It was recently reported that in response to severe financial pressure Police Scotland is looking to cut 600 officers and 200 staff in the year ahead. The force is also considering the closure of 30 police stations and halting probationer recruitment. In a stark warning the Scottish Police Federation stated this could lead to members of the public dying.
Adding to the demand placed on frontline officers next year, the Hate Crime and Public Order (Scotland) Act, passed in March 2021, is finally planned to be brought into full force in February 2024. This will include its most controversial provision; the extension of the offence of ‘stirring up hatred’ from race to a wider range of characteristics including transgender identity, and from public to private settings.
Once in force, Police Scotland faces a potential deluge of complaints relating to differences of belief on sex and gender. It is difficult to overstate how easily triggered accusations of hate in this area already are. During the passage of the Hate Crime and Public Order Bill, a mildly drafted freedom of expression amendment lodged and then withdrawn by the then Justice Secretary Humza Yousaf MSP was described by a Green Party activist as ‘pandering to transphobia ’. The Committee Convenor Adam Tomkins MSP said he was ‘afraid’ at the reaction to proposed amendments to the Bill.
As we explained to MSPs when the Bill went through, women across the UK have already lost their jobs, faced disciplinary action, been interviewed by the police, and had details recorded on police databases for asserting that biological sex matters. Following reports of stickers found on campus with slogans such as ‘Female is a biological reality’, the University of Edinburgh principal promised that those responsible for the stickers would be traced by CCTV and disciplined, and confirmed that Police Scotland had been contacted. In May 2021 Kirkcaldy Police tweeted that it had ‘received a report of controversial stickers’, some of which referenced the Hate Crime Bill.
In responding to complaints under the new Act, police officers will be required to apply a subjective test as to whether a ‘reasonable person’ would find something ‘threatening or abusive’ and whether there was any intention to stir up hatred. Many complaints may not meet the threshold for prosecution or conviction, which MSPs were repeatedly reassured would be high. Triaging these nonetheless has potential to generate substantial new work for a police service that is already under pressure.
Training for frontline officers on the new Act appears limited largely to an online package (page 62). Over the last two years neither the Scottish Government nor Police Scotland has instigated any contact with those who expressed concern about how the stirring up provisions on transgender identity might be implemented. The government has also reneged on a promise made by Humza Yousef, at a late stage in the Bill process, to give concerned stakeholders, including ourselves, some post-legislative input.
Training has instead been developed in partnership with the Scottish Government’s Hate Crime Strategic Partnership Group. This includes the Equality Network, which has previously described those arguing for a separate sex and gender identity question in the census as ‘anti-trans lobbyists’. The same organisation has also previously provided training on hate crime to Police Scotland and the Crown Office and Prosecution Service, aimed at increasing the reporting of incidents.
Police Scotland already has a record of prioritising perspectives that treat the idea of gender identity as an uncontested fact, and as more important than the material reality of sex. It has, for example, developed a resource which links to materials that tell officers sex is on a spectrum and that referring to a person’s sex can have ‘severe unintended consequences’. The Police Scotland’s LGBT Allies Toolkit encourages officers to sign an Allies pledge and ‘evangelise’ their allyship. It remains wedded to the extraordinary position that recording the preferred gender identity of men charged with rape is in line with its ‘values’.
The service appears resistant to acknowledging any legitimate difference of perspective here. It has, for example, blocked its staff’s access to our website and to at least one other feminist organisation which does not share its position on gender identity.
All of this does not instil confidence. Against a backdrop of intense financial pressure, Police Scotland needs to provide its officers with a robust strategy to weed out complaints relating to transgender identity which fall well below the high threshold MSPs were told they were voting for. Women fearful of being contacted by the police, or having their details recorded for expressing the ordinary, and legally protected, view that sex matters likewise need reassurance that such a strategy is in place.
During the passage of the Bill several MSPs referred to the words of Lord Justice Sedley: “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative… Freedom only to speak inoffensively is not worth having.” It should not be seen as any of these things, let alone hateful, to say that sex is real and matters. But Police Scotland has adopted policies and practices influenced by the idea that it is, and has frozen out any other view.
Bringing the Act fully into force will need further secondary legislation making in the Scottish Parliament. This means that there is still an opportunity for further parliamentary scrutiny: by the Committee overseeing the secondary legislation, and potentially in the Chamber.
We think that MSPs should not agree to bring the stirring up hatred provisions into force until they have seen the training material and guidance material being provided to officers. The decision to proceed here now will be theirs alone: before taking it, they should be thoroughly satisfied that Police Scotland has adequate systems in place both to protect its increasingly stretched resources and to prevent the chilling of legitimate speech.
This article was first published in Holyrood Magazine, 27 October 2023