Legislating Hate Speech - Lessons from Scotland
Stating that there are only two sexes, does that make you transphobic, really?
Not only do I read letters. I write them. To newspapers and to politicians.
First I wrote to the Irish Times. Then I wrote to two Scottish politicians, Adam Tomkins MSP, and Humza Yousaf, Cabinet Secretary for Justice in Scotland.
Why on earth did you write to two Scottish politicians you might well ask?
I wrote because the Stage 2 consultation on the Hate Crime and Public Order (Scotland) Bill was in process. Humza Yousaf introduced the bill and Adam Tomkins is the convenor of the Justice Committee charged with scrutinising the bill.
I thought it was important that the committee consider the impact on democracy when an international human rights organisation with the power and influence of Amnesty International signs a letter that seeks to deny legitimate representation to people of conscience.
On January 27 I was relieved when the Mr Yousaf and members of the committee tabled amendments to protect freedom of expression. The government amendment was the least specific. None the less it clearly recognises the difficulties academics, journalists, public representatives and ordinary citizens face in discussing issues relating to transgender identity in the extremely toxic climate created by the current culture wars.
“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 response from activists with the Scottish National Party was swift and vigorous. They accused the SNP of legislating transphobia. A number of high-profile activists publicly quit the party.
In double jig time Nicola Sturgeon, who is facing internal power struggles and could ill afford to lose any support within the party, responded by posting what she described as unscripted video. She assured everybody that the SNP has zero tolerance for transphobia. She urged people to “come home”.
“It grieves me deeply that you have reached this conclusion because you consider at this stage the SNP not to be a safe, tolerant or welcoming place for trans people. That is not acceptable to me.”
On February 1 Mr Yousaf announced that the government and opposition members agreed not to continue with the tabled amendments in relation to freedom of expression.
After Mr Yousaf’s announcement Mr Tomkins, who is also a professor of public law at Glasgow University, said "I am alarmed and distressed, and perhaps even, if I’m honest, a little afraid of the reaction" to the proposed amendments on freedom of expression in relation to transgender identity. He continued:
“Stating that sex is an immutable biological characteristic does not make you transphobic.
Stating that there are only two sexes, does that make you transphobic, really?"
Emphatically yes, it does make you transphobic, according to Amnesty and 27 other Irish NGOs. The Amnesty letter develops an arc that defending biology (i.e there are only two sexes) is hateful not merely offensive. That in fact such a view is so heinous that people who hold that view should be denied "legitimate representation" by politicians and the media and a "call for an end in giving airtime to their despicable brand of harassment" is warranted.
This was the very reason I felt compelled to write to Mr Tomkins in the first place. Of course I am not alone in sharing this concern with the Justice Committee.
The Free to Disagree Campaign have called for the hate crime proposals to be scrapped. James Gillie, their spokesman, goes on to say:
“We’ve said from day one that the Hate Crime Bill feeds directly into the ongoing culture wars and creates real dangers. Political activists could easily allege the ‘stirring up of hatred’ following mere criticism of their ideological stance. The idea that police officers and prosecutors could be dragged deeper into the culture wars as arbiters of political opinion is chilling."
The Scottish Police Federation have previously submitted their concerns:
"Police officers are all too aware that there are individuals in society who believe that to feel insulted or offended is a police matter."
I believe the chilling effect is much broader than a simplistic discussion around freedom of expression. Standing up to the chilling effect is about tending to the beating heart of a functioning democracy where people are entitled to debate and where accusations of hate are not weaponised as a tool to silence differing but legitimate views.
Murray Blackburn Mackenzie (Scottish policy analysts) report on a number of incidents in the UK that demonstrate "the vulnerability of the police, prosecutors, and courts to becoming drawn into the fierce contest over the limits of acceptable speech in the context of sex and gender".
These incidents are concrete examples of the chilling effect. The individuals prosecuted for allegedly breaching the limits of acceptable speech were ultimately vindicated, but this vindication came at great personal and financial cost. Faced with those examples most ordinary people would simply stay quiet, or wheesht as they say in Scotland.
As trans woman Miranda Yardley said after a permanent twitter ban for misgendering a fellow trans woman:
"We are in a world of proscribed truth and compelled thought. Whatever your political stance, this should should strike you cold with terror."
I feel a Siberian chill creep into my bones when I watch a group of public representatives cave so quickly to a small but very vocal minority. No matter that this same group of public representatives agreed unanimously in December the need to protect freedom of expression:
"We believe that, if amended in line with our unanimous recommendations, this bill should be fit to protect the communities it affords extra protections to, without encroaching on the ability of citizens to have robust debates, hold views others find unpalatable, and express themselves freely."
Helen McEntee, Minister for Justice, claims that the Irish Hate Speech legislation will contain robust safeguards for freedom of expression.
Having watched events unfold in Scotland I am more convinced than ever that we must hold our elected representatives accountable for ensuring that any legislation enacted in Ireland allows Irish citizens to have robust debates, hold views that others find unpalatable, and express ourselves freely, while also protecting vulnerable communities. This is a difficult balance but it is a balance that must be legislated for with great care.
We must ensure that our public representatives do not legislate the chilling effect dictated by Amnesty and the 27 NGOs that the government funds on our behalf.
Please share this article - let’s get people thinking about these issues!
Read my previous article on hate speech in Ireland - Is Liking a Tweet Hate Speech?
The implications particularly for an NGO lke Amnesty, which has to rely on a strong connection to reality in order to establish the truth (or otherwise) of situations of prisoners of conscience, victims of political oppression etc, are concerning. One can't treat an organisation that not only denies straightforward biological facts, but actively promulgates discord by backing the nefarious position that to relate such facts is hate speech, as having any credibility whatever. Such a position means it's game over for Amnesty International. That's very sad, given its history.