The Law Commission consultation on Hate Crime

(Last Updated: 23 December 2020)

The Law Commission is carrying out a consultation on reforming the Hate Crime legislation in England and Wales. There are two ways to respond to the consultation – one based on the summary of the consultation paper, and another based on the full consultation paper. The public are invited to respond to either one of them by Thursday, 24 December 2020.

Consultation – SummaryConsultation – Full
Summary Paper
(24 pages)
Full Paper
(544 pages)
Respond to summary consultation
(20 questions)
Respond to full consultation
(62 questions)
PDF of 20 questionsPDF of 62 questions

We recommend that you respond to the full consultation if you can as there are some further questions related to transgender identity that are not covered by the summary version. Although most of the questions are quite technical, you do not have to answer every question in either version of the consultation. You can focus on the areas that concern you the most. The online consultation response page allows you to save your progress and return to the form later to continue filling it in.

Questions worth focusing on

This is based on the full consultation paper. Concentrate on the ones that are likely to be used to silence gender critical campaigners and women in general.

The concept of ‘serious emotional harm’ is subjective and open to misuse / abuse (as has already happened – Maya Forstater, Harry Miller, Kate Scottow, J. K. Rowling etc). Provide examples from gender critical contexts and in relation to free speech generally.

Lord Justice Sedley in Redmond-Bate v DPP, for example, stated:
Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative… Freedom only to speak inoffensively is not worth having.

The Scottow v CPS case is also helpful. “The Prosecution argument failed entirely to acknowledge the well-established proposition that free speech encompasses the right to offend, and indeed to abuse another.
From Maya Forstater’s blog post reviewing the year 2020 (which also lists other cases) – Finally in mid-December, Kate Scottow’s criminal conviction was quashed. The judges declared that the case should never have been prosecuted and the judges reasoning in finding Kate guilty was deficient. They said it would be a “serious interference” with the right of free speech if “those wishing to express their own views could be silenced by, or threatened with, proceedings for harassment based on subjective claims by individuals that felt offended or insulted”.

Question 7 – including asexuality in definition of sexual orientation.
See WhatIsAsexuality.com and Asexuality.org for information to help write response.

Question 8 – expanding definition of transgender identity from gender reassignment to explicitly include non-binary, cross-dressing and intersex.

Questions 11 to 14 – in relation to gender or sex. You can use the example of the recent amendment to the Scottish Forensic Medical Services Bill to highlight the importance of ensuring the word ‘sex’ is used.
Dear MSPs…from survivors
FWS Statement on the Vote for Lamont Amendment
Gender in practice can refer to trans identity, “genderfluidity” or a plethora of “non-binary” identities like “maverique” which cannot be easily defined in law. See “The big list of gender identities“.

Question 17 – whether sex workers should be recognised as a hate crime category.

Question 20 – whether philosophical beliefs should be recognised as a hate crime category.

Question 25 – extending the characteristics protected by aggravated offences.

Questions 31 and 32 – proposals that aggravated versions of sexual offences should not be introduced and whether legal test in the context of aggravated offences should cover more than one protected characteristic.

Questions 47 to 52, 54, 55 – related to the offences of ‘stirring up hatred’.

Notes

Q: Why is the list of protected characteristics in Equality Act and Hate Crime legislation different?
Equality Act deals with civil law while Hate Crime legislation deals with criminal law. It is Parliament that determines what the protected characteristics are, and it appears that different sets of characteristics formed the basis of the two types of legislation as they evolved over time (for example, gender reassignment in Equality Act and transgender status/identity in England & Wales Hate Crime legislation.)

Transgender identity was added to the enhanced sentencing regime in 2012.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 – Part 3, CHAPTER 1, General, Section 65
The Law Commission wants to revise the definition of transgender identity to make explicit reference to people who are transgender, non-binary, cross-dressing or intersex.

Resources

CIVITAS – Policing Hate: Have we abandoned freedom and equality?
This report can be used to help answer some of the questions in the consultations. Part 1 describes recent examples of the impact of hate crime legislation on people/groups such as Harry Miller, Safe Schools Alliance and Posie Parker. Part 2 is a detailed analysis of the Law Commission Consultation Paper with a focus on two points in particular: the notion of equality before the law and the challenge to free expression. See also section on Hate Crime Entrepreneurs.

Nordic Model Now! Response to the Law Commission’s hate crime consultation
The NMN response focuses on specific areas of the Summary version of the consultation, but their answers can help guide either the full or summary versions of responses. One of the areas of concern is the proposal to extend the hate crime legislation to cover “sex workers” as a protected characteristic.

