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Fears over Hate Crime Act’s effect on Women

The new Hate Crime Act (HCA) is a minefield.  In the blue corner Adam Tomkins, Professor of Public Law at the University of Glasgow and former convener of the Scottish Parliament Justice Committee when the hate crime bill was enacted, who claims there is ‘nothing to see here’. 

He says the law now essentially divides hate crimes into three categories, with race (the first category) having the fullest protection, religion (the last category) the least, and other protected characteristics (sexual orientation, transgender identity, age, disability and variation in sex characteristics) somewhere in between (the middle category).

‘Race’ (the first category) has a higher bar than the others, and now includes nationality and citizenship, colour and ethnicity.  ‘Stirring up racial hatred’ can be committed:

  • if behaviour is threatening or abusive; OR
  • if behaviour is merely insulting; and
  • can be committed if an offence is intended or likely.

This differs from the other characteristics category, where a person must have intent to stir up hatred, not just likelihood. ‘Stirring up hatred’ regarding this category is committed if:

  • a ‘reasonable person’ would consider behaviour threatening or abusive’;
  • it was intended to stir up hatred; and
  • it was not ‘reasonable in the circumstances’.

 

A subjective feeling that you are offended will not count, free speech is very important, and mere discussion or criticism will not be regarded as threatening or abusive. He says that saying that sex is a biological fact or that sex is not changed by someone merely identifying as a different gender ‘is not and never can be a hate crime under this legislation’.

‘Religion’ has the least protection.  Discussion, criticism, and even expressions of antipathy, dislike, ridicule or insult are all allowed. Stirring up hatred on religious grounds would have to be intentional, and probably only truly outrageous.  Ridiculing religion would not be a crime, even if insulting.

Police Scotland are coming under fire over a training event where participants had to consider a scenario of a fictional character called ‘Jo’ who thinks sex is binary and immutable and who wants trans people to be sent to gas chambers.  Critics claim it is a clear reference to JK Rowling.  The event was jointly organised by the Scottish LGBTI Police Association, but police could only bluster that the training event was not mandatory for all officers and not part of Police Scotland training.

And in the purple corner Joanna Cherry, who effectively says ‘Be afraid.  Be very afraid’, claiming ‘stirring up hatred’ is vague, and extends past trans people to include cross-dressing men.  Biological sex is not protected as a characteristic, and she says cross-dressing men will be better protected than women, who form the majority in society, and who are still waiting for an anti-misogyny bill to be passed, which seems to have disappeared from view.

Men have spat on and punched gender-critical women at public events in Dundee and Aberdeen, with the police refusing to act meaningfully or even at all. Lord Bracadale had recommended a tailored ‘freedom of expression’ protection for women to be included in the HCA. When Joanna Cherry approached Humza Yousaf with her concerns, he did include a tailored defence for gender-critical women, which was published by the SNP government, but then Cherry was labelled transphobic for tweeting her support for it, she was sacked from her front-bench position as Justice spokesperson, and the amendment was ditched.

Although religious beliefs can be criticised, and even insulted, critics of gender identity do not have the same protection, so may incur police interest if they say, for example, ‘trans women are men’ or ‘lesbians don’t have penises’, particularly as police training is being framed and delivered by gender ideology activists.

She and others see a major problem with the fact that police have engaged a charity involved in trans rights activism to train police in operating this act, and says the director of a prominent trans rights charity encouraged people to report stickers saying ‘Woman. Noun. Adult Human Female’ and similar to police as hate crimes because, it was said ‘We need the stats’.

She believes anyone charged would have a good defence under freedom of belief and freedom of expression under the European Convention of Human Rights, but calls the noting of ‘non-crime’ hate incidents by police sinister and unfair.

The Scottish government does not have a good record on preventing harm to women at the hands of trans activists, and promoted gender identity which would have erased women’s rights until they were stopped by the intervention of the UK government. 

Joanna Cherry thinks this law may prove to be another embarrassing legal car crash, and it is hard not to see it falling foul of the GB-wide Equality Act 2010.  So far it is a giant April Fools’ joke, but the joke may be on women.

Julia Pannell         22/03/24

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