events such as the use of antisemitic slogans by far-right activists at Charlottesville in summer 2017 (“Jews will not replace us”), or the defence of those protesters by Trump (“very fine people on both sides”), showed that, after years in which antisemitism had been marginal to American politics it was tolerated by one of the country’s two main parties.

Moreover, Trump’s philosemitism was not merely a personal affectation but played to a part of his voting base: Evangelicals who see the restoration of the Jewish people to statehood in Israel as a prerequisite the speeding up of the millennium. These fantasies offer Jews little long-term benefit. The Book of Romans envisages that with the arrival of end-times the Jews will all be converted to Christianity – and cease to exist as Jews.

Some readers may object to the ideas of Trump as a key figure in the global spread of antisemitism. He has a Jewish daughter; he has promoted the interests of Israel. Trump has spoken at Jewish events. All these characteristics are said to prove that Trump is no antisemite.

It is true that Trump has used language which sounds, on its own terms, pro-Jewish. But we need to dig a little deeper. As so often happens where people express their admiration for Jews, the kinds of behaviour he fixed on were ones which are unlike how most Jewish people live, and which many Jews would find uncomfortable. So, on 8 December 2019, Trump addressed the Israeli American Council National Summit: “A lot of you are in the real estate business because I know you very well. You’re brutal killers. Not nice people at all. But you have to vote for me; you have no choice. You’re not going to vote for the wealth tax.”

Trump pretended to make a joke of Jewish disdain for him, saying it was reciprocated. But commercial interests, he argued, would bind his audience to him: “Even if you don’t like me; some of you don’t. Some of you I don’t like at all, actually. And you’re going to be my biggest supporters because you’ll be out of business in about 15 minutes, if [the Democrats] get in.”

Plainly, in Trump’s mind, he is a Jew-lover, but what is it about Jews that he admires? He loves the “fact” that Jews are businessmen and hate taxes. He believes that Jews place their own interests above other people, that Jews are clannish and insular, that Jews formulate plans to advance their own interests, and that Jews have a power which is international. All these ideas make him an antisemite, no matter how many Jews he speaks to.

Under Trump and since, a number of Republican Congressmen including Kevin McCarthy, Louie Gohmert, Steve King, and Paul Gosar have spread conspiracy theories in which prominent Jews, such as the financier and Democrat-donor George Soros, are blamed for any setback suffered by their party.

The reason the politicians have done so, is that this faction of the American centre-right (along with President Trump) understands American politics as a struggle between “globalists” who would sell out America to her foreign rival China and to various other international institutions which are perceived to have escaped from American control and “economic nationalists” who would defend US interests aggressively.

Once you have split up politics between nationalists and internationalists, it is an easy next step to see Jews not as a group of people who agree or disagree with one in the way that black people or white people do, but as an ideological category – supporters of multi-national institutions such as the IMF or WHO or World Bank, advocates of liberal policies such as freer migration, and an obstacle in the path of right-wing victory.

Trump-style antisemitism spread beyond US borders. If you want a good example of it, think of the Soros myth, in other words the idea that all liberal, left, anti-fascist and pro-migrant sentiment in the world is financed by a single shadowy Jewish financier, George Soros. Here are some examples of how that idea spread into parts of the new nationalist right: in Hungary in 2018, the ruling Fidesz party stood for reelection on the slogan, “Let’s not allow Soros to have the last laugh!” The posters were then covered almost everywhere with grafitti identifying Soros as a Jew.

Italians started talking about Soros-financed immigrant boats arriving on the shores. In the US, some people suspected Soros was behind the migrant caravan entering from Central America. A Polish member of parliament called Soros the “most dangerous man in the world.” In Israel, Benjamin Netanyahu’s son Yair published a cartoon showing Soros as the puppet master controlling first shape-shifting lizards, then Illuminati, and then finally a triad of anti-corruption activists, journalists and left-wing politicians. In Britain, a range of nationalist-mindeed conservatives have one on record to support the myth: Roger Scruton, and the MPs Sally-Ann Hart and Jacob Rees-Mogg.

In emphasising that the Donald Trump campaign was the moment when antisemitism became a significant force in global politics, after thirty years in which it had been at the margins – I am not minimising the mistakes of the left, or saying that there was any high wall preventing ideas which had begun at one point on the political spectrum from then reppearing at another. There were also places where antisemitism came into the UK left – even moments where you can trace the transmission from the US right to the left here:

The Mear One mural. The story of antisemitism in the Labour Party became front-page news in March 2018, when Jeremy Corbyn was asked about his support for an American artist Mear One who had painted a street mural in east London, ‘Freedom for Humanity’. If you look at the mural for any length of time, it clearly embodies any number of antisemitic visual messages. Corbyn had seen the photograph and posted a quick, mis-spelled message of support for the artist. For this, he was widely and rightly criticised. Mear One, had been a street artist in the hip hop scene of 1980s Los Angeles and had contributed to anti-war art tours before being invited to paint his mural. In Mear One’s account the design was simply the transportation to Britain of the politics of the Occupy movement: “I had just gone through the cypher of Occupy LA 2011 … my experiences helped to crystallise my post 9/11 thinking on global politics and the economic slave system, deepening my knowledge of fractional-reserve lending and other banking schemes that led to the collapse of the markets in 2008.” Mear thought he was on the left, but in reality he had been radicalised to the right by Occupy and by coming across right-libertarians there, and believing their criticisms of capitalism in which the problems of the latter were blamed on banking, finance and (just beneath the surface) the Jews. Asked to explain what the criticisms of the mural were about, he said, “Some of the older white Jewish folk in the local community had an issue with me portraying their beloved #Rothschild or #Warburg etc. as the demons they are.” Mear gave an interview to “I thank David Icke and Gareth Icke and their team” Mear One wrote, “for allowing me this opportunity to offer my side of the story, uncut and uncensored, for those who are awoken.”