MBM Briefing for Stage 1 debate: Hate Crime and Public Order (Scotland) Bill
Although written for the Scottish Hate Crime Bill, this report might be useful in formulating some answers as it focuses on two areas: the exclusion of sex from the hate crime protected characteristics, and aspects of the extension of the offence of stirring up hatred.

MBM Protecting Speech that Offends: Theory and Practice
Analysis of the cases of Kate Scottow, Miranda Yardley, Harry Miller and Maria MacLachlan to demonstrate how the legal system fails to protect free speech in practice.

MBM The limits of precedent and the special case of racial hatred
Analysis of why ‘stirring up hatred’ in the context of race should remain unique and not be expanded wholesale to other protected characteristics.

MBM Supplementary evidence on the Hate Crime and Public Order (Scotland) Bill
Some examples of free speech potentially being framed as ‘stirring up hatred’ in the context of women’s rights and disagreements against transgender ideology.

People must have the ‘right to offend’ without facing a police investigation
The Telegraph – 17/12/2020

Cancel Culture Claims Gender Critical Reddit Forum
Women are Human – 03/07/2020

Why I Am Permanently Banned From Twitter And Why This Should Make You Worry
Miranda Yardley – 24/05/2018

Further resources and useful examples for submission can be found at the blog post for the Scottish Hate Crime Bill.

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Consultations

List of public consultations, calls for evidence, calls for views and surveys that impact on areas such as the rights of women and girls, the rights of children in general, freedom of speech, and so on. Please get in touch if there are any errors or relevant consultations that haven’t been included in the list.

(Last Updated: 18 January 2021)

January 2021

Toilet provision for men and women: Call for Evidence
Caroline Criado Perez has some notes on this in her newsletter.
Keep Toilets Single Sex is a short but informative YouTube video that explains the problems with mixed-sex toilets and why it is important that we preserve single-sex facilities everywhere, including in the UK.
Caroline Ffiske has written an article on the issue that can be used for inspiration.
Area: England
Deadline: 11:45 PM 29 January 2021

Standards Matter 2: Public Sector Survey
The Committee on Standards in Public Life wants to hear from those working in the public sector. We want to know what you think about the culture, policy and practice in your organisation towards standards.
Area: UK
Deadline: 5pm 29 January 2021

Standards Matter 2: Public Consultation
The Committee on Standards in Public Life is running a public consultation to ask for respondents’ views on current principles, institutions, and arrangements for upholding standards.
Area: UK
Deadline: 5pm 29 January 2021

Call for Evidence: Freedom of Expression
Area: UK
Deadline: 31 January 2021

February 2021

Independent Review of Complaints Handling, Investigations and Misconduct Issues in Relation to Policing
The Justice Sub Committee has launched a public call for evidence on the final report of the Independent Review of Complaints Handling, Investigations and Misconduct Issues in Relation to Policing.
Area: Scotland
Deadline: 5 February 2021

The role of the GEO: embedding equalities across Government
The Women and Equalities Committee will examine how the Government Equalities Office (GEO) is delivering on its responsibilities. The inquiry will explore cross-cutting Government equalities strategies and consider recommendations for change to embed equalities across Government.
Area: UK
Deadline: 17 February 2021

Violence Against Women and Girls (VAWG) Call for Evidence
This call for evidence is seeking to collect views from those with lived experience of, or views on, crimes considered as violence against women and girls.
Area: England & Wales
Deadline: 11:45 PM 19 February 2021

Home use of both pills for early medical abortion
We want your views on whether or not the temporary measure introduced during the COVID-19 pandemic allowing women and girls to take both pills for an early medical abortion at home should be made permanent.
Area: England
Deadline: 11:59 PM 26 February 2021

March 2021

Keeping children safe in education
The consultation will seek views on revisions to ‘Keeping children safe in education’, the statutory guidance that sets out what schools and colleges should do and the legal duties with which they must comply to keep children safe.
Area: England
Deadline: 4 March 2021


December 2020

The Law Commission: Reform of the Communications Offences
Reform of the law is needed to protect victims from harmful online behaviour including abusive messages, cyber-flashing, pile-on harassment, and the malicious sharing of information known to be false. The Law Commission is consulting on proposals to improve the protection afforded to victims by the criminal law, while at the same time provide better safeguards for freedom of expression.
Area: England & Wales
Deadline: 18 December 2020

Equality Outcomes 2021-2025
This survey relates to Edinburgh, West Lothian and Midlothian Councils (including their education authorities and Midlothian’s licensing board), NHS Lothian, Midlothian Health and Social Care Partnership and East Lothian Integrated Joint Board.
Area: Scotland (Edinburgh & Lothians)
Deadline: 22 December 2020

