Among the encroachments on Milton’s three supreme liberties contained in Humza Yousaf’s Hate Crime Bill is a cloturing of the debate on gender identity and the law. Proposals to remove medical expertise from the gender recognition process have either stalled or been shelved, but not before their radical scope prompted a lively dispute about the ethics of gender identity, sex-based rights and the freedom to dissent. That freedom will be meaningfully reduced in Scotland if the Hate Crime Bill becomes law because it is a piece of legislation that begins from the position that all legitimate debate has already concluded.
The Bill creates an offence of ‘stirring up hatred’ against a list of protected characteristics, including ‘transgender identity’. That term was defined in Scots law a decade ago in the Offences (Aggravation by Prejudice) (Scotland) Act 2009 as referring to:
‘transvestism, transsexualism, intersexuality or having, by virtue of the Gender Recognition Act 2004, changed gender, or any other gender identity that is not standard male or female gender identity’.
The explanatory notes to the Hate Crime Bill advance a new, more expansive definition that includes:
‘those who identify as male but were registered as female at birth, those who identify as female but were registered as male at birth, non-binary people and cross-dressing people’.
Not only is this a much broader definition than that of gender reassignment in the Equality Act, the Hate Crime Bill defines its terms in opposition to those of the 2010 Act, with the accompanying notes specifying that ‘transgender identity’:
‘does not only refer to people with a Gender Recognition Certificate or who have undergone, are undergoing, (or propose to undergo) medical or surgical interventions’.
This is a Polonian definition: to thine own pronouns be true. Identifying themselves along these lines may make life easier for transgender people, and who would object to that? But a law that adopts such arbitrary and subjective parameters – and provides for custodial punishments for offending against them – is a tripwire pulled tight around personal and expressive liberty.
Murray Blackburn Mackenzie (MBM), independent and respected analysts of Scottish public policy, warns that ‘a failure to clarify what is meant by this term is likely to add to the already substantial risks around freedom of expression’. MBM notes that, while the Bill sticks to broad themes, much more specific definitions are already in use by bodies such as Police Scotland and NHS Lanarkshire, and in both cases are:
‘grounded in a person’s internal feelings, and specifically in a belief in the presence of a gender identity which exists innately and separately from physical sex, rather than being related to any observable behaviours or physical traits.’
That is a policy analyst’s way of saying that everyone is making it up as they go along.
SNP justice minister Humza Yousaf is effectively adopting a Potter Stewart test for what constitutes stirring up hatred on the basis of ‘transgender identity’. ‘The approach seems to be in essence that people (individuals? the police? prosecutors? the courts? juries?) will know it when they see it,’ MBM concludes. The Hate Crime Bill is legislated vagueness with a seven-year prison sentence attached.
Imprecision is not the cardinal sin of this Bill. MBM warns of a ‘substantial chilling effect on freedom of expression’ and no wonder. To be prosecuted, a person will not even have to intend to stir up hatred against a group which the law itself cannot define. It will be enough that his behaviour or communications are considered ‘threatening’ or ‘abusive’ and that a court deems it ‘likely that hatred will be stirred up’. If this cascade of caprice becomes law some, perhaps many, holders of controversial or dissenting views will conclude that it is safer to simply shut up than risk arrest, prosecution and even imprisonment.
Ever since the Scottish Government’s campaign to legislate self-identification stalled, gender-critical feminists have been on alert for attempts to introduce these changes by the back door. The Hate Crime Bill gets closer than any other measure to jimmying the lock. If it passes as drafted, the potential chilling effects on debate about gender and identity will be such that some aspects of self-identification are achieved by default. Who will dare write or say that transwomen are not women when it could bring, at the very least, a visit to your home or workplace by police? Who will insist that sex-reserved spaces be reserved on the basis of sex when there are activists out there just waiting to experience your policy as ‘threatening’ or ‘abusive’? Who will object to girls who are ‘boyish’ or attracted to members of the same sex being told they are trans when a fellow teacher or medic or social worker might pick up the phone and report your heresy as hate speech?
No people can consent to be governed by such an insidious and repressive law and still be counted among the freedom-valuing nations of the world. I tend to think that, rather than being motivated by conscious contempt for liberty, Humza Yousaf is so enraptured by the ascendant ideology of coercive progressivism that he cannot see what an almighty shoeing his Bill gives to ‘the liberty to know, to utter, and to argue freely according to conscience’. I’m not sure his intentions are worth a jot, though, when the consequences are so destructive. Yousaf is a Scottish nationalist but while he might believe in independence, he has no regard for freedom.