Women won't have to 'self-censor' in transgender debate, Justice Secretary Humza Yousaf insists

The promise came the day after one of the SNP's most outspoken defenders of women's rights, the MP Joanna Cherry, was sacked from the Westminster frontbench, in part because of criticism from trans rights activists.

Mr Yousaf gave the assurance to Holyrood’s justice committee as it considered detailed amendments at Stage 2 of the Scottish Government’s Hate Crime Bill.

He also withdrew a Government amendment that would have protected “criticism” of matters relating to transgender identity as freedom of expression.

The committee will now try to add a catch-all clause that protects freedom of expression, including the offensive and shocking, but does not create a loophole for bigotry.

Tory convener Adam Tomkins said he was “disturbed” by some reaction to now abandoned amendments intended to allow criticism and discussion of transgender rights.

Without naming him, he singled out Green MSP Patrick Harvie’s claim that some amendments tabled by MSPs to the Bill had been “shockingly and overtly transphobic”.

Professor Tomkins said it was not transphobic to say that sex, as opposed to a gender choice, was “an immutable biological characteristic”, or that there were "only two sexes".

READ MORE: SNP U-turn over transgender rights and Hate Crime Bill

The Hate Crime Bill has been criticised by the religious groups, charities, academics, legal and policing bodies, with opponents warning it restricts freedom on speech, including in the home.

The original Bill would have updated the characteristics protected in law from hate crimes with new offences for behaviour “likely” to stir up hatred, whether intentional or not.

Mr Yousaf later agreed to change that so that offences were based on intent. 

Labour MSP Rhoda Grant last week tabled an amendment which said behaviour or material would not regarded as threatening or abusive if it was “for the purpose of advocating for women’s rights”.  

Some women fear extension of transgender rights, including self-identification, encroach on sex-based women’s rights.

But Mr Yousaf said Ms Grant's amendment could create a loophole, with a superficial discussion of women’s rights being used as cover for racism or transphobia.

He said: “I absolutely recognise that there are well-founded, well-held and sincerely held beliefs from many women that they have a concern that they would have to self-censor due to what is in the Hate Crime Bill. 

“That is absolutely not the intention of the Bill, and I am committed to providing reassurance through a freedom of expression clause, hopefully a broad freedom of expression clause that can apply to all characteristics, that we can give that comfort to the many women who have raised these concerns.

“The new offences can only be committed where behaviour is threatening or abusive, and if my amendments are agreed... intended to stir up hatred.

“I know the amendment is well-intentioned but it is deeply flawed.

“It could mean, for example, that somebody could, under the guise of advocating women’s rights could engage in racism, homophobia, Islamophobia, anti-Semitism, and that would be covered by this freedom of expression clause.”

Ms Grant later withdrew the amendment as part of the committee’s effort to reach consensus on a catch-all freedom of speech protection.

However Prof Tomkins warned that could add to the biggest problems faced by the Bill - vagueness and overbreadth - and specific texts may well be better.

Prof Adam Tomkins, Justice Committee convener, 2-2-21

He said: “It seems to me the events of the last few days, the reaction to the amendments that have been put down in this group with regard to transgender identity, make it just even more obvious and apparent that we absolutely must define what we mean.

“I have been disturbed by the reaction I’ve seen to what I thought were quote modest innocent, and perfectly reasonable amendments [including from Mr Yousaf].

“But it’s clear that even the words the Cabinet Secretary has carefully chosen... have caused fear, alarm and distress. I take that fear, alarm and distress very seriously, but I also have to say that I am alarmed, distressed and perhaps if I’m honest even a little afraid of the reaction, or aspects of the reaction to it.

“Yesterday a leader of one of the parties in the Scottish Parliament [Mr Harvie] tweeted that in his view a number of the amendments put down to the Hate Crime Bill for Stage 2 were shockingly and overtly transphobic.

“I have struggled to find an amendment... that I thought was shockingly or overtly transphobic.

“If we take for example the words of [Tory MSP] Liam Kerr’s amendment... ‘stating that sex is an immutable biological characteristic’ does not make you transphobic.

“‘Stating that there are only two sexes’, does that make you transphobic? Really?

“Using the word ‘woman’ or ‘man’ and equivalent terms and pronouns in a certain way, does that make you transphobic? Is that the sort of speech we are trying to criminalise here?”

READ MORE: Joanna Cherry accuses colleagues of 'lies and smears' after receiving threat

Liberal Democrat MSP Liam Mcarthur initially tabled an amendment to create a catch-all protection for freedom of speech but withdrew it in order to improve it.

This caused all the other freedom of speech amendments based on it to fall as well.

The Government wants the Bill passed before May's Holyrood election.

Mr McArthur said after the committee: "This legislation needs to include a robust protection of freedom of speech, that provides clarity about what is being criminalised while avoiding targeting or marginalising groups. 

“My preference was to establish a clear ‘catch all’ freedom of expression provision and I'm pleased members of the Justice Committee recognised that this could bring fairness and equality.

"Stage 2 amounted to an impasse. 

“This leaves a lot to be decided at the final parliamentary hurdle. It means there is only one chance remaining to get this legislation right. 

“It is essential to now have open, inclusive and measured discussions ahead of Stage 3 [the final vote]."

But critics of the Hate Crime Bill said nothing had been resolved and questioned if MSPs could come up with a catch-all protection in just a few weeks.

Jamie Gillies, spokesman for the Free to Disagree campaign, said: “Today’s proceedings have driven a coach and horses through previous assurances offered by the Scottish Government. The issue of free speech protections remains wholly unresolved. 

“MSPs on the committee have pledged to come up with a ‘catch-all’ free speech provision before Stage 3. 

“However, drafting a provision that allows robust speech on the plethora of topics associated with the characteristics covered - not least contentious topics like transgender identity - will be no easy task. 

“In all likelihood, the final result will be a weak, ill-defined clause that lacks the forensic detail required for criminal legislation.

“To make matters worse, MSPs will only have a few weeks to come up with a clause, outwith the normal parliamentary processes and behind closed doors. 

“If an amendment is not agreed upon and approved at Stage 3, the bill could pass without any specific free speech protections.

“Free speech is the lifeblood of democracy. If a suitable solution cannot be found in the next few weeks, MSPs must not leave anything to chance - they must reject the Hate Crime Bill outright.”