Hate crime bill: Saying trans women aren’t women could break the law The Times 24.11.20
The original article is here.
Activists who promote the view that a trans woman is not a woman will be breaking the law if a court rules their campaign was intended to stir up hatred, the justice secretary has confirmed.
Humza Yousaf said it would not be a crime to express the opinion that sex is immutable unless it was accompanied by behaviour that was intended to stir up hatred, which could include aggressive campaigning.
The hate crime bill will criminalise threatening and abusive comments intended to stir up hatred against minorities. It has provoked a backlash from actors including Rowan Atkinson and Elaine C Smith, the authors Chris Brookmyre and Val McDermid and the Scottish Newspaper Society, who fear it will have a “chilling effect” on public debate about divisive social issues.
Lucy Hunter Blackburn, founder of the women’s rights activists Murray Blackburn Mckenzie, raised concerns last week that anyone who describes a woman as an “adult human female” would face a police investigation.
Mr Yousaf told the Scottish parliament’s justice committee yesterday that expressing such opinions would be lawful unless accompanied by behaviour intended to stir up hatred.
“Expressing an opinion that ‘a trans woman is not a woman’ in itself is not going to lead to a prosecution under this legislation,” he said.
“It may well be offensive to some, it may be controversial to others, it may be absolutely the mainstream view for many others, but simply expressing the opinion is not in itself criminal.
“If the behaviour that accompanies that expression is proven beyond reasonable doubt that it was intended to stir up hatred and was also threatening or abusive, then of course you may well face some criminal sanction.”
Mr Yousaf confirmed that a campaign promoting the view that sex was immutable would be prosecuted if it was deemed deliberately provocative.
“There has to be the intent to stir up hatred. Even if somebody could argue the behaviour was abusive, that in itself is not enough under this legislation to lead to a stirring up offence,” he said.
“The behaviour would have to be proven beyond reasonable doubt by a court of law that that person or organisation intended to stir up hatred.
“I cannot see how someone campaigning in a non-threatening or abusive manner without the intent to stir up hatred would be captured as an offence under this legislation.”
Freedom of speech campaigners fear the bill will be used “as a weapon” by activists who will try to frame dissenting views as “hate speech” to have their opponents prosecuted in court.
Last week Becky Kaufman, justice policy officer with the Scottish Trans Alliance pressure group, described these claims as “absurd”.
She accused journalists, authors and academics of invoking the “bogeyman” of censorship to undermine a bill designed to protect minorities from violent racists, homophobes and transphobes.
Ms Hunter Blackburn challenged her assertion by highlighting a recent effort by the Scottish Trans Alliance (STA) to prompt a police investigation into stickers posted around Edinburgh University that stated: “‘Woman. Noun. Adult human female.”
She said: “The Scottish Trans Alliance suggested that people might want to refer those stickers to the police. The university did so as potential hate incidents.”
Ms Kaufmann denied this, and stated: “The STA was not approached, and nor did we give any advice to anybody as to whether they should be referred.”
Yesterday she corrected the parliamentary record and confirmed that the STA did encourage members of the public to refer the stickers to the police.
In a statement issued to The Times in January, Vic Valentine, a policy officer for STA, said: “If people feel distressed or alarmed by transphobic stickers they see posted around Scotland, we do encourage them to report this to police. It is then for Police Scotland to decide if they report this as a hate crime or not.”
Ms Kaufman told the committee: “I apologise for this error that was made in good faith and just wanted to correct what I said.”
Susan Smith, director of For Women Scotland, a pressure group that opposes extending full women’s rights to trans women, agreed yesterday that the bill would have a chilling effect on freedom of speech.
“When people start throwing around accusations of hate, especially when those people are perceived to have an authority, we think there will be a chilling effect,” she said. “The stirring up part of this bill has the potential to make life very much harder for a number of people by using this law as a weapon.”
Dinner party chat a risk
Abusive remarks to a small group of friends at the dinner table will be investigated if police suspect they were intended to stir up hatred, the justice secretary has confirmed.
Humza Yousaf said he had no intention of removing the “dwelling defence” from his Hate Crime Bill to provide a safe space for bigots in their own homes.
Calum Steele, general secretary of the Scottish Police Federation, which represents frontline officers, has raised concerns police will be called to investigate parents if children repeat dinner-table conversations deemed abusive in the playground.
Mr Yousaf was previously reported to have raised concerns that “you could hold a gathering of 50 people in your mansion” to stir up hatred and escape prosecution.
Yesterday he said smaller dinner parties would also be investigated if there was a suspicion they were intended to stir up hatred.
He told the Scottish parliament’s justice committee: “For me the bill isn’t about specifically targeting dinner-table conversations.
“Of course, if there is a stirring up of hatred that meets the threshold — the behaviour is threatening or abusive under the new offences with intent of stirring up hatred — and that is done round the dinner table with ten of your mates and that can be proven beyond reasonable doubt that would be prosecuted, potentially, under the offence.”
Mr Yousaf announced that a task force to explore whether to class misogynistic abuse as a hate crime will be led by lawyer Baroness Helena Kennedy. Mr Yousaf said he is delighted to have someone of her stature and integrity “leading this important piece of work”, which he hopes will happen “at pace”.