Stephen Daisley Stephen Daisley

Scotland’s Hate Crime Bill would have a chilling effect on free speech

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:

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.

‘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’.

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