The Campaign against Luciana Berger. This began in 2014, the US far-right website Daily Stormer website developed an obsession with Berger, and published about 40 articles about her, denouncing her for being Jewish. At one point Berger was receiving hate messages at the rate of 800 *a day*. Between 2014 and 2018 three supporters of the far right were jailed for threatening her. (A fourth case began with emails sent by a fascist to her, although the sender was convicted and jailed for other, terrorism, offences). From early on Berger seemed to be a particular target also for some people on the left – with rational criticisms of her (she was on the right of the party, she had a long record of pro-Israel advocacy, she had been parachuted into a left-wing Labour seat…) spilling over into something strange and unpleasant and unjustifiable. Leftwing music promoter and anti-racist activist Philip Hayes was convicted after abusing her when he was drunk (“I fucking hate Jewish people”). In March 2018, another supporter of the Labour left received a suspended sentence after sending her hatemail. By 2018, when Berger was blamed for the Mear One story making it into the press, she received abuse at an extraordinary rate.

At the fringes of the antiwar movement. In 2019, the pro-Corbyn MP Chris Williamson toured the Labour Party and the UK, putting his anti-war and left of centre politics to every audience he could find. He then promoted the social media presence of the people who had hosted or spoken alongside him. Among the individuals he boosted where Gilad Atzmon (“Hands off Gilad Atzmon – Sign the Petition”) and Vannessa Beeley (“a privilege to hear her speak”), each of whom have been able to build significant social media presences by appealing to an anti-American milieu on the edges of – and just outside – the ordinary antiwar movement. Atzmon will be familiar to many readers of this blog for his long record of Holocaust Denial and antisemitism. While, as for Beeley, she has denounced the Syrian medical defenders the White Helmets (“are #WhiteHelmets not ready to come out of the Zionist closet just yet?”), Jimmy Wales the founder of Wikipedia (“#Zionist apologist”), Palestine Solidarity campaigners who support an uprising against the Assad regime (“Zionist agenda in #Syria”), and politicians in France (“a Zionist apologist”) and UK (“Zionist agenda”). Individuals in this pro-dictator, antisemitic milieu are able to build an audience in part because in the US, unlike in Britain, the antiwar movement has largely broken its relationship to the organised left, and its supported by parts of the libertarian right, and key blogs such as, are funded by the right.

In conclusion – often people talk about antisemitism as if it is a permanent fixture in life – always present, and always at the same intensity. But that’s wrong. It used to be part of the wisdom of the US centre-right that anti-Jewish racism was as a disaster for them. The things the right was trying to do – enable capital moving freely, spread a right-wing version of open borders – did not connect well to antisemitic ideas or conspiracy theories. With the right’s turn to nationalism, the vision has grown of a different way you could run an economy, as a series of national fortresses – this creates a space for antisemitism to revive.

It used to be part of the collective wisdom of the centre-right that in order to grow they needed to keep antisemites and conspiracy theorists out. Think for example of what happened to former Klan leader David Duke when he ran for US Senate in Louisiana in 1990. Criticised almost as much by Republicans by Democrats, the GOP surrendered the primacy to incumbent Democratic senator J. Bennett Johnston, Jr., rather than having a racist and antisemite elected on their ticket. Looking back on that moment, it feels like it is not thirty but a hundred years ago – so much has changed.

Since 2016, a racist view of the world has become integrated into mainstream centre-right thinking. It will continue to do harm even now that Trump removed from the White House. And in a world connected online, where ideas move freely, and can cross ideological lines – the left needs to be much better than we have been at identifying antisemitism when it is near to hand, and opposing it.

The HE Bill – a Holocaust Denier’s Charter


Pity poor Michelle Donelan. In mid-May the education minister went on Radio 4 to justify the Higher Education (Freedom of Speech) Bill. Asked about the Bill, and whether it would require universities to respect the free speech rights of Holocaust Deniers, she said that it would. “A lot of the things we would be standing up for would be hugely offensive, would be hugely hurtful,” she acknowledged.

Boris Johnson’s spokesman insisted that Donelan had misspoken: “Holocaust denial is not something that the government would ever accept.”

Since then, Donelan has been sent out repeatedly to explain that the account she had given first time round was wrong. The Bill will not require universities to accept speech that contravenes the Equality Act. “We can hold and articulate views which are objectionable to others as long as they don’t cross the threshold of hate speech.”

For fifty years, there has been a conflict in universities over whether far-right speakers should be allowed a platform. The starting-point is a motion passed by the National Union of Students as long ago as April 1974, and periodically reaffirmed since, which encouraged universities to refuse platforms to “openly racist or fascist organisations or societies”. The main (but not the only) target of the phrase “racist or fascist organisations” was the National Front.

Ever since 1974, radicals have continued to debate among themselves how far no platform can be extended, while government ministers have tried to keep this exclusion as narrow as possible. In the early 2000s, I was an official of the university lecturers’ unions NATFHE. The campus left insisted then that “hate speech” was unlawful harassment contrary to the Race Relations Act (today the Equality Act). Ministers disliked that argument, and wanted to protect the free speech of speakers who were on the right, maybe even the far right, but not fascists. At that stage, they tried to hold the line through non-binding guidance.

The whole point of Donelan’s bill is to go beyond this previous compromise in which universities were allowed to set the limits themselves. It insists that the Equality Act ceases to apply when it comes to the question of free speech. The bill creates a new and absolute “Duty to take steps to secure freedom of speech”. The very first clause of the bill begins, “The governing body of a registered higher education provider must take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for it to take in order to achieve.” You will notice the word “must”: the bill takes away from Universities the discretion they previously enjoyed to say that of course free speech is important but it is not the only value at stake; equality law also applies. Maybe it did in the past, but it will cease to if and when the Bill passes.

Under the new law, universities are only required to uphold free speech so far as is “reasonably practicable”. But this provides no wriggle-room. For practicable is a concept we repeatedly encounter in different areas of the law. It means what it says, that a university might consider issue of practicability in deciding when or how to put on an unwelcome event. They might not have to host it if contacted for the first time an hour before the event is due to start. What a university can no longer do is refuse to host that speaker at all.