The Law Commission: Consultation on Hate Crime
You can use the information here to help you write a submission.
Area: England & Wales
Deadline: 24 December 2020

January 2021

The Law Commission: Weddings
If you – or someone you know – has faced coercion, deception and control in having only a religious marriage but not a civil one, please take the time to submit a response. Southall Black Sisters and One Law for All will be happy to help with the submission if you are unable to do this on your own. Or if you think the law discriminates between religions and against minority women, please also respondPlease also send them a copy of any submission made. More information here.
Area: England & Wales
Deadline: 4 January 2021

Consultation on Future Arrangements for Early Medical Abortion at Home
Engender’s response for the continuation of telemedical appointments for Early Medical Abortion at Home
Area: Scotland
Deadline: 5 January 2021

Call for Evidence: Freedom of Expression Online
The House of Lords Communications and Digital Committee is to hold an inquiry to investigate how the right to freedom of expression should be protected online and how it should be balanced with other rights.
Area: UK
Deadline: 11:59 PM 15 January 2021

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Women’s rights: Prisons

(Last Updated: 17 December 2020)

Transgender women exhibit a male-type pattern of criminality: Implications for legislators and policy makers
Fair Play For Women – 12/12/2020

Opaque and overdue: the Scottish Prison Service trans prisoner policy review
Dr Kath Murray, Lucy Hunter Blackburn and Lisa Mackenzie – 02/12/2020

We need open discussion on the welfare of women in prison
Rhona Hotchkiss – 10/12/2020

Women’s prisons should be single-sex
Kate Coleman – 17/12/2020

Prisons – Fair Play For Women

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Equally Safe: Consultation on Prostitution (Scotland)

The Scottish Government held a consultation on prostitution called Equally Safe. This closed on 10 December 2020.

The Nordic Model Now! campaign group provided a simple two-step method to respond to the consultation using a template.

  • The Cross-Party Group on Commercial Sexual Exploitation provided guidance in tackling the questions related to demand.
  • Nordic Model Now! published guidance on responding to all nine questions in the consultation.
  • Women’s Support Project provided briefing notes.

Resources

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New evidence that trans women have male pattern of criminality – Fair Play For Women (FPFW)

The Women and Equalities Select Committee heard from female academics on 9 December 2020 that trans women present no less a risk to women than men do, based on their pattern of criminality. Professor Rosa Freedman cited a large-scale study of crime data in Sweden, but Nicola Richards MP questioned whether this was true.

Now Fair Play For Women has uncovered new data for the prison population in England and Wales showing that trans-identifying males have a pattern of criminality similar to men, and not like that of women. The findings come from Ministry of Justice data obtained through a Freedom of Information request. They show that at least 66, and perhaps as many as 76, of 129 trans-identifying males in prison in England and Wales have one or more convictions for a sexual offence.

Fair Play For Women Ltd is a campaigning and consultancy organisation which raises awareness, provides evidence and analysis and works to protect the sex-based rights of women and girls in the UK. Founded in 2017, their work is focused on understanding when and how gender-and sex-based rights conflict in law and policy making. Their aim is to ensure everyone’s needs are fairly balanced and women and girls are not overlooked in good policy-making.

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Petitions

Please sign and share.
(Last updated: 23 Feb 2021)

Women Uniting call on the Government to protect our sex-based rights

Liberal Democrats’ Grassroots Challenge to Policy on Women’s Sex Based Rights

Rise up! Bring Our Women’s Refuge Home

Keep McIver’s Ladies Baths Women & Children Only

Access to specialist mental health support for bereaved parents after baby loss

Ban virginity tests

End the Leeds Managed Prostitution Zone

Make public sexual harassment a criminal offence

Same opportunities for talented football girls as boys during lockdown periods and beyond

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Women and Equalities Committee: Inquiry on GRA Reform

The UK Parliament Women and Equalities Committee is carrying out an inquiry into reforming the Gender Recognition Act. The deadline for their call for evidence was 27 November 2020. You can view all the published evidence here.

Guidance provided by women’s groups for written submissions:

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Hate Crime and Public Order (Scotland) Bill

(Last Updated: 22 December 2020)

The Hate Crime and Public Order (Scotland) Bill is one of the most concerning pieces of legislation proposed by the Scottish Government. It has the potential to criminalise individual women and feminist groups that speak out against the erosion of women’s rights due to gender extremism.

The Free to Disagree campaign gives a brief explanation of why the Bill is problematic.

