Freedom of speech is a wonderful thing which in western countries is often taken for granted. The sad truth is that it is increasingly abused to target others, silence minorities and gain power. Put it bluntly, freedom of speech is easily abused. Part of this is the misunderstanding that freedom of speech automatically means that all opinions are equally valid and that people voicing their views should never be held accountable. This highlights the philosophical problem at the core of any discussion of freedom of speech and the nature of any proposed limitations like hate speech legislation.

Freedom of speech on a philosophical level (stay with me this is a bit dense)

The idea of freedom of speech has always been connected to democratic principles so unsurprisingly traces its beginnings to Ancient Greece and specifically Athens. Of course, as the Greek world became dominated by Rome and the spread of dynastic rule alongside the spread of Christianity, these principals were quickly quashed by authoritarianism. Even with the collapse of the Roman Empire and Middle Ages in Europe, the desire to maintain and centralise power meant freedom of speech was effectively suppressed whether directly through means of imprisonment and execution or using superstition. Afterall during this period a lack of education, dependence on feudal lords and the dominance of the Catholic Church made it difficult for anyone to question the ideas of the ruling class. However, this began to change with the protestant reformation in the 16th century and the period of enlightenment that followed.

During this period, innovative ideas began to challenge the dominant discourse of the period and there was a movement away from blindly accepting the old traditions. The development of the modern concept of freedom of speech can start to be seen in the works of Milton, hardly a modern progressive when it came to religion, he did articulate the idea of a “pursuit of truth through exposure to false and heretical ideas rather than the passive reception of orthodoxy”. This notion requires the freedom to express a range of ideas to identify the correct view. Similarly, John Stuart Mill writing about 200 years later also was based on the idea that Freedom of speech was based on facilitating a search for truth and knowledge, so he therefore saw the value in “subjecting ideas to contradiction”. During the enlightenment which obviously influence the development of the United States constitution that the predominate perception of freedom of speech was that it was a means of finding truth through the scrutiny of debate and alternative ideas, it therefore never necessarily meant that all ideas were equally valid.

In a more modern context this concept of a search for truth as being justification for freedom of speech is still widely supported by modern theorists and legal minds. However, in the context of the ‘post-truth’ age accepting the principle of enlightenment that a marketplace model where contradictory ideas will reveal the truth becomes highly problematic for William P Marshell. In several instances he identifies many flaws in this model both in the “problems of public irrationality and apathy as well as the difficulties in identifying the normative appeal of truth.” Due to these problems, he advocated for a more a knowledge-based approach to free speech. “In which the more fundamental disagreement and doubt is about which sources, practices, and institutions provide reliable or otherwise desirable information.” Once again, this approach to freedom of speech still clearly suggests that not all ideas are equally valid or should be considered depending on the justification for the belief.

This search for truth is of course not the only consideration in discussing freedom of speech, as Marshell and others have suggested ‘public irrationality’ and other factors like the influence of power can impact the marketplace. In this context this means that historical ideas that we unanimously consider to be wrong today gained public support and were accepted as truth. The most obvious example of this is Hitler’s Anti-Semitism and Nazism in general but also more broadly eugenics which was popular across various parts of the western world including the US & Australia throughout the 1930s. Now a knowledge – based approach potentially could have effectively debunked these ideas at time however it is restricted by the evidence available. It is not surprising then that Dieter Gramm a German Scholar on constitutional law advocates for a dignity – based conception of freedom of speech. In this model freedom of speech is seen serving a higher value and the development of human dignity from this viewpoint sharing opinions provides value through the development of self but also this justifies limitations on speech when it impacts the dignity of others.

My perspective on freedom of speech

Philosophically, for myself I see that the balance of freedom of speech sits within a combination of Gramm’s dignity – based concept and Marshell’s knowledge – based approach. That freedom of speech can allow for an understanding or perception of truth based on an effective justification of evidence but that this should be tempered by preserving the human dignity of diverse groups in society, because primarily knowledge is limited by our level of scientific and metaphysical development. This means we do not abandon a search for truth on specific issues but that we are safe guarded against further atrocities. This of course fits more broadly with my broader philosophy that everyone has certain inalienable rights but that exercising these rights should not impact negatively on others.

Considering this while I am a passionate advocate for freedom of speech it is based on this principle and therefore, I am in favour of limitations through hate speech legislation. Law for me is a balancing act in so many ways. In this case, the right of an individual to voice their opinions can conflict with the right of others to be safe and free from discrimination, the latter must take priority. In an ideal world this could be handled by the marketplace with society invalidating ideas that impinge on the rights of others rather than government. However, factors like unequal access to education, religious beliefs, the influence of authority or prominent figures, peer pressure and self-interest means that this is impossible. Despite this I am not an advocate for censorship or suppression in the totalitarian sense but rather believe in consequence. That people are free to voice their opinions but that they must be ready to accept the consequences and responsibility for the ongoing effect they may have, therefore spreading hate speech that leads to death threats and impacts the safety of someone else should incur a penalty.

Bottom line – Not all opinions are valid

Implicit with this belief is that our society should not be validating all opinions. Firstly, because of a knowledge-based approach to expressing opinions as a search for truth many views lack suitable evidence. They should be voiced, discussed, and scrutinised as part of this search for truth. The evidence available to support those ideas should be checked, verified, and questioned. This is the value in having different opinions that we are forced to evaluate against each other and work out which makes more sense. However, once this is clear and the weight of evidence clearly supports certain views the others are no longer valid, discarded possibilities. Regardless of how loudly these views are shouted or who is telling them society and government should not be treating them as reasonable. Afterall this would go against the basic philosophical principles of freedom of speech.