The government could have put into the legislation a “saving clause”, words saying clearly that the Equality Act still applies – they have chosen not to do so.

The bill allows anyone to sue a university for damages, an injunction or a declaration in circumstances where they believe that their free speech has been limited. The people who will interpret the bill are therefore not ministers but judges. And they are most likely to say that the Bill has a clear purpose. It constitutionalises free speech, making it a defining purpose of universities. Students may well ask, what about the ban on hate speech? The answer will come back: I’m sorry, it doesn’t apply anymore.

Why then won’t the government just come forward and admit, as Donelan did when first questioned, that this is an absolutist free speech bill?

One answer could be that, for all the government’s professed admiration of free speech that it is actually even less keen on the universal tolerance of all opinion than the disobedient students that the bill was intended to defeat.

For the range of opinions disapproved of by ministers is wider than just Holocaust Deniers. Over the summer, we have seen complaints of students painting Palestinian flags on their hands or putting up posters in support of Palestinian rights inside British schools. Gavin Williamson responded by insisting that “schools should not present materials in a politically biased or one-sided way”. In just the same way, ministers also have a strong idea of the opinions they want to discourage when it comes to such “culture war” topics as the legacy of the British empire, the statues of prominent slavers, trans rights, etc.

If ministers are going to insist on pushing this bill, they should have the courage to stand up and defend the law they have crafted. Yes, it will make life easier for David Irving, and not just him either but others to the government’s right: the likes of Nick Griffin or Tommy Robinson. That is the whole point of their law.

(If you’ve enjoyed this piece, you might enjoy my book, No Free Speech for Fascists: Exploring ‘No Platform’ in History, Law and Politics was published by Routledge in June).

Free speech and convergence on the centre- and far-right


For some time, I have been writing about a dynamic which I see as key to explaining the success of the right in global politics since 2015. I characterise that process as convergence. In other words, the centre right has been able to grow by reversing its previous attitude of hostility (“gatekeeping”) to the far-right. Instead of keeping out far-right people, money and ideas out, they are allowed. The centre and the far-right converge (i.e. form alliances) over issues of culture, over issues of long-term political positioning (eg. opposition to Islam, free movement, a partial rejection of austerity), and over short-term goals (e.g. the election of Donald Trump, Brexit, etc)

Convergence is not just an alliance between the centre-right and its immediate outliers, it is an alliance often on the latter’s terms (think of Trump’s ascendancy over the never-Trump Republicans who were compelled to vote for him, or Marine Le Pen’s ability to persuade an ever-growing proportion of French centre-right voters to support her, should she make the final round of the Presidential elections).

Convergence is a very sharp break with the previous electoral wisdom of the centre-right, which held as recently as 15 or 10 years ago that a right which moved too far way from the centre-ground would be punished. Just think of the way that the British centre right turned in 1940 against Mosley (“the only living Englishman who is beyond the pale”), the defeat of Enoch Powell in 1968, the mainstream Republican refusal to support David Duke in his campaigns to be elected to the Senate.

If convergence is the ideal way to build a political party in conditions where voters reject austerity, but our political system has seen no clean ideological break with neoliberalism, why hasn’t the left practised it too?

The best answer is that it has. You can look at Greece and the relationship between Syriza and its allies epitomised by the promotion of the left independent Yanis Varoufakis. You could talk about Britain in c2017, Corbyn’s populist turn, Labour’s willingness to have its manifesto drafted by people and groups beyond the party. Convergence won the left votes. But convergence has specific problems for the left of adaption to an ideologically labile and depoliticised milieu of what Gramsci termed “subversives” who can smuggle in to the left all sorts of unwelcome habits.

Meanwhile, convergence on the left was fiercely contested by the party bosses: Sanders lost to the Democratic machine in 2016. Corbyn’s inner-party compromise resulted in permanent internal faction war.

All of this is a prelude to what I want to talk about, which is to identify some of the dynamics by which convergence takes place.

It can take place through formal alliances. In a very few countries (eg Austria) we have seen a simple electoral pact between centre- and far-right. That didn’t happen in either Britain or the US, essentially because under conditions of established two-party competition there was no institutional space for a second party on the right. If you recall, in the 2019 election: the Brexit Party was desperate to offer the Conservative terms, but all offers were rebuffed. (The Conservatives calculated, rightly, that UKIP/Brexit could win referenda, even European elections. But, without help, the party couldn’t win and hold so much as a single seat in Parliament). Eventually the Brexit party had no option but to offer the Conservatives on the latter’s terms. The Brexit party would start against Labour candidates but not against the Conservatives. It’s 600,000 cotes helped to ensured that the latter won the election. The deal was in institutional terms, an extraordinarily bad one for the far right. If, perhaps, Nigel Farage was awaiting a peerage it hasn’t come, nor presumably will it.

But, convergence takes place more through short-term, unacknowledged agreements.

To give an example, imagine a Republican student group wants to hold a meeting. It may be that the politics of the students are electoral and centrists in their orientation, but they want to get an audience and appear to be a growing force. The most popular speakers on the right are provocateurs who straddle the centre-right / far-right divide, who enthuse for the Trump coup etc. So the students invite – in 2016-17, Milo Yiannapoulous, or today it would be Tucker Carlson.

Convergence in this context means giving a platform to someone further to their right, allowing them to speak, welcoming a battle with campus leftists, then insisting when the event is challenged that it is protected by the first amendment.

What I am describing is a local version of the Trump coalition in the dying days of the Presidency. However serious Trump was about his march on Washington or not, he knew it was in his interests to flatter people further to his right – the Proud Boys for all their willingness to take to the streets and carry out punitive acts of violence, for all their similarity to movements in history such as the fasci di combattimento, the freikorps etc. An electoral politician worked with people to his right, let them lead him, then relied on free speech as his defence to impeachment proceedings.

Returning to Britain, for all the many differences between Trump and Johnson, much the same calculation is being made here. So, when the Conservatives justify their proposed Higher Education (Freedom of Speech) Bill, the cases they rely on are of isolated individuals – the likes of Noah Carl, the postgraduate student and contributor for Mankind Quarterly, who was dismissed from a research post at Cambridge.

