Last year, when the Scottish government introduced hate-crime legislation proposing up to seven years’ imprisonment for the subjective offense of “stirring up hatred,” Scots of every political persuasion complained that the government, if it must proceed at all, should at the very least incorporate robust provisions for free speech. What a travesty it is then, that yesterday both the government and its opposition members, as the Justice secretary put it, “all agreed not to move our amendments in relation to Freedom of Expression.”
The purported reason is that Justice secretary Humza Yousaf is capable of finding a new “consensus” clause which will cover free speech — or rather, “legitimate” speech — in relation to every protected characteristic under the bill: age, disability, religion, sexual orientation, transgender identity, and intersex conditions. Amendments permitting speech in specific contexts — for instance, the one allowing “discussion or criticism” of transgender identity — was too “targeted” (read: upset activists on Twitter).
It is worth reiterating that even if the free-speech amendments had been included, the “Hate Crime and Public Order Act” would still be a superfluous mess. Superfluous, because it is already a crime to assault, attack, or threaten someone, and judges already tend to give harsher sentences when an offense is aggravated by prejudice. And a mess, because the list of characteristics to be protected from the new offense of “stirring up hatred” is inevitably arbitrary, subjective, conflicting, and impossible to enforce fairly.
As the Scottish Police Federation neatly summed up last year: “The bill would move even further from policing and criminalizing of deeds and acts to the potential policing of what people think or feel, as well as the criminalization of what is said in private.” Free to Disagree — a Scottish free-speech campaign representing writers and academics, atheists and Christians, liberals and conservatives alike — warned that their concerns are “wholly unresolved” after the government’s latest intervention.
Given that Scotland (and, indeed, the governing Scottish National Party) is in the midst of a heated debate about whether to rewrite sex-based rights and protections for women to include men who present as women, it is not reassuring that one side might be breaking the law merely for articulating its argument in strong and uncompromising terms. Just days before the committee met and decided to abandon the free speech amendments, the first minister posted a video on Twitter lamenting the rise of “transphobia” within the party, and an outspoken critic of transgender activism, Joanna Cherry, was sacked from the SNP’s Westminster front bench.
The brazen abandonment of the “discussion or criticism” of transgender identity is particularly disturbing, a spokesperson for the women’s rights group For Women Scotland told National Review, because it is accompanied by a refusal to include an amendment that would make sex a protected characteristic. “To add insult to injury, the Cabinet Secretary remains determined to include ‘cross dressers’ under this bill citing anecdote and supposition as evidence,” the spokeswoman said.
Secretary Yousaf explained that a perpetrator could be hateful toward a man in drag and “later claim that they had no issue with a transwoman who is really transitioning and only had a problem with men dressing up as women without transitioning.” But as the campaigners with For Women Scotland observe: “We do not know how many men have been the victim of crime while on the way to a drag show. We do know there were only seven hate crime convictions under the transgender aggravator [in 2018/2019] . . . [and] we do know that thousands of women are routinely harassed and abused.”
For Americans, Scotland’s hate-crime bill fiasco ought to serve as a cautionary tale: There but for the First Amendment go we. The modern-day authoritarian is not necessarily a foreign tyrant plotting destruction by force, but rather a monolithic and bloated bureaucracy, detached from reality, unaccountable, and so numbed by its own self-righteousness that it will gladly slash away at liberty.