Hate Crime and Public Order Bill: Stage 2 Briefing. The need for tailored freedom of expression protection for transgender identity (January 2021)

Hate Crime and Public Order Bill: Stage 2 Briefing. The need for tailored freedom of expression protection for transgender identity.

The Hate Crime and Public Order (Scotland) Bill proposes to introduce stirring up hatred offences for all the protected characteristics in the Bill (age, disability, race, religion, sexual orientation, transgender identity and variations in sex characteristics). Of these, the Bill as introduced only provided freedom of expression protections in relation to religion and sexual orientation.

The Justice Committee has considered what impact the new stirring up offence might have on current debates about sex and gender identity. Its Stage 1 report noted:

“The Bill should not criminalise speech that others may find offensive…. even if such behaviour or speech is insulting, it should not meet the criminal threshold unless it is also threatening or abusive…. Further …the new offence of stirring-up hatred as regards transgender identity will be committed only if the Crown can prove that the accused acted with the intent to stir up hatred…. Parliament will have to judge whether, in its view, these safeguards are sufficient to ensure that public and vigorous debate on matters such as gender recognition and women’s rights can take place untouched by this Bill.”

The witness for the Scottish Trans Alliance told the Committee:

“It is really important that we focus the conversation on the fact that we are talking about a piece of legislation that talks about the tiny subset of behaviour that elevates to being something criminal…. There has been robust political debate for years and years about the roles that different groups play in society and we would never, ever support any legislation that would put any damper on those discussions  …  I have been subject to a fair bit of debate that makes me extremely uncomfortable and which is often very disrespectful of my identity, yet I would not encourage that behaviour to be made criminal.”

The Committee heard concerns that despite these aspirations, in practice the Bill risks having unintended consequences in this area, because of the wide definition now often given to “hate”. The equivalent legislation for England and Wales anticipated where the intended effect of the law was most likely to become controversial, before cases enter the criminal justice system and are formally subject to the tests applying in law. It included tailored freedom of expression statements for each characteristic, to reduce the risk of unintended consequences. We have argued for the same model here.

The Cabinet Secretary for Justice, Humza Yousaf MSP, has now lodged amendments that, if passed, will provide freedom of expression protections in relation to age, … and transgender identity. In relation to the latter, the proposed amendment states:

“Behaviour or material is not to be taken to be threatening or abusive solely on the basis that it involves or includes discussion or criticism of matters relating to transgender identity.”

As discussed in this blog, Liam Kerr MSP has lodged a more detailed freedom of expression amendment for transgender identity, which sets out in precise terms what would not fall within the scope of stirring up hatred on the basis of transgender identity. This states:

“Behaviour or material is not to be taken to be threatening or abusive or as stirring up hatred solely on the basis that it involves or includes—

(a) discussion, criticism or rejection of any concepts or beliefs relating to transgender identity,
(b) questioning whether any person should undergo, or should have undergone, a process of gender reassignment,
(c) stating that sex is an immutable biological characteristic,
(d) stating that there are only two sexes,
(e) the use of—

(i) “woman” or “man” and equivalent terms,
(ii) third person pronouns
in a way other than that which a person prefers, or

(f) reference to any past name used by a person.”

Our Stage 2 briefing shows why this tailored approach is necessary. We set out forty real-world examples that demonstrate how low the threshold for behaviour or communications considered to be abusive already is. Remarkably, this includes the freedom of expression amendments respectively lodged by Mr Yousaf and Mr Kerr, the first of which has already been described as a ‘transphobes charter’.

The examples demonstrate how it can be deemed or transphobic to advocate for female-only spaces and services, or to collect data on biological sex. They show that women across the UK have already faced serious consequences for asserting that biological sex matters: they have lost their jobs, faced disciplinary action, been interviewed by the police, and had details recorded on police databases.

While the Justice Secretary has sought to assure MSPs that the Hate Crime Bill would not be used to criminalise the belief that biological sex is immutable, we think the chilling effects of the Bill will be felt at a much earlier stage. We concur with the Scottish Police Federation that ‘people are already frightened to enter the trans debate’, and anticipate that the Bill will reinforce the self-censorship and institutional caution that is already evident in this area.

Based on the examples in our briefing, we also expect reporting to the police to increase, and that institutions, police, and prosecutors will come under pressure to block, investigate, or prosecute statements advocating for sex-based rights.

It is clear from our examples that a generic freedom of expression (such as the amendment proposed by Liam McArthur MSP and supported by the Equality Network) would not mitigate these risks. Rather we believe that the Bill requires the type of detail that is laid out in Mr Kerr’s amendment, and specifically tailored to the exceptional climate around current debates about sex and gender identity.

Sex as a protected characteristic
In our note to Committee Members, we stated that we also hoped that the Committee would support the amendments in the name of Johann Lamont MSP (amendments 31, 89, 93 and 97) which would add sex as a protected characteristic, making its inclusion the default position until any further proposals are developed. We have previously argued that this would mean, at minimum, that public information campaigns would no longer imply that hatred based on sex is less serious than other forms, and statistics on the amount of offending motivated by hate could begin to be collected.