Previous generations of Conservatives would have laughed at such activists, considered them an active nuisance, the chaff of right-wing politics. Today the party constructs legislation around their defence. It notes whenever far-right speakers are refused an audience, blames the left for no platforming them. The Bill insists that universities and students’ unions must welcome all speakers without exception and write into their rules academic freedom as a constitutional virtue.

The Bill looks to create the conditions in Britain for something like the campaign Turning Point USA, which publishes list of left-wing lecturers to be sacked, and insists on its own right to speak. The Bill creates a legal right under which a Turning Point UK or similar corporation could sue in the court for damages or an injunction if they were refused a platform. The Bill looks at Noah Carl’s case and asks why couldn’t he just bring a case to the Employment Tribunal against his dismissal? It solves that problem by allowing anyone to sue if their contract is terminated: not just an employee (which is the rule in any other sector of the British economy) but a postgraduate, a phd student, or even a mere undergraduate.

Can the left then do anything back? Or must free speech be from here on forever a process that helps the right to recruit news supporters and win elections?

As a matter of general approach; both the left and the right are, I’d argue, in a constant state of ideological ferment. Each side develops tactics for some time, which succeed or fail, then goes through a period of change – evolving towards new opportunities. The party which sticks to a single set of tactics, and applies them always, even beyond their creative moment, dies. There is no left-wing tactic against the right which assures the left’s ascendancy for all time, nor is there any similar tactic which works for the right in all circumstances. Rather, one or another tactic works for some time, is shown to have outlived its usefulness, and something else replaces it.

One strategy for left renewal might be to take back the slogan of “free speech,” and for the left to say – we demand to speak, too.

The contemporary right supports free speech narrowly. They oppose free speech rights of many different people – pro-Palestinians, advocates of trans right, workers criticising their employers, opponents of empire, advocates of race equality, etc etc etc. For them, it is a simple case of partisan advantage – for the left is of central value.

The whole point about free speech, is that you only get to be credibly its partisan if you support the speech rights of people you disagree with. A conservative calling for more chances for conservatives to speak, is not a champion of free speech. They are simply championing the right.

The left does in fact have a pretty long history of consistency on free speech going back to Milton with his vision of free speech for everyone save only “to suppress the suppressors themselves”, or Mill and his “infidel book” On Liberty, Marx, etc, up until and including the activists of the 1970s whose vision of no platform was meant to be that absolutely everyone could speak, save only for the small exception of Britain’s fascist and other political forces standing so close to fascism that they were on fascism’s toes.

Centre-right discourse around free speech is by contrast of recent origin. It dates back, in Britain and America, no further than the 1960s onwards (and the right’s slow, acceptance of the outcomes of the Lady Chatterley’s Lover, Chicago 7 and Oz trials). After many years of seeing free speech as a limited good, something which the right was obliged to accommodate to, conservatives began to use free speech discourse actively. Then, from 1989-90 onwards, the right began to treat free speech as an indicator of which side you belonged to: George Bush supported free speech, while “politically correct” students were accused of abandoning constitutional principles.

If we see this through the prism of innovation, in other words – whether from 1989 or from 2015, the right has experimented with new tactics which have brought it success. The left needs, but has not yet gone through, a similar period of tactical creativity.

That does not mean that the left has kept still.

If we focus on the activist left, I distrust the significant political shift that has taken place between two-similar sounding words “no platform” (the 1970s slogan) and “deplatforming” (that is, the idea that it is a sensible use of activist time and effort to lobby the large social media platforms and seek the removal of – initially, open fascists, and latterly the likes of Donald Trump and Steve Bannon)

You can trace the difference between these two approaches, it seems to me, around two questions; the first is who should be banned, the second is, who should do the banning? If you revisit, for example, the speeches at the 1974 congress of the National Union of Students, it was plain that two different ideas of no platform were operating in temporary and uneasy alliance: one, as I’ve indicated, cast the ban narrowly – only for fascists and their immediate allies. The other proposed the ban broadly, on any inegalitarian movement that actively promoted racism. And since 1974, we can add to racism, sexism, homophobia, disability discrimination, etc.

The second was who should do the banning, should it be the students themselves as part of a project to take control of the university and manifest their own counterpower, or should it be the managers, the employers, albeit on the students’ request.

No platform was a narrow exception to the general principle of free speech; deplatforming discards the principle altogether. No platform was about insurgent social movements in conflict with capital, while deplatforming has a markedly more gentle relationship to the likes of Twitter, Facebooks, etc.

The widening of no platform into deplatforming, and the discarding of a sense of insurgent movement’s counterpower were, in both cases, a strategic error. They contribute to the circumstances under which free speech has become a right-wing partisan signifier.

To reverse that trend would require – will require – a very significant change of approach.

(If you’ve enjoyed this piece, my own next book, No Free Speech for Fascists: Exploring ‘No Platform’ in History, Law and Politics, is published by Routledge today. It can be ordered here.)

How not to fight Nazis: Skokie, Greensboro, and the left in the US in the 1970s


(The following material is an extract from my new book about free speech and fascism. It’s worth reading alongside other historical pieces I’ve published looking at, for example, No Platform in the 30s and 40s, or the way the first Amendment was employed by the Supreme Court in the States in the 1920s)

The Rock Against Racism campaign in late 1970s Britain was such a clear success that there is the danger of assuming that every other comparable country must have witnessed a broadly similar movement. Surely anti-fascists everywhere responded to the same conjuncture with broadly similar tactics? Actually, they didn’t. In many places, the late 1970s saw anti-fascists either co-operating with the state, or making tactical errors on a scale to guarantee their own defeat. It is worth knowing this history, if only to understand other political traditions – for example – the US “free speech” tradition, which comes from a specific moment and a dramatic mistake.

