Forensic Fables for the 21st Century #1 – Is it defamatory to call someone gay?

My attention was recently drawn to an extraordinary opinion by which, it appears, the Bar Standards Board of England and Wales (BSB) sets great store.

This curious document, penned by shipping specialist Julia Dias QC as recently as December 2017, states that it is “offensive and potentially defamatory” to suggest that someone may be gay.

Indeed, to do so can amount to professional misconduct, in her (and the BSB’s) book.

Well I never.

Julia Dias QC is undeniably a very clever woman. She was one year above me at Trinity Hall, and took a Triple First in law (a fact still proudly recorded on her chambers website entry, nearly forty years later. Ah, ces gloires du passé!).

Unfortunately, it seems that Ms Dias may just possibly have been reaching deep into her memory bank, and recalling whiskery old tort lectures from the late 1970s.

In an earlier era, when sexual activity between men was a criminal offence, to suggest that a man was gay was to impute criminal activity to him. That was unquestionably defamatory, unless (as Oscar Wilde learnt to his cost in 1895) the imputation was true.

Truth is a defence to a libel action. That is because – rightly – the law in the United Kingdom regards freedom to report the truth as a fundamental right.

By contrast, it has never been a criminal offence to engage in lesbian activity in the United Kingdom. So any imputation of female homosexuality could not carry the same sting.

As the erudite Ms Dias – and the not so erudite BSB – must surely know, the 1957 Wolfenden Report recommended that homosexual behaviour between consenting male adults in private should no longer be a criminal offence. It further concluded that “homosexuality cannot legitimately be regarded as a disease….”.

That Report led to the Sexual Offences Amendment Act 1967, which set the age of consent for homosexual acts in private between men at 21. The age of consent for gay men in the UK was further reduced from 21 to 18 in 1994, and to 16 in 2001.

The BSB is constantly asking us to accept its commitment to Diversity and Equality.

And yet, below the radar, it evidently endorses Dias’ disappointingly old-fashioned views on homosexuality.

How very regressive.

I’m concerned.

Over twenty years ago, while I was Press Officer and Committee member of the Association of Women Barristers, and an elected Bar Council member, I whole-heartedly supported the fledgling Bar Lesbian and Gay Group (BLAGG), and its chair, Martin Bowley QC.

As my record makes obvious, I care deeply about equality. Unlike many passive virtue-signallers who like to ride bandwagons, I am from a generation which actually set out to make a difference.

Perhaps the BSB might care to consult BLAGG with a view to obtaining some awareness (or, as I expect it is called nowadays, sensitivity) training?

Ms Dias could pop along too. I am sure she would learn something. We all can, ca’n’t we?

Moral: Shipping lawyers might care to steer clear of defamation law.

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