the brilliantly leaping gazelle

“Sometimes, it’s hard to be a woman.” So sang Tammy Wynette in her 1968 hit ‘Stand by your man’, and if Tammy found it hard then, she’d find it incalculably harder in the Scotland of 2024. Even asserting that a woman is a biological female and not a man who likes fancy dress, can have you arrested and imprisoned, thanks to their new Hate Crime Bill (HCB). Welcome to the even more enlightened version of the Enlightenment, where some people are so enlightened that they believe that women can have penises.

Not since Westminster passed the Trade Union Act of 2016, has legislation been passed that expressly increases the rights of a very small minority at the cost of weakening them for the majority. That the HCB was introduced into law on April Fools Day is telling, not least it passed into law by the Scottish parliament in April 2021, and the delaying bringing it into force results from police concerns as to how exactly it is be implemented. 

So this post is concerned with why this confusion exists and to do this I’ll be quoting not just from the law itself, but from the Explanatory Notes (EN) that accompany it. Think of the attention grabbing headline in a news article and the boring details hidden in paragraph eight that hardly anyone ever reads and you’ll get the idea. 

My main problem with the HCB, aside from its curtailing of free expression and blatant authoritarianism, is its imprecise use of language. Now it may seem ironic for me to focus on this, given how often my posts will have words missing here and there, but I am brain damaged, whilst the civil servants responsible for its drafting and the politicians responsible for scrutinising it line by line at committee stage before finally voting it into law, are not. 

The HCB chooses when to be specific – as it does when defining who the law is designed to protect in Section 1 and throughout –  and when to believe that certain other words or phrases have a commonly agreed and understood meaning, giving the HCB an excuse not to provide one. ‘Malice and ill-will’ are two such examples of this kind of laxity and whilst these words may have a meaning in the publics mind, legally there isn’t an agreed one. Although these words crop up with alarming frequency in the early sections of the HCB as something the accused must be guilty of demonstrating toward the victim if an offence is deemed to have taken place, it is assumed everyone accepts the unspoken meaning.

Nowhere is this presumed osmosis more disingenuously used as when the HCB makes continual references to what a ‘reasonable person’ might consider this or that to be. The this and the that includes racial harassment, threatening behaviour and offensive material, to name but three. But the very notion that there even is such a thing as a ‘reasonable person’ is utter nonsense. Everyone imagines themselves to be reasonable and everyone else to be on the spectrum of unreasonableness. More importantly, this absurd fantasy imagining of what constitutes being a ‘reasonable person’ is dangerously naive, especially if it is left to the ‘victim’ to determine what ‘a reasonable person’ might think. 

One of the most chilling aspects of the HCB is not just the scope of what is communicated might be, but the detailed way in which it sets out in its EN how they might be communicated.

Behaviour or material which is threatening or abusive could arise in any setting, such as—

• on social media, such as Twitter, Facebook etc.,
• at the dinner table or elsewhere in the home,
• in an office or workplace,
• in a teaching environment, including religious education,
• during a religious sermon or as part of religious preaching or practice,
• in a public or private meeting,
• in a newspaper, blogpost or other media setting,
• when performing, including in a play or a show on stage or in a film.

Can anyone else hear the clocks strike 13?

One of the great fallacies of the HCB is that it is predicated upon a fundamental misconception of society, namely one that suggests that people only exist either as potential victim, or else as a potential offender.

If my reading of both recent Scottish political activism and the HCB are correct, the act will embolden those transgender activists who wish to use fit or vengeful and malicious reasons and to silence gender critical feminists. They will use it as a weapon in their ongoing struggle against the reality of biological sex and to not reaffirm their narrative of being part of an oppressed minority but then also to change that narrative so that they have now the power, they have agency. Which is great for them, all 24,000 fancy dress enthusiasts, or 0.5% of Scotlands population but not the 2.8 million Scottish women or 51% who make up the rest of it.

Which makes it all the more galling for those transgender activists anticipating a judicial gag on opinions that don’t match their delusion, the that HCB grudgingly concedes that the right to freedom of expression as contained in Article 10 of the European Convention on Human Rights, includes the general principle that the right applies to the expression of information or ideas that offend, shock or disturb. Basically, an acknowledgement of the fact that the HCB is liable to a successful challenge on that basis and that everything in the HCB can be contested. Meaning that the only winners in all of this will be the estate agents, luxury car dealers and stock brokers of the lawyers who’ll spend years sorting this out, before taking it to Europe.

It’s as if the Scottish parliament has effectively ceded responsibility for sorting out what the HCB means to lawyers. So it isn’t J.K Rowling who should be worried, she has enough fame and wealth to protect her for now, but rather those without her fame, wealth and time needed to mount a robust and costly legal defence. It is those women upon whom the law will be first tested, allowing legal precedents to be set, case law to be established and judgments to be be referenced that are the one’s who’ll suffer most. Why would anyone run a race without first having done the training needed to win?

And Tammy was wrong. It isn’t hard to be a woman, well certainly not for the vast majority of trans women who haven’t yet had genital reconstruction surgery.