In the United States, the best-known anti-fascist struggle concerned a proposed neo-Nazi march through the Chicago suburb of Skokie in 1977-8, where many Holocaust survivors lived. Frank Collin of the National Socialist Party of America (NSP) approached David Goldberger, legal director of the Illinois ACLU, asking for his support in challenging a decision of the Skokie Park District that the NSP could march only if it first posted a bond against disorder in the sum of $350,000. Collin explained that his supporters would march in full Nazi uniform: brown shirts, brown tie and swastika pin, black belts with buckles, dark brown trousers, and black engineer boots. Despite Goldberger’s misgivings, the ACLU agreed to represent Collin.

The decision to support fascists’ right to march was controversial within the American Civil Liberties Union, for the ACLU’s roots were in reaction to the anti-Communist campaigns of the 1920, during which the ACLU had principally defended revolutionary trade unionists, conscientious objectors and other left-wing protesters against a paranoid state.

Of Skokie’s 26 houses of worship, 9 were synagogues. Perhaps as many as 40 percent of the local population, or 30,000 people, were Jews. Among those demanding that the march be blocked were a number of Holocaust survivors. Anger with the decision was felt far beyond Illinois. The union’s membership fell from 270,000 in the early 1970s to just 185,000 after its public support for the right of Collin’s National Socialists to march.

The ACLU was successful in obtaining an order that city laws requiring permission for marches, prohibiting the dissemination of material which incited racial hatred, and preventing the National Socialists from marching in paramilitary uniforms were unlawful. By a 6-1 majority decision, the Illinois Supreme Court approved both the right of the NSP to march and in particular their right to carry pins, armbands and banners with swastikas on them: “We do not doubt that the sight of this symbol is abhorrent to the Jewish citizens of Skokie, and that the survivors of the Nazi persecution, tormented by their recollections, may have strong feelings regarding its display. Yet it is entirely clear that this factor does not justify enjoining defendants’ speech.”

The task of ACLU officials was to compel a sullen and angry generation of elderly Holocaust survivors into accepting, against their better judgment, that it would be good for them if they were compelled to endure the sight of Nazis marching through their home town, with all the memories that would bring of their treatment in the Holocaust.

At the crux of the Skokie case was an issue which remains unresolved in US politics. The purpose of the First Amendment is to prevent the American government (i.e. both the legislature and the executive) from limiting speech. This can be seen from the Amendment’s language, with its prohibition against limitation of speech by Congress and its guarantee of the rights of the people to assemble and to speak freely, and to petition the Government: “Congress shall make no law … abridging the freedom of speech, or … the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” What should the courts do, however, if the opponents of fascist speech are not the government but people – an anti-fascist crowd?

This battle ended with a legal defeat; the courts struck down the insurance requirement as unlawful. The ACLU’s advocates triumphed in court. But the Union’s membership list was diminished, the organisation was friendless, and a third of its local staff removed from their posts.

One moment in popular culture reflects the events at Skokie: Dan Aykroyd and John Belushi’s film The Blues Brothers (1980). Elwood and Jake are driving through rural Illinois when they come across rival fascist and anti-fascist demonstrations. They see members of the American Socialist White People’s Party pledging their allegiance to Hitler. “Those bums won their court case so they’re marching today,” a police officer says. “I hate Illinois Nazis,” Zee answers. Elwood drives their car towards the Nazi march, sending its members leaping into a nearby stream.

The politics of Skokie continue: the 1970s era ACLU is celebrated by libertarians of the right and the left. At the Charlottesville protests in 2017, the ACLU provided free legal representation to Jason Kessler, the main organiser of the far-right march. The city wanted to move the Unite the Right event away from Emancipation Park, which held a statute of Robert E. Lee, the Confederate general whose future was the underlying source of the conflict. Taking Kessler’s side, the ACLU argued that free speech required that the right should be entitled to assemble in Emancipation Park. “The First Amendment guarantees political speech, including protest, the highest level of protection,” lawyers for the ACLU argued, “and the right to speak out is the most robust in traditional public fora, including public parks and streets.”

In the forty years since Skokie, the ACLU has played a crucial role in persuading the public that free speech should have the totemic role that it plays within United States politics, as no longer merely a constitutional principle but the constitutional principle (the country’s “First” Amendment) taking precedence over everything else.


There is a second but different way in which the protests in the United States in 1977-79 point away from developments in Britain. Events at Skokie were followed in November 1979 by protests in Greensboro, North Carolina, at which a left-wing demonstration titled “Death to the Klan rally”, ended in Klansmen shooting anti-fascist protesters. Five of the latter were killed, four white men and one black woman, by neo-Nazis. As the historian of these struggles Kathleen Belew shows in her book Bring the War Home, the Greensboro shootings came at the end of two years of conflicts between fascists and anti-fascists, after a run of incomplete victories for each side. In July 1979, 100 members of the Communist Workers Party (CWP), attacked a community centre in China Grove at which members of the Klan had been watching Birth of a Nation, and successfully disrupted the viewing. Five months later at Greensboro, a camera caught American fascist Milano Caudle whispering, “China Grove”, moments before the shooting began.

Klan supporters and their allies from neo-Nazi and other groups prepared for the events in November by covering Greensboro with posters of a lynched black body and the slogan. “It’s time for old-fashioned justice”. Members of the CWP brought hard hats and clubs to the battle. Their opponents carried shotguns, nunchuks, hunting knives, tear gas and mace, three semi-automatic handguns and two rifles, one of them an AR-180 semi-automatic. Prominent neo-Nazis among the shooters included Green Berets who had served in Vietnam.

In Britain in 1978-79, the death of a single left-wing protester, Blair Peach, was politicised by left-wing campaigners who drew on their support in the local black (Sikh Punjabi) community of Southall, and worked with the Labour Party, the unions and other mainstream figures to win an argument as to who had caused the violence – not anti-fascists but the state.

At Greensboro, and despite the overwhelming force employed by the right, the latter had much greater success in portraying themselves as the victims of outside agitators. Klansman Virgil Griffin declared, “I think every time a senator or a congressman walks by the Vietnam Wall, they ought to hang their damn heads in shame for allowing the Communist Party to be in this country.” In the case that followed, an anti-Communist Cuban exile was selected as foreman of the jury, while afterwards other jurors praised the Klan.

