“It would upset the transgender lobby”
During the passage of the Hate Crime and Public Order (Scotland) Act, one of the most contentious areas of debate related to the provision for ‘stirring up hatred’ on the basis of transgender identity. The key legal test for this is whether a ‘reasonable person’ would find a person’s conduct ‘threatening’ or ‘abusive’, and whether there was ‘intent’ to ‘stir up hatred’.
What might a ‘reasonable person’ interpret as ‘abusive’?
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 those responsible 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.
Added to this, Police Scotland has a track 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. That it allows men accused or charged with rape to be recorded as women is a case in point.
Set against this febrile backdrop, we and others continued to raise concerns as to what frontline officers might think a ‘reasonable person’ would count as ‘abusive’.
Adding tailored protections for freedom of speech
To address this risk, at Stage 2, MSPs put forward several tailored freedom of expression amendments. The most detailed was proposed by Scottish Conservative MSP Liam Kerr. This took as a model the existing specific provision for sexual orientation in legislation for England and Wales (which requires any behaviour to be ‘threatening and abusive’). It stated:
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.
Scottish Labour MSP Rhoda Grant MSP put down the following amendment:
Behaviour or material is not taken to be threatening or abusive when it is for the purpose of advocating for women’s rights.
And a mildly worded amendment was put forward by the then Justice Secretary Humza Yousaf.
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.
A hasty retreat
The above amendments prompted a backlash from transactivists and a hasty retreat by the respective political parties.
The Justice Committee convenor, Adam Tomkins MSP, stated that he was “a little afraid” by the response.
The Justice Secretary apologised for any hurt caused by singling out particular characteristics, and stated that with agreement of the opposition parties, the tailored amendments would be withdrawn.
A second chance at legal clarity
At Stage 3, a tailored amendment put forward by Scottish Labour MSP Johann Lamont sought again, to put on the face of Act, a short list of items that, in themselves, would not be viewed as criminally abusive or threatening. For example, the fact that sex is a physical binary characteristic that cannot be changed.
She also suggested other ways to improve the protection for freedom of expression here:
Another retreat
The approach in 11B, and all other suggested amendments, was dismissed by the Criminal Justice Convenor and Justice Secretary as unnecessary. Scottish Green Party MSP Patrick Harvie described the amendments as hostile and legitimising attacks on trans rights (see further here). Citing a briefing by the Equality Network, his colleague and fellow Scottish Green Party MSP John Finnie stated:
As the Equality Network said, “to add into legislation a list of ‘approved’ statements that include attacks on the fundamental rights of one group of people is entirely wrong.” I agree.
A final opportunity
At a hastily scheduled additional oral evidence session on freedom of speech which took place on 22 February 2021, Humza Yousaf MSP promised to Parliament that he would involve worried stakeholders, including ourselves, in the drafting of the Explanatory Notes to accompany the Bill. Whilst holding no legal status, these would provide examples of what type of statement was not intended to be caught by the Act.
A final retreat
On 15 March 2021, after the Bill had passed, we contacted the Scottish Government to inquire about next steps. Officials responded on the same day and stated that we would be involved. In January 2022 were advised that ‘the Scottish Government will be in touch once there are any developments in this specific area’. On 8 March 2022, International Women’s Day, we received a letter by email with a copy of the finalised Explanatory Notes. This thread has more detail.
Despite the assurance made to the Committee by the Justice Secretary, and followed up in writing, the Scottish Government did not engage with us at any stage. A promise made to the Committee was broken.
As now revealed by Alba MSP Ash Regan, who at the time the Bill passed was Community Justice Minister, the Government did not follow through on its promise to engage concerned stakeholders in the development of Explanatory Notes because they felt, in her words, that there would ‘nothing to gain’ from doing this, and also because it did not want to ‘upset the transgender lobby’ – most probably the same groups that lobbied against putting protections on the face of the Act itself.
In December 2021, we drew the Scottish Government’s attention to the view of the Law Commission for England and Wales. The Commission stated that legislating for a new stirring up offence in this area raised especially sensitive issues around freedom of expression. The Commission recommended that if any legislation was ever undertaken on this south of the border then:
in extending the stirring up offences to cover hatred towards trans or gender diverse people, a new protection should be introduced for view that sex is binary and immutable, and the use of language which expresses this.(para 10.539)
There was no response to this letter.
“It would upset the transgender lobby”
The Hate Crime and Public Order (Scotland) Act 2021 has had an exceptionally stormy start to its implementation.
In addition to a lack of legal clarity as to what a ‘reasonable person’ might think ‘abusive’ in the heated context of the debate on sex and gender identity, it also transpires that Police Scotland are under-prepared and under-resourced, and that some officers remain untrained. That it could not provide a copy of its updated guidance for officers to the Criminal Justice Committee should seriously worry MSPs.
The anger now being directed at the Scottish Government was mostly avoidable. Parliament could have put clarity on the face of the Act, as proposed by Liam Kerr and Johann Lamont. Instead, it only agreed a tailored protection for religion, and swept everything else up in general provision about ‘discussion or criticism’.
The Scottish Government could, as promised, have at least provided some specific examples in the Explanatory Notes. It chose to break that promise. It could have worked with Police Scotland to ensure that guidance was made public prior to 1 April, which made clear how officers would be discouraged from taking forward complaints based on political disagreements over sex and gender identity. It did not.
Instead it worked with lobby groups on a pre-implementation publicity campaign that blurred the boundaries of the law, and emphasised the potential of words to hurt. This led the Editor-in-Chief of the The Drum, the UK’s main journal for the advertising industry, to say ‘Scotland’s best agencies should not be asked to answer briefs that make them complicit in chilling free speech.’.
The overarching story here, it appears, is that no-one wanted to ‘upset the transgender lobby’. It is a dire reflection on Scotland’s dominant political class, which is now reaping what it sowed.