Women have every right to be concerned about Hate Crime Act

Over the last few days, a succession of men have taken to print and to the airwaves to tell you there is no cause for concern about the new Hate Crime Act coming into force on April 1. One headline even proclaimed concerns were 'silly'. I'm here to tell you that these men are wrong as well as patronising, and that, if you are a woman, you have every right to be concerned.

I have no problem with consolidating and updating the existing hate crime aggravators. I believe that if an assault on a gay or a trans person is motivated by hatred of their sexual orientation or their gender reassignment, that should be reflected in the charge and the sentence. When I worked as a senior prosecutor in the High Court, I helped prepare and prosecute such cases.

I am concerned about the creation of the new offence of stirring up hatred against the protected characteristic of transgender identity. Not only is the offence vague but the characteristic is very widely drawn. For example, it extends beyond people who identify as trans to include cross-dressing men. I'll explain more below but first get this - biological sex is not included as a protected characteristic in the Act, despite women being one of the most abused cohorts in our society. This means that cross-dressing men will be better protected under the law of Scotland than women.

When the bill was passed three years ago, we were assured that work would be progressed on a standalone crime of misogyny but suffice to say that work has proceeded at a snail's pace and seems not to be a priority at Holyrood. It is well documented that women, particularly those who take part in our public political discourse, are at the receiving end of a lot of abuse and threats. The women who took to the public square in Dundee last weekend to talk about their experiences of domestic violence etc should not have had to endure being spat on by men in the crowd that assembled to try to silence them. But they did and I don't think we saw any arrests.

A woman at a similar event in Aberdeen last year was punched by a trans rights activist. The police decided he should be merely admonished. Such is the level of protection which women who dare to speak up for their rights enjoy in contemporary Scotland. This legislation is only going to make the situation worse.

Over the last few years, women who hold the view that sex is immutable, that people cannot transition from male to female, and who wish to speak clearly about this, have been at the receiving end of abuse, threats, and violence. I know whereof I speak. A small but noisy minority in our society wishes to silence such women. Misguided aspects of this new law look likely to give them a new weapon. And if you think they are not delighted about that, just take a look at social media. The weaponisation of hate crime laws to silence gender-critical women is a risk which has been recognised by legal experts who have looked at the issue in recent years both north and south of the Border. The retired Scottish judge who prepared the independent report which preceded this new hate crime legislation, Lord Bracadale, recommended that there should be a tailored freedom of expression protection for such women in it.

When the bill was first introduced to Parliament, this recommendation was not reflected in the bill. I approached Humza Yousaf to discuss my concerns, he listened, took my concerns on board, and a tailored defence for gender-critical women was produced at the end of January 2021. Here's what it said: '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.'

The amendment was drafted and published by the SNP Scottish Government, but when I tweeted my support for it, I was accused of transphobia. Nicola Sturgeon tweeted her now infamous broom cupboard broadcast, I was sacked from my position on the SNP front bench and the amendment was ditched in what I can only describe as an atmosphere of hysteria. A similar defence was introduced at a later stage but it is expressed in very limited terms compared to the protections afforded to those who wish to discuss or criticise religious beliefs. Those who are religious sceptics are afforded protection if they wish to express 'antipathy, dislike, ridicule or insult' towards religious beliefs. Those of us who are sceptics about gender identity ideology don't get the same leeway.

What Lord Bracadale was suggesting was that the sort of defence that will be open to religious sceptics should be open to the gender-critical so, for example, statements that some people might find hateful, but others would regard as important statements of fact or protected belief such as 'lesbians don't have penises' and 'trans women are men' could be made without incurring police interest.

In a situation where it is enough for a statement to be construed as merely abusive as opposed to threatening, it is quite likely that the police will feel they need to investigate the intentions of those of us who wish to continue to be able to make such statements, particularly when their guidance and training is being framed and delivered by activists.

And so here we are three years on with the legislation about to be introduced. Promises to consult further with groups representing gender-critical women have been broken, social media is alive with threats from trans rights activists to swamp the police with complaints about prominent feminists after April 1, and the police have said they will investigate every single one of those complaints, notwithstanding their recent statement that they would no longer be investigating all other types of low-level crimes.

The nature of guidance and training being given to the police is also causing widespread concern including in the Police Federation. A Freedom of Information request revealed materials prepared by a charity noted for its trans rights activism which was engaged to train the police on the operation of the Act, and which did so using thinly veiled references to prominent feminists which were both snide and potentially defamatory. I am sure I will not be alone in feeling deeply uncomfortable that the very activists who agitated for women to be unprotected by this Act are now training the police how to implement the law. It stinks.

And just where is the evidence that such hate crime is wreaking havoc in Scotland as one MSP put it this week? It is telling that in recent years the director of a prominent trans rights charity encouraged people to report stickers with slogans 'Female is a biological reality' and 'Woman. Noun. Adult Human Female' to police as hate crimes because: 'We need the stats.'

For all these reasons I stand by concerns that the stirring up provisions in the Act risk being a charter for those who wish to make malicious complaints against gender critical women and thus to exert a chilling effect on freedom of expression in Scotland. A cursory look at social media shows that such activists already have at least one high-profile woman in Scotland in their sights. Experience shows that working-class women will also fall victim to their attentions. It is some consolation that when such women are dragged to court, if they can afford a lawyer, they will have a good chance of arguing that their prosecution breaches their rights to freedom of belief and freedom of expression under the European Convention of Human Rights. But let us be clear, for many the process will be the punishment. Being under police investigation will be stressful, costly, damaging to reputations and could lead to problems in the workplace.

To make matters worse, under existing Police Scotland policy, officers are required to record all 'hate' incident reports even if there's no evidence of a crime, based on the perception of the person who reported the incident to them. This means that even if no criminal proceedings are advanced against a woman accused of 'hate', somewhere in Police Scotland archives there will be a record that she was involved in a hate incident. I think this will seem sinister and unfair to any right-thinking person. After a successful legal challenge to a similar policy in England and Wales, police officers must now not record anything that is 'trivial malicious or irrational'. Police Scotland has said it intends to review its own policy in response to the development, but it seems no changes will be made prior to this new Act coming into force.

So, from April 1, officers will be required to regard all reports of 'hate' as subjectively true based on the perception of the complainer. Yet, those who seek to reassure women about this Act say that in deciding whether a reasonable person would regard what was said as threatening or abusive and whether it is intended to stir up hatred, the police will apply a high threshold. The two things are clearly contradictory.

I fear the Scottish Government and the Scottish Parliament are heading for another embarrassing legal car crash over this legislation. The really annoying thing is that this and the consequent reputational damage could have been avoided if the Government had stood by the advice of Lord Bracadale. This would have been the best chance of seeing off those trying to weaponise this legislation to silence those with whom they disagree.