Meanwhile, the CWP played up to Cold War fantasies about them, marching to commemorate the dead with rifles and shotguns, inverting the reality of what had happened in November when minimally armed left-wing protesters had been gunned down. Members of the CWP refused to testify, even emptied skunk oil in court. Two criminal trials ended in acquittals. Only in a third, civil trial, was one of the killings recorded as unlawful, after a jury found the City of Greensboro liable for the death of Michael Nathan (he, unlike the other antifascists, had not been a member of the CWP). The City of Greensboro, not the killers, paid the damages.

The Greensboro massacre took place at a dark time for the American far left. In the late 1960s, the example of leftist advance in China, Vietnam and Cuba had been attractive, far more so than in Britain (not least because the United States was in actual military contest with the second of these states – and losing). Through the 1970s such politics became less compelling. The countries concerned were now in conflict with each other, and one of them (China) was in alliance with the US. The jailing and murder of activists by the state encouraged burn-out and demoralisation and caused a rapid lurching between moderate and extreme forms of leftism. The space to demand everything, and to be both principled and popular, was shrinking.

(If you enjoyed this post, my book No Free Speech for Fascists: Exploring ‘No Platform’ in History, Law and Politics, is published by Routledge on 23 June).

A level playing field for tenants?


We face one of the most pro-landlord governments in history. The Parliamentary Under-Secretary of State for Housing, Eddie Hughes, is a landlord. The Prime Minister is a landlord. One in four Conservative MPs are landlords.

But there will still be some moments of opportunity when the press and politicians are compelled to engage with our proposals for reform. In the autumn, for example, the government will publish its proposals for the abolition of section 21

Tenants’ rights’ advocates have always known that you can’t abolish section 21 without rewriting other parts of our housing law.

1) What will happen to ground 8? The government wants to tighten it to make it easier to evict. But because of Covid and Covid-related rent arrears, the number of people with arrears of more than 8 weeks rent have rocketed. In those circumstances, the arguments for loosening ground 8 and giving tenants more chances to pay off their debts are overwhelming

2) And what about tenancy deposits? One of the considerable virtues of the present section 21 is that it has significantly reduced the long-standing disgrace of landlords taking deposits, holding them at the end of the tenancy, and forcing tenants to endure a bitter and hopeless battle to get their money back.

There has to be some mechanism, of similar force, to the rules currently in the Housing Act 1996 which mean that no section 21 notice can be served if a deposit was left unregistered.

Here’s a modest proposal: why not say that all notices are invalid: no section 8 notices can be given – if a deposit has been taken and not registered?

I also want to talk though about a vision to take us beyond the current crisis.

Plainly, at a certain basic level, you couldn’t ever have a level playing field between landlords and tenants. Or not in the housing market we have now, where in our largest cities it is normal for people to spend half their net income on housing.

Every landlord is renting over something inessential to them: the rent – the profit they can make – on their 2nd, their 3rd home, in some cases their 100th home. While very tenant is negotiating over something essential to them: the roof over their heads without which they cannot live.

The purpose of landlord and tenant is to moderate but not remove that essential inequality.

If it’s right that there is a limit to what the law can deliver, it follows that the sort of changes we should look for aren’t only laws to help tenants lawyers defend this or that case. What we need also are reforms which change the balance of power outside court.

Here are two examples I’ve been considering:

  • Simplification

Every housing lawyer will be familiar with the basic point that, when it comes to possession, a tenant’s rights and a landlord’s obligations depend entirely on what form of tenure applies. In the simplest example: most private landlord evict their tenants pursuant to section 21 of the Housing Act 1988, which means special notices, and the accelerated possession procedure. While most housing associations rely on section 8, meaning different notices, and the ordinary possession procedure.

The problem is the multiplication of tenures. There are different procedures to evict secure tenants, flexible tenants, introductory tenants, demoted tenants, student tenants, asylum seekers, tenants holding a property as a term of their employment, tenants of homeless housing, property guardians, and so on.

This multiplication of tenures means that it is almost impossible for the ordinary, well-informed tenant even with access to such resources as the Shelter website or Nearly Legal to say with any conviction whether – on the receipt of a notice telling them to leave – they have to go. Maybe they leave prematurely; maybe they employ a lawyer. But that will be at a cost to them (unless they are eligible for legal aid) which will be relatively greater to them than it will to the average landlord.

We should be arguing it for a massive simplification of housing law. That process could help tenants as much as any modest tweak to this or housing law.

  • Settlement / advisers

One of the things we have seen under Covid is that formal legal evictions came to an end. But more than 100,000 people were encouraged or compelled out of their homes. If we do abolish section 21, landlords won’t be able to evict at will, and tenants will stay in properties for longer. Where does that leave us in the situation where both sides have accrued rights: on the tenant’s side, disrepair or an unpaid deposit maybe, on the landlord’s side unpaid rent?

Often, we spend out time at court, negotiating very complex orders whose practical effect is that both sides “drop hands”. The disrepair extinguishes the debt; the tenant leaves – perhaps not as fast as the landlord would like.

One thing I’ve been mulling over is what happens in employment law when both sides negotiate a departure (a dismissal) with compensation. The deal isn’t binding unless the employee gets a solicitor or a union to sign it off. Usually the employer pays for that advice.

The compromise is reached before, and instead of litigation.

Should we lobby for something similar in housing law? It would give tenants a right to advice. Not necessarily to sue or counterclaim, but to ensure that everything is done right.

Such a reform would create a space not just for lawyers but also for tenants’ unions and tenants’ associations, social movements that are our natural allies.

To conclude: housing law has changed as much in the past year as it has ever changed. We can’t just take a defensive stance of resisting every change the government proposes. We need to have a vision of our own for housing law.

(If you’re interested in the ideas set out in this piece, I will be speaking at a meeting of the campaign group SHAC on Monday. Link here. You can also buy my book, Jobs and Homes, which was published by Legal Action group this spring and is available here or here).

