Scotland: Saying that sex is binary risks criminal charge, group claims 04.03.21

The original article is here.

Women who declare that sex is binary risk criminal charges due to “flawed and rushed” changes to controversial hate crime legislation, it has been claimed.

Humza Yousaf, the justice secretary, proposed an amendment to the bill in January which would have granted a specific freedom of expression protection when discussing transgender identity.

However, it provoked a backlash among LGBT members of the SNP and prompted Nicola Sturgeon to record a video where she implored them not to leave the party.

Yousaf then withdrew his amendment for the Hate Crime Bill, which he is guiding through Holyrood.

However, MBM, an independent policy analysis group, has raised concerns that individuals could, as a result, potentially face criminal charges for expressing a belief in the idea of biological women.

Lucy Hunter Blackburn, speaking for the group, said: “Amendments that would have provided protection in relation to discussion on sex and gender identity were hastily introduced and then withdrawn after a backlash.

“At the last minute, the Scottish government has now brought forward flawed and rushed proposals, making proper scrutiny impossible.”

Blackburn, a former senior Scottish government civil servant, claimed the justice committee had already seen a “mass of evidence” of individuals facing consequences for expressing beliefs.

“It has seen evidence that women have lost their jobs, faced disciplinary action, and had their details recorded on police databases for asserting that sex matters,” she said.

“In committee, the justice secretary refused to confirm that there are only two sexes. If politicians in Holyrood are worried about being labelled as hateful, or just hurtful, for putting beyond doubt that it will not be criminal to talk about sex as physical, binary, immutable and important, it is difficult to see how ordinary citizens can be confident the law will have their back.”

MBM, whose other members are Kath Murray, a research fellow in criminology at the University of Edinburgh, and Lisa Mackenzie, a former UK government civil servant, believe it is significant that Yousaf consulted with the Scottish Trans Alliance and other state-funded groups before withdrawing his amendment.

“The Scottish government has frozen out the people most concerned about chilling effects in relation to sex and gender identity, consulting only with stakeholders that it heavily funds,” Blackburn added.

Adam Tomkins, the Conservative MSP and lawyer, who is convener of the justice committee, previously claimed the backlash generated by the now-discarded amendment left him “alarmed and a little afraid”.

Speaking last month he said: “I have to say I have been disturbed by the reaction I have seen to what were modest, innocent amendments put down by the cabinet secretary which I would have voted for.”

Patrick Harvie, the Scottish Green leader, described the amendments put down by MSPs as “shockingly transphobic”.

Yousaf told MSPs that only threatening and abusive actions intended to stir up hatred would be crimes under new legislation, not vigorous debate. He spoke out days after Joanna Cherry, QC, and an SNP MP, a vocal opponent of gender reform, was sacked from the party’s shadow cabinet at Westminster.

A Scottish government spokesman said: “The bill does not prevent people expressing controversial, challenging or offensive views, nor does it seek to stifle criticism or rigorous debate in any way.”

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