10 December 2020 – Stage 1 Report has been published by Justice Committee


Background information

CIVITAS – Policing Hate: Have we abandoned freedom and equality?
Joanna Williams – December 2020
Download Policing Hate PDF
By exploring the history, current context and impact of hate crime legislation and drawing upon interviews with academics and campaigners, the report explores the current challenges to equality before the law and free expression.
The author concludes that there should be no extension to existing hate speech legislation. The report finds that no special ‘characteristics’ should receive legal protection in a way that violates the principle of equality under the law. The author proposes that groups with a vested interest in presenting their members as victims of hate crime should not influence hate crime legislation. A future inquiry should be held to review all elements of the law that conflict with freedom of speech.

History of Women and Hate Crime Law
For Women Scotland – 24/11/2020

The Scottish Parliament’s bill process and the Hate Crime and Public Order (Scotland) Bill
An explanation of how legislation is brought forward, and how various amendments and rejections can take place.

Defining transgender identity in the Hate Crime and Public Order Bill and beyond

Should ‘Variations in Sex Characteristics’ be included in the Hate Crime and Public Order Bill?

The limits of precedent and the special case of racial hatred


NEWS & ARTICLES

Analysis: What’s next for the hated Hate Crime Bill?
Free to Disagree – 16/12/2020
* The government has pledged amendments to strengthen free speech protections in the bill, including on the crucial point of debate around women’s rights and transgender identity. Free speech clauses must be robust, or legitimate debate on various issues could be chilled.
* The government has also promised to further-define the term ‘abusive’ in the stirring up hatred offences.
* One issue raised in last night’s debate that could be a sticking point is the idea of a ‘dwelling defence’, protecting words spoken in the privacy of the home. This protection is written into parallel hate crime laws in England and Wales. The Justice Committee notes that the Hate Crime and 
Public Order Bill should primarily be concerned with behaviour in public. But the government seems to disagree with this. Achieving consensus on the issue will be a challenge.

The Scottish Government has made the Hate Crime Bill controversial
Jenni Davidson (Holyrood Magazine) – 01/12/2020

‘Hate Crime Bill could stop women speaking out on trans issues’
Free to Disagree – 17/11/2020
Policy analysis collective Murray Blackburn Mackenzie (MBM) raised particular concerns over the inclusion of a ‘stirring up hatred’ offence on transgender identity.


Research & analysis

MBM Briefing for Stage 1 debate: Hate Crime and Public Order (Scotland) Bill
Excellent report that focuses on two areas: the exclusion of sex from the hate crime protected characteristics, and aspects of the extension of the offence of stirring up hatred.

Legislating for hatred against women: the view from the coalface
MBM analysis – 04/12/2020
Giving evidence to the Justice Committee on 27 October, the Cabinet Secretary suggested that organisations “at the coalface” were supportive of the approach advocated by the bodies funded at national level to represent women’s interests.
In total, therefore, the Scottish Government obtained the views of six groups providing VAW services locally, of which five supported including an aggravator which would cover hatred against women.
We realise that the term “coalface organisations”, as used by the Minister, is open to interpretation. Of the other non-governmental organisations attending these meetings, City of Edinburgh Council and the Fife Centre for Equalities supported an aggravator rather than a standalone offence, SACRO did not appear to take a strong line on which should be pursued, while Glasgow City Council preferred a standalone offence.
…we think it would be fairer to say that the balance of opinion among those “organisations that represent and work with women at the coalface at a local level” who engaged with the Scottish Government was overwhelmingly in favour of the Bill treating hatred against women on a par with hatred based on other characteristics, with or without further exploration of a standalone offence.

Definition of ‘transgender identity’ in draft hate crime bill
What Do They Know FOI request to Scottish Government – 25/10/2020
(Need to analyse and summarise – all correspondence between Scottish Government officials and the following organisations about the definition of ‘transgender identity’ under the  draft Hate Crime and Public Order (Scotland) Bill, prior to the Bill’s introduction in the Scottish Parliament: Equality Network/Scottish Trans Alliance, LGBT Youth Scotland and Stonewall)

In 2016, Nottinghamshire Police introduced a Misogyny Hate Crime policy. An evaluation on the impact of the policy was conducted two years later in 2018, and it highlighted some interesting points.

  • The Police were able to send a clear public message that behaviour which denigrates, marginalises and disrespects women is never acceptable and would be challenged. It also helped reassure women that these types of behaviours would be treated seriously by the Police if reported. See press release for more details.
  • Women felt more confident in challenging men who targeted them, as they knew they had the backing of police policy.
  • Women from BME groups often experienced misogyny hate crime and racial hate crime simultaneously and felt doubly vulnerable to attack.

