Phillimore: Freedom of expression
The Bar Standards Board (BSB) has decided not to investigate a gender-critical barrister who was accused of being transphobic by misgendering two trans lawyers.
The regulator said the tweets by Sarah Phillimore attracted “a high level of protection” under article 10 of the European Convention on Human Rights (freedom of expression).
Its letter, published by the St Johns Chambers barrister on X (formerly Twitter), said: “We do not consider in the context of the back and forth between the parties that the posts were seriously offensive.
“Given that the remarks were made out of work and were connected to discussions on gender critical theory, the BSB will not take any further action in this case.”
The complaints were that, earlier this year, Ms Phillimore used the pronoun “him” in relation to Dr Victoria McCloud – a Queen’s/King’s Bench master for 14 years – and Robin Moira White, a barrister at Old Square Chambers, and also referred to Dr McCloud as “this man”.
Ms Phillimore also said she doubted that Dr McCloud could act fairly in a case concerning gender-critical views.
The BSB said: “In line with the BSB’s board paper on [the] Conduct in Non-Professional Life Project, the BSB has decided that it will not ally itself with one side over the other in the gender debate.
“We appreciate that there is an ongoing, complex and rapidly changing debate about views on the immutability of gender and the rights of transgender people, and this debate is political in nature (meaning expressions concerning this debate are likely to be afforded a high level of protection) and that equality issues in this area may intersect with human rights considerations, such as article 9 (freedom of thought, belief and religion) and article 10.
“We also recognise that gender-critical views as well as the belief that a person can change their sex or gender are both capable of amounting to philosophical beliefs which are protected under the Equality Act 2010.
“There may be some tension between the protection afforded to those with gender-critical views and the rights of transgender people not to be discriminated against, harassed or victimised on the basis of gender reassignment.”
We reported last year [1] that the BSB dropped a case study from its revised social media guidance concerning gender-critical views after it was accused of promoting a ‘gender ideology’.
But the regulator stressed that this did not mean it would “never be interested in barristers’ conduct involving the gender debate, the expression of philosophical beliefs, or deliberately misgendering a transgender person”.
In her LinkedIn profile, Dr McCloud says she was “hailed in 2024 by a member of the Bar (Ms Sarah Phillimore, St John’s Chambers, Bristol) as a ‘direct & dangerous threat to our democracy & respect for the rule of law’, and apparently an example of setting a ‘low bar’ for appointment of judges, which I shall emblazon on my coat of arms should I ever have any”.
Ms Phillimore said in response to the BSB decision that “a very interesting dissonance is brewing” between the view of the BSB and that of Scotland’s new Hate Crime and Public Order (Scotland) Act 2021, which came into force yesterday.
The Act has been criticised for not including women in the list of groups protected by the legislation and led to claims that gender-critical women could face arrest.
Yesterday, author JK Rowling described a series of high-profile transgender people – including convicted criminals – as men and said: “I’m currently out of the country, but if what I’ve written here qualifies as an offence under the terms of the new act, I look forward to being arrested when I return to the birthplace of the Scottish Enlightenment.”
Ms Phillimore is also a co-founder of Fair Cop, a group campaigning over the police’s approach to those who express criticism of transgender activism.