Resisting Forstater and the push back against trans rights


Reaction to the decision of the Employment Appeal Tribunal (“EAT”) following Maya Forstater’s successful appeal has followed predictable lines. Opponents of trans rights have welcomed the decision, while on trans social media the most common reactions have been ones of anger and resignation.

The judgment deserves to be read more carefully than such immediate thoughts allow. It combines long pages of careful analysis with a single passage of carelessness. What I’ll try and do in this piece is (1) explain what the main part of the Forstater decision says and how it relates to the broader politics of “free speech”, (2) show how the judge dealt – in passing – with the more general issue of trans rights in equality law, and (3) explain why although the judge’s comments are likely to give encouragement to trans exclusionary positions, they are unlikely to settle over time as the main understanding of the law.

(1) Forstater and free speech

Forstater is a writer on sustainable development. She worked as contractor of CGD Europe, a US-based thinktank. Her contract was terminated. She says this was because of posts she had made referring to trans women as “men”.

At the first hearing, an Employment Judge had to consider whether Forstater’s beliefs were protected under the Equality Act. The Judge noted that, on her own account, Forstater held nuanced opinions. But she regarded people’s birth gender as immutable, and the decision as to what pronouns, etc, to use as her choice alone (“No one has the right to compel others to make statements they do not believe”). The Judge was astonished that she refused to recognise a trans woman as a woman, even in circumstances where that woman had gone through the lengthy and court-like process of acquiring a Gender Recognition Certificate. The Judge concluded that Forstater’s beliefs were “absolutist”, and should not be treated as protected beliefs for the purpose of the Equality Act.

This decision has now been reversed on appeal, which the Appeal Tribunal finding that beliefs such as Forstater’s could be protected under the Act, and it would be unlawful to discriminate against her on account of them.

In the UK, there is no general rule permitting absolute free speech in the workplace. When an employee is dismissed and seeks to challenge their dismissal in a Tribunal, the two main routes open to them are to say they were unfairly dismissed, or that they were dismissed because of a characteristic which is protected under the Equality Act, in other words, their race or gender, religion., etc.

A belief can be a protected characteristic under the Act. But which beliefs should qualify for protection is not simple. Everyone accepts that religions should qualify for protection; a Sikh should not be dismissed because of their religion. As for which other beliefs should qualify, this is a matter of caselaw (i.e. decisions made by judges not parliament).

Judges have settled on the following tests: a belief must be genuinely held. It must be a belief and not a mere viewpoint. It must be a belief as to a weighty and substantial aspect of human life and behaviour. It must attain a certain level of cogency and seriousness. It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

This last part of the test (referred to in the judgment as “Grainger V”) explains the different decisions in Forstater’s case. If a worker’s belief is that they are entitled to violate other people’s dignity at will, it would be strange to shield that worker from dismissal. In protecting such a worker, the courts would just be ensuring that their colleagues had to endure upsetting speech.

The purpose of the decision of the EAT is to maintain the tests set out above but to re-balance them in the direction of free speech. This, the Appeal Tribunal achieves this by drawing on two provisions of the European Court of Human Rights, article 10 which protects free speech, even for opinions which offend, shock or disturb, and article 17 which removes protection from any person who performs “any act aimed at the destruction of any of the rights and freedoms” of others.

The Appeal Tribunal ruled article 17 provided the “benchmark” in free speech cases. It follows that all opinions should be protected by free speech rules save for “the most extreme beliefs akin to Nazism or totalitarianism or which incite hatred or violence”. Maya Forstater’s opinions were not in this category; therefore she is protected.

An optimist would say that in drawing the line where he did, at the boundary-point of fascism, the judge was cutting with the grain of old positions in the free speech debate. He was expanding the category of opinions which require protection, even where those opinion are likely to annoy and offend but fall short of calling for the general silencing of everyone else. To that extent, the judgment takes a stance as old as Milton with his belief that it is legitimate only “to suppresse the suppressors themselves”.

A pessimist would reply that the judgment also fits just as well with the growing use on the centre-right of “free speech” as a wedge issue, to unite different kids of right-wing politics and to split apart a left which is divided along culture lines. Two of the most popular tweets in the judges’ support have come from Paul Embery and Douglas Murray. They take it as a sign that the culture wars are turning in their preferred direction.

And of course, there are other processes also pointing that way, not least the proposed Higher Education (Freedom of Speech) Bill.

In deciding the case as it did, the Appeal Tribunal did not set Forstater on a clear course for victory. It remains open to her employer to argue that it did not dismiss her for what she thought but for what she said. There are many opinions which are capable of protecting an employee, but which might not protect them in practice. Think for example of the belief that man-made climate change is an urgent threat to the survival of the world. This is a legitimate opinion and one capable of protection from discrimination. But if an employee of an oil company was to start tweeting that her employer was burning the planet, and the employer dismissed her, the business would say that they were not seeking to restrict their employee’s opinion simply guarding the reputation of their brand.

To say that an opinion is capable of protection is not guarantee that its holders will win their discrimination cases, it is merely to create the conditions so that there is a genuine issue to be tried and one capable of going either way.

(2) Forstater and the status of trans people in equality law

Almost all of the judgment is cogent and if, unwelcome to trans people, it was not unexpected. The most important problem with it is something the Judge addressed in passing. At page 48 of the decision in a footnote, the judge remarks that trans opinions, too, are protected in online debate, by section 7(2) of the Equality Act.

The Act provides that a person has the protected characteristic of gender reassignment if they are proposing to undergo, is undergoing or has undergone “a process … for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.

Until now, lawyers have always understood that any trans person goes through a process (or several processes): at one point they are perceived as having a certain sex, and at another point they are perceived as having a different sex/no sex/many sexes, etc. And the journey undergone by trans people to be reassigned might be any sort of informal process, eg applying to your employer to change your work ID, etc etc.

At the top of the judgment, the judge wrote, that although the protected characteristic of gender reassignment under s.7, EqA “would be likely to apply only to a proportion of trans persons…” suggesting that, in his opinion, section 7 does not apply to most trans people, and only applies to people applying for a Gender Recognition Certificate.