The Nottinghamshire report did indicate that the use of the term ‘misogyny’ was poorly understood amongst the general public and therefore an alternative name would be a better approach. This indicates that any Hate Crime legislation should implement an easily understood term that makes it clear it is based on the characteristic of sex (and not conflate it with words like ‘gender’). In addition to the legislation, there might be some merit in nationwide campaigns to raise awareness of such laws and enable the general public to understand that hate crime involves the prejudicial targeting of people on the basis of a protected characteristic such as sex, and that it involves an assertion of power over another that is experienced as hostile behaviour rather than a narrow focus on ‘hate’.

Citizens UK – Make misogyny a hate crime

Citizens UK welcomes Law Commission’s recommendation to protect gender under hate crime laws

Citizens UK – New research shows women are three times more likely than men to experience both threats and acts of sexual violence and assault
Report – Overcoming everyday hate in the UK


Examples

Harry Miller vs Humberside Police and the College of Policing – 14/02/2020
High Court Judgement
Pages 13-15 describes how a person who does not know Mr Miller, and has never had any interaction with him, managed to take great offence at some of his tweets on the social media platform Twitter.
Pages 15-17 details the process of how the ‘victim’ proceeded to complain to the police and which resulted in the creation of a non-crime hate incident without any scrutiny or assessment of the claims being made. A Hate Incident Record was generated against Mr Miller even though there was no crime or evidence of hate.

The Times – 19/02/2020
Offensive jokes logged in ‘non-crime’ databases
In the past five years Police Scotland has logged more than 3,300 “hate incidents” that involve no criminality.

GCN – 20/11/2020
Community leaders have launched an open letter calling for solidarity for our trans siblings on this Trans Day of Remembrance.
Letter signed by organisations such as National Women’s Council of Ireland and Amnesty International.
“Let us say unequivocally that the statements of newly launched organisations that seek to defend biology or fight gender identity and expression do not represent the wider LGBTI+ community nor feminists in Ireland. More importantly, they are not organisations at all, they have no governance, no accountability, and are simply Twitter accounts. Further, they are not supported by the wider Irish community.”
We call on media, and politicians to no longer provide legitimate representation for those that share bigoted beliefs, that are aligned with far right ideologies and seek nothing but harm and division. These fringe internet accounts stand against affirmative medical care of transgender people, and they stand against the right to self-identification of transgender people in this country. In summation they stand against trans, women’s and gay rights by aligning themselves with far right tropes and stances. They have attacked LGBT+ education in school, attacked anti-bullying campaigns, and attack access to medical services.”
“Sex and gender are both spectrums, and the full beauty of that spectrum must be supported and included.”

(Letter indicates self-id has broad societal support and was obtained transparently. Can reference IGLYO and Denton’s document on how self-id was passed in Ireland without public debate and scrutiny.)

The Edinburgh Tab – 27/11/2020
More transphobic stickers have been found on Edinburgh Uni campus
This is a good example of how someone (not even a trans person) can take offence at some stickers seen around the area and view them as ‘hate’.
The woman mentioned in the article made the statement – “I also think hate speech is not free speech so I had every right to take them down.”
There is also another important admission in the article from EUSA’s Trans and Non-Binary Liberation Officer – “Anyone who sees stickers like this should send photos to campus security, so they can be included in ongoing hate crime statistics that are reported to the police.”
This shows that people are being encouraged to report to the police any stickers that they personally and subjectively deem to be ‘hateful’ or ‘offensive’ or ‘upsetting’. This will potentially inflate the hate crime statistics.
What happens when Hate Crime legislation is brought in and such stickers are viewed as ‘stirring up hatred’?

BBC News – 11/12/2020
Terror trial told of ‘incels’ cyber-culture backing attacks on women
This is a very clear (and ongoing) example of a hate crime on the basis of sex by inciting violence against women, and yet because ‘sex’ is not listed as a characteristic in the Hate Crime legislation, this fact will not be used as an aggravating factor during sentencing, nor will this crime be captured in hate crime statistics.


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There’s been an outbreak of slates…

Wonderful messages written on slates have been appearing all over Scotland, thanks to some adventurous women. Do you think you can spot some of the slates for yourselves? If you do, share your pictures on Twitter with the hashtag #WomenWontWheest.

The Edinburgh Reporter ran a brief article on the campaign – National campaign arrives in Edinburgh (22 November 2020)

Click on each location to view the slates placed in the area.

Link to Flickr Photostream

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