Is the word of a Scottish government minister worth anything? The question arises in the wake of the SNP’s Hate Crime Act which, among much else, creates the offence of ‘stirring up hatred’ against ‘transgender identity’. Feminist groups warned early on that the Bill’s language could see people who don’t believe that men can become women (or vice versa) prosecuted for what had hitherto been treated in law as legitimate expression.
Prominent among these groups was MurrayBlackburnMackenzie (MBM), a policy analysis outfit whose principals boast extensive scholarship and years of experience inside the civil service. One of MBM’s principals, Lucy Hunter Blackburn, gave evidence to the Holyrood justice committee in February 2021 citing the ‘numerous ways in which, and examples of where, accusations of hate and abuse have been directed at women taking part in the debates around sex and gender identity’.
On the same day and before the same committee, the then Scottish government justice secretary Humza Yousaf said he was ‘making an offer to those who would like to see more specific detail in the bill’ that he would ‘continue to engage with stakeholders and members of the committee’. Yousaf proposed ‘that I engage with stakeholders to see where we might be able to give them some reassurance in the explanatory notes that sit alongside the bill’. He even dangled the possibility that ‘we might need to insert some more specific examples – perhaps some of the examples that Lucy Hunter Blackburn mentions about the belief of some people that sex is immutable and that people cannot transition from male to female and vice versa’.
Yousaf told the committee:
I am confident that we will get to a position where we can get a freedom of expression provision that gives people the confidence that they need on the bill’s impact on free speech and freedom of expression and at the same time ensures that we are not giving a green light to any type of behaviours that I suspect that none of us would like to see happening to protected groups.
As anyone who has been following this debate knows, the Hate Crime Bill somehow withstood the fierce legislative scrutiny of the Scottish parliament and became the Hate Crime Act.