Help with Law Commission consultation on hate crime

[happydappy2]

Consultation Question 8: We provisionally propose that the current definition of “transgender” in hate crime laws be revised to include:
People who are or are presumed to be transgender
People who are or are presumed to be non-binary
People who cross dress (or are presumed to cross dress); and
People who are or are presumed to be intersex

Pls can anyone link to any advice on filling out this consultation? Want to get it right as is so important, otherwise am worried that if I ask a cross dressing male to leave the womens toilets I could be done for hate crime! Does a crime have to be committed and then the 'hate' element is an aggravating factor? anyone else done this consultation?

There is a right old hotch potch of several different laws and offences for different groups and protected characteristics that make up the hate crime laws.

Hate crime for transgender isn't an aggravated offence but it must be criminal behaviour, for instance Public Order Act 1986 offences akin to harassment or verbal abuse causing alarm or distress or it could something like intimidation, threats or actual assault and because it is showing, or being based on, hostility or prejudice against a protected characteristic, faces an increased sentence as provided in the Criminal Justice Act 2003.

The CPS website has published material on hate crime:
"Trans or transgender are terms for people whose gender identity does not correspond with their birth gender. The terms ‘transgender’ and ‘transgender identity’ are used in the hate crime legislation and include references to being transsexual, or undergoing, proposing to undergo, or having undergone a process or part of a process of gender reassignment.
Gender identity is one of the most commonly used terms to acknowledge the gender spectrum. It includes those who identify as male and female and incorporates intersex, gender nonconforming or gender variance, for example those who might identify as non-gender, non-binary or gender fluid as well as those within the gender reassignment definition in the Equality Act 2010."
www.cps.gov.uk/sites/default/files/documents/publications/homophobic-biphobic-transphobic-hate-crime-public-statement-2017.pdf

No mention of cross dressers, though.

In addition to the hate crime as described (2nd para above), there are specific offences of racially or religiously aggravated crime; of incitement to racial hatred; of football ground racial crime; and of intentional stirring up of hatred on grounds of race or religion or sexual orientation. However there is no equivalent specific offence for trans.

Intersex is not transgender, that's terrible framing.

With that paragraph based on the 'spectrum' idea of gender identity they have gone beyond gender reassignment or a process of some sort and thrown in everything they could think of, including variance, non binary and genderfluid, whatever they might be, in the absence of any definition or means of ascertaining what they mean.

That anticipates much of what the Law Commission is proposing, as outlined by the OP above, except that the Commission also includes cross dressing. Interesting that both CPS and Commission include intersex.

Interesting (terrifying) article on this consultation.
thecritic.co.uk/the-establishment-doesnt-understand-free-speech/

Bumping this - have Woman's Place, FPFW etc published any guidance? I want to respond to this one but would benefit from some help in getting my points across clearly.

Hello all, I haven't been able to find much guidance on this consultation, but I have scraped some information together.

womenspeakscotland.com/2020/12/21/the-law-commission-consultation-on-hate-crime/

If there's any other links or useful information you think would help, let me know and I'll add it to the page so it's easy for others to reference.

Deadline is this Thursday!

Thanks for this.
I'm finding this the worst consultation EVER. It's so technical. Half the time I'm totally confused about what they're proposing. I've been doing it for 2 days, and just when I think I've finished I find a whole lot more idiotic questions.
In the free speech bit I'm adding compelled speech to their suggestions, re pronouns and court cases like Maria, and the forcing of rape, sexual assault victims to call the rapist 'she' under oath.

Yes, the questions are really technical. I've been looking at the Stirring up section for the past couple of days and getting a headache. 😣

I have tried and tried, but struggled to respond to this. I assume it will be ripe for JR. For example, it's 500-odd pages, so how accessible to people with disabilities is it?

In just one of the many things wrong with it from a lawful consultation perspective, it says: “For the purposes of hate crime categories, we have decided to distinguish between binary gender and genders that exist beyond the “male” and “female” binary”. This looks like they've already decided part of the outcome - a massive no-no for public consultations. Additionally, in doing that, it means that their proposals will include whoever “could be a woman”. That goes way beyond the Equality Act and surely it's also impossible to tell if someone "could be [insert any protected characteristic but they chose to aim this at women]".

It's very hard to make sense of why the actual fuck they decided to include the fact that the law doesn't protect anyone with a fetish. Presumably that's an example of unnecessary information, which just adds to the enormity of this document, which makes one wonder why it's there. Unless this is a precursor to protecting anyone with a fetish.

I'm nearly there with mine, have decided to skip massive chunks as I just don't have the time. The full supporting doc is 544 pages and it's nearly Christmas (or what's left of it) FFs!

I'm determined to complete and send tomorrow. Will include my main observations here tomorrow when I've had a moment to pull out the main clangers.

Took us almost three days and a large amount of alcohol (and swearing). It's the most incoherent document I have ever had the misfortune to come across. Even more than the malicious Communications one (two days, lots of alcohol, swearing, and a whole giant bar of chocolate in one sitting) and that was totally barking.