If other judges are to conclude that these offhand remarks are binding then the result would be a step backwards for trans lives, stripping away rights which many civil courts have until now applied to all trans people without question.

Many people have read this part of the decision and been troubled by it. What I want to argue here is that even if anti-trans advocates start quoting the President of the EAT, and arguing that he is right and that trans people have or should have no protection under the Act, probably, their arguments will lose.

(3) Forstater and the future of trans rights

Therefore, in the third and final section of the piece, I want to set out why, I still think not merely that the President of the EAT is misguided, but why it should be relatively easy to persuade other judges that he was wrong.

(i) “Dicta”

The President of the EAT is an important judge in the courts and tribunal system, but even his authority is limited. The sentence, “Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons…” forms no part of his actual decision, and was wholly irrelevant to the case he had to decide, which was simply about how far the Equality Act goes to protect trans exclusionary opinions. As lawyers, when a judge comments on something outside the main body of the case we call this “obiter dicta” and it is not binding on lower courts, no matter how senior the judge.

(ii) Contradicts the reasons given when passing the bill

This issue was discussed in Parliament before the bill was passed and ministers gave the clearest possible account of who the bill was intended to protect. The Solicitor-General was asked who section 7 was meant to cover.

Lynne Featherstone MP asked, “I have constituents who are indeterminate and would not necessarily be identified as gender reassigned or as one sex or the other. They are somewhere in between and unidentifiable physically. I want to make sure that those people are protected. They may not even be on a journey; they may just be indeterminate in their gender identity, so there is no reassignment at all. Would that be covered?”

The Solicitor General responded, “First, the medical definition in subsection (1)(a) is undoubtedly covered by our clause. Secondly, a person living permanently in the gender role other than their birth sex is covered. Thirdly, somebody who has received gender recognition would obviously be covered, and fourthly, somebody “who has a gender identity that is different from that expected of a person of their recorded natal sex”, is covered too. Where is the deficiency in our clause? Each and every one of those cases is covered, and I have said that at least 15 times.”

Parliamentary language would not have more weight in court than a reasoned decision by the President of the EAT; it does have more weight than mere off-the-cuff remarks by them.

(iii) unlike the President, other judges have had to deal with this issue

For example, in Taylor v Jaguar, the Employment Tribunal addressed this issue and found that non-binary people were covered by the Act (see section 173 here). The decision of an Employment Judge at first instance would not normally have more weight in court than a reasoned decision by the President of the EAT; but it does have more weight than mere off-the-cuff remarks by the President.

(iv) If you read the section clearly, it is plain that it intended to cover most/all trans people

If the point of section 7 was, as the President seems to have guessed, to protect people in or contemplating an application to the Gender Recognition Panel (GRP), the drafters would have used different language.

At no point does section 7 refer to that panel. The section could have done, and didn’t.

The section does not even use language which could refer to the panel only. If you look again at the words, “A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex,” there are three clear signs that the drafters intended to look beyond the Panel.

First, they spoke of “a” process, not “the” process. IE suggesting they believed that more than one kind of process was available.

Second, they referred to “part of a process”, IE suggesting that to satisfy the definition of section 7 you did not need to have to be considering even a whole process, but only part of a process. (EG approaching a doctor to ask for a diagnosis of gender dysphoria, which might in turn be used for any different kind of formal or informal process later).

Third, the section refers to “other attributes” of sex than the physiological – eg new clothes, or changing other visible markers of sex or gender, which is a much broader process than approaching the GRP for a certificate.

(These last two points were accepted by the Tribunal in Taylor v Jaguar)

(v) The President’s “solution” to section 7 was over-complicated, artificial and simply makes no sense of how the Equality Act works, or is intended to work

The judge grasped that interpreting section in the way that seemed obvious to him would have negative consequences for trans rights.

The judge therefore wrote in a footnote that if section 7 was understood in the narrow way he assumed it had to be such an understanding should not concern trans people since “A trans person could potentially bring a claim for harassment related to gender reassignment (where the definition under s.7(2) is satisfied), sex (see e.g. P v S and Cornwall County Council [1996] ICR 795 at paras 17 to 22), disability based on the conditions of Gender Dysphoria or Gender Identity Disorder (see EHRC Code at para 2.28), or even a philosophical belief that gender identity is paramount and that a trans woman is woman”

The judge insisted that trans people could not lose out from his judgment for if it protected anti-trans opinions then it must also protect pro-trans opinions.

That would true but misses the point. In designating that trans people have no rights under the Equality Act save for the small minority who have applied for a Gender Recognition Certificate, the Appeal Tribunal would be encouraging other judges to hold that most of the time most trans people have no rights. It would follow that a non-binary person asking their employer to permit a gender-neutral uniform has no right to ask. A landlord could evict a trans tenant who was just living silently in their home.

I doubt many people would understand the law as the Judge tried to explain it – i.e. that right-wing, even far-right, activists have a protected status in the law (so long as they are not actual fascists) but most of the time, in most circumstances, most trans people don’t.

Moreover, some of the example he gives of when trans people would be protected are patronising and bear no real reality to trans lives. For example, his suggestion that a trans person suffering GID could label themselves disabled and demand protection on that basis, would protect some trans people. But if you ask most trans people “do you consider yourself disabled?” the vast majority would answer – rightly – of course I don’t.

They want, and the law gives them, protection as trans people.

All this mess comes, ironically, from an effort by the Judge to explain that trans rights were protected and that his decision did nothing to infringe them.

If that was his intention then a much simpler more practical way to do that would have been either to keep silent, or to go along with the ordinary interpretation of section 7, one which (as I indicate above) was, after all, what ministers said when explaining the Act.

In conclusion, this was some loose indeed careless wording by a senior judge. It is most likely that other judges will simply ignore it. If they don’t, and this becomes a live argument, I hope that by collecting together in one place the above points this post will be of assistance to other lawyers and to trans people fighting for equality in their own lives.