In Depth

Controversial transgender and migration views are not hate crimes, says report

Law Commission decides that gender critical arguments should be protected as ‘freedom of expression’

Outspoken views on gender identity and immigration should be protected under hate crime laws, according to a new report by the Law Commission published today.

The findings of a consultation by the commission, an independent body that recommends legal changes, said those expressing gender critical views – defined as “a belief that sex is binary and immutable and that a person cannot change their sex” – should be protected under a new “freedom of expression” clause.

Maya Forstater, who won a landmark appeal against an employment tribunal ruling after she lost her job for saying people cannot change biological sex, said it was “vindication for her battle to say basic truths about the two sexes”, reported The Daily Telegraph

The report – which proposes the biggest overhaul of hate crime laws in decades – said that the protection of gender critical views would extend to the use of language and pronouns. However, it added that an “interference” with someone’s right to express such views could be justified “for instance if it amounted to unlawful harassment”.

Views on migration

The commission also recommended the introduction of a new “freedom of expression” protection for discussion and criticism of policy relating to immigration, citizenship and asylum. 

An example was given of when former home secretary Amber Rudd was investigated over a 2016 speech to the Conservative Party conference, in which she suggested that firms might be required to disclose the proportion of foreign workers they employ. 

“Despite concluding that no offence had been committed, West Midlands Police recorded it as a non-crime hate incident,” the report explained. 

Therefore, the commission added, the possibility of people bringing “politically motivated and vexatious complaints” under current hate crime laws “is real”. “If these are (rightly) rebuffed by police and/or prosecutors, there is a real danger that in the absence of a consent provision, private prosecutions might be brought.”

Misogyny proposal rejected

The report rejected a proposal to make misogyny a hate crime, concluding that “simply adding sex or gender to hate crime laws” was “unlikely to capture much public sexual harassment”. Instead it recommended “more targeted options”, for example the introduction of a possible public sexual harassment offence, separate to hate crime laws.

A statement made by 20 leading women’s rights and hate crime organisations and campaigners, published by The Guardian, said that the commission had failed to address “widespread concerns about lack of action by the criminal justice system” and didn’t “recognise the value of including misogyny to enable recording of incidents, which are currently invisible”.

‘Leap forward for safety of LGBTQ+ people’

LGBTQ+ campaigners applauded the Law Commission for recommending that the term “transgender identity”, which is currently in hate crime laws, should be replaced with “transgender or gender diverse identity”.

This would mean the inclusion of people who are transgender or transsexual men or women, people who are gender diverse (such as non-binary people), and those who do not conform with conventional male or female gender expectations (for example, people who cross-dress).

Stonewall described the report as “a huge leap forward for the safety of LGBTQ+ people”. In a lengthy Twitter thread, the charity said that the commission had “displayed commitment” to ensuring that “the UK’s most marginalised communities will be better protected by hate crime legislation”.

Stonewall also welcomed the Law Commission’s “inclusive approach” in expanding the definition of sexual orientation and trans identities to ensure the protection of “asexual, non-binary and gender-diverse people”.

However, the charity added that it was “deeply disappointed” by the recommendation to not make misogyny a hate crime. “Misogyny in our society is pervasive, deep rooted and profoundly damaging,” said the charity, adding: “This provision is crucial if women, including LGBTQ+ women, are to be protected from hate crimes.”

In a statement provided to the BBC, the Home Office promised to consider the commission’s proposals “carefully” and “respond to the recommendations in due course”.

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