Alternatively, in cases where science and evidence are more divided or even conceptionally underdeveloped and we have a currently limited basis of knowledge. The preservation of human dignity should take precedence. In these cases, views that diminish the experience of others, attempt to deny individual personhood, strip away human rights or even vilify specific groups should never be considered valid. We have enough evidence in our history to demonstrate that such views are based on prejudice and are often spread for political gain through propaganda. If we learn anything from WW2, the Civil Rights movement, Apartheid or let’s face the thousands of years of human history. Treating these views as valid is dangerous. We should be smart enough now to stop doing it.

Let’s start by invalidating the ‘Gender Critical’ ideological nonsense.

These people attempt desperately to represent their views as reasonable and repeatedly call on a basic high school concept of biology or reference scientific studies. However, once these assertions are tested, they do fail to stand up under rigorous scrutiny. Firstly, these assertions attempt to frame the discussion of transgender identities in terms of biological sex rather than gender and then rely on the simple view that sex chromosomes determine all aspects of sex. The problem in such a simplistic view is that it assumes that all characteristics are coded for by these chromosomes which is not scientifically accurate and struggles to address variation in the form of DSD by attempting to classify individuals into a gender binary. Secondly, in their attempt to assert this simplified version of biology and collate Gender with Sex they similarly ignore evidence that does not support their preconceived beliefs such as numerous studies which show a biological basis for transgender identities including the potential impact of gene varients and influence of structural connections in the brain. The ongoing development of this research and what we know of human biology demonstrates while we may still be lacking a definite conclusion regarding the biological cause of transgender identities that a simplistic and outdated view that sex chromosomes code for all gender-based traits is inexplicable invalid.

These gender critics do not rely on this simplistic biological interpretation as the basis for their standpoint, but they also attempt to present the increased visibility of trans identities as a social contagion. In this situation they have continuously proposed the theory of Rapid Onset Gender Dysphoria which was proposed by Littman back in 2017. However, this ‘theory’ which captured major media attention and has been continually prompted by those following a Gender Critical ideology has been effectively debunked by numerous other studies and questions of poor research methodology led to an extensive review and edit of the study highlighting Littman’s reliance on ‘indirect evidence’ and the clear recruitment through websites that ‘might attract parents who are more likely to question their child’s gender self-identification’ and therefore represent a degree of bias. Since then, more research has disproven Littman’s hypothesis of ROGD to the extent that Wikipedia identifies it as a “scientifically unsupported” theory. Even despite the repeated failure of ROGD and similar ideas to stand up to rigorous scientific and peer scrutiny there is still a clear trend to validate this idea as an alternative to looking for a biological explanation for transgender identities. However, applying a knowledge – based test similarly doesn’t have the credibility or evidence to be considered plausible.

The most upsetting element of gender critical perversion of science to justify their views tends to land on an attack on medical treatment. In this case everyone from authors, politicians, media personalities, athletes and lawyers seem to attempt to position themselves as a medical professional. These prominent voices tend to loudly ask questions about gender affirming care and lack of longitudinal studies, (an impossiblity considering the availability of gender affirming care in the last 50 years). Due to this limitation of research, there is a clear attempt to invalidate care as risky despite the safeguards and monitoring of health care professionals. The danger here is without looking at the evidence we do have available and the position of exports it might even seem logical. Yet, despite this absence of research every major medical association in America and a wealth of research demonstrate that experts in medical care and scientific research advocate for gender affirming care. The answer to this for gender critics now is the WPATH files which they have represented as a credible report that validates some of their concerns but is in reality a blatant piece of editorial writing not a peer reviewed critic of practices and can easily be debunked. Based on this disparity of professional support for gender affirming care alone the views of gender critics should have been dumped a long time ago. Yet society wants to pander to conspiracy theorists and allow political opportunists that find trans issues an effective distraction a platform to spread this misinformation.

Even if the wealth of scientific evidence and credible research did not disprove gender critical ideas, the ongoing attack on human dignity and rejection of lived experience should have invalidated this prejudiced ideology a long time ago. The Gender Critics have relentless denied the existence of trans identities, an assertion that is laughable since there is historical evidence that predates all the Abrahamic religions as well as the current lived experience of trans people like me. Beyond this GCs and TERFs will regularly label trans people as sexual predators and pedophiles, a similar tactic used by the Nazis, to justify preventing access to toilets and dressing rooms. The fact that between 1999 to 2017 there was a total of 21 sexual assaults related to trans gender inclusion is hardly justification for such fear mongering especially considering in this period there was a total of 5 490 150 assaults in the US. It seems to me that there are a lot more situations were women face a greater likelihood of sexual violence. This data does not support the denial of rights continually pushed by these gender critics and reveals that these bathroom bans are not about protecting anyone but an attack on the trans community. This attack on our dignity continues on a daily basis through misgendering, deadnaming, discrimination and a rejection of fact. Recently even reaching new heights with Holocaust denial to further reject every aspect of our experience including our suffering. The fact that these Gender critical ideas are based on rejecting our very existence and often use this basis for ongoing attacks on our rights means they should have no place in our society.

So, what does this mean

If we consider the two principles of freedom of speech there are clearly certain ideas in our society that do not meet a respectable standard of evidence or human decency. Therefore, we should stop validating these ideas like gender critical beliefs after all the aren’t far off flat earthers and like those that express racist ideas should be left to face the consequences of their views and not defended by people smart enough to know better.