Suggest you answer most questions with the equivalent of 'the legislation is not fit for purpose' or 'legislation based on such amorphous concepts is unworkable and would rapidly fall in to disrepute'. Or 'oh just FRO you idiots'.

Just concentrate on the key questions - the ones that are likely to be used to silence GC campaigners and women generally. And the conflation of sex & gender lunacy - the recent Scottish Forensic Medicine law highlights the importance of getting this right.

Specific problems are: definitions are ambiguous and subjective; the proposal criminalises non-crime (and sarcasm, disagreement, rudeness) and undermines free speech; there does not have to be proven harm - other than offence - an extraordinary leap into totalitarianism; the concept of 'serious emotional harm' is subjective and open to misuse/abuse (as has already happened - Harry Miller, Maya Forstater, JKRowling etc). Provide examples from GC 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.”

Thank you so much MerchedCymru!

There is a case for this complexity being anti-democratic. Large tracts of the population would be unable/unwilling to give their views. Was the intention to only have the legal profession submit?

This has then to go through Parliament which is going to throw up a mass more issues, the clear point at which MSP's are bombarded with women's opinions, hopefully. Not Scottish but very interested. Good luck. Answer whatever you can, it will count

Merch nails it so I will only add...

Who decides a protected characteristic
How do you include everyone (redheads, albino people...trans/cross dressers belongs under subculture in my view as it's based on how you dress)
How do you do this without creating a hierarchy and more division/hatred?
Why exclude Sex (misogyny / misandry...you can't have it both ways and maybe the police should catch and prosecute rapists as I'm seeing that as a hate crime if we're going to have hate crime...)

The football section is interesting but we already have laws that cover what they suggest and an attempt to include homophobia in football chanting in Scotland didn't work as far as I recall.

Too Qs to answer without getting too technical for me are

Sex or Gender
Stirring Up hatred
Religion/Faith
Disability

And then maybe Aggravated Sentencing if you can face it.

Who decides a protected characteristic

Parliament! I just can't understand what they're doing with this. Is it an EQA consultation in disguise?**

I think the amorphous concept is a good route. If something is going to carry a criminal penalty then it must be based on clearly understandable criteria.

The Scottow 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.” per Warby J
www.judiciary.uk/wp-content/uploads/2020/12/Scottow-v-CPS-judgment-161220.pdf

Yes, and that "gender" can in practice refer to trans identity, "genderfluid" or a plethora of "non binary" identities and things like "maverique" which can't easily be defined in law and basically boil down to "I'm not like other girls/boys" or "I'm too special to be a boring man, woman or even what most people think of as a trans person".

We're supposed to solemnly respect this type of view:

deconforming.com/gender-identities/

Please could someone tell me the closing date for this. Thank you

Sorry to tell you Red it's 24th.

In case any of you are still at it, here's a great legal quote taken from Maya F's review of 2020 (worth reading in its own right but also as a warning about the possible implications of the Hate Crime proposals).

"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'."

Too right.

Have done it, I just hope it gives them as much pain as it has me.

Well done Imnobody4! Have yourself a sweet sherry and a small suitcase of used banknotes from this nice bunch of evangelical Trumpists I happen to know.

Also done! I'll take some banknotes and a Sherry too please.

Sure. Plenty more where they came from Holy.

I feel like the fact we do have hate crime laws but they don’t seem to be applied to women is wrong. Outlining who’s protected and who not makes it seem like the aggression and misogyny either isn’t happening to women or (because everyone knows it is happening!) is happening and just doesn’t matter.

A lot of resources have been spent on campaigns aimed at the public over the years establishing hate crimes as an offence, which raises public expectations that hate crime abuse is not to be tolerated and also encourages third party reporting when hate crime is witnessed. 2021’s Transport for London campaign encourages passengers to report hate crimes for example, but they’ve run similar campaigns in previous years:

www.campaignlive.co.uk/article/tfl-urges-public-stand-against-hate-crimes-londons-transport-network/1719590

‘TfL urges public to take a stand against hate crimes on London’s transport network. Using #TogetherAgainstHate, TfL wants to encourage the reporting of incidents on the network.’

More here:
‘Hate crime on public transport
The impact of hate crime is far reaching, affecting a person’s well-being through unfair treatment and division within communities. The crime does not have to include physical violence – hate crime can be verbal too. If you are targeted because of who you are, or who a perpetrator thinks you are, it is a hate crime. Hate crime is a crime that is targeted at a person because of hostility or prejudice towards that person’s actual or perceived:

Disability
Race or ethnicity
Religion or belief
Sexual orientation
Gender identity‘

madeby.tfl.gov.uk/2021/06/04/i-stand-with/

I think ignoring misogyny, as the hate crime law currently does, just underlines how women’s feelings of offence, or of our feeling intimidated, are only seen as worthy of acknowledgment or action if that same experience could affect a man too.