Will police officers come round in the middle of the night to cart people off to jail because of how they define womanhood? Will arrests be made over academic theses or misremembered pronouns? Of course not – but if you read some of the wild stories circulating on social media you could easily get that impression, and the media haven’t done a great job of clearing up the confusion.
More attention has been paid to the thoughts of the rich and famous than to those of lawyers or experts in the field. It’s time to take a sober look at the legislation that has sparked this panic, what it does and what it’s actually for.
The Hate Crime and Public Order (Scotland) Act 2021, which came into force, aims to equalise protections for groups often targeted as a result of hate. It addresses crimes which are motivated by hatred based on age, disability, religion, sexual orientation, variations in sex characteristics (affecting intersex people) or gender identity. It also brings pre-existing protections based on race under the same legal umbrella.
What about women?
You might note that something is missing here – sex. What about crimes inspired by misogyny? Although many people campaigned for this, it has not been included because the people who worked on the bill believe that it requires its own piece of legislation. The argument is that because misogyny is more deeply embedded in our society and is often unconscious, it raises different issues that must be given careful consideration if legislation is to be effective.
As a longstanding campaigner on equality issues, I have been told before, by people working in other jurisdictions, they are hesitant to make misogyny a crime simply because there is so much of it – they wouldn’t have the resources to actually apply the law. Could that be the case here? Some people will undoubtedly be concerned that it is. Meanwhile, the police have expressed concern that they will struggle to enforce the new Act properly because they simply don’t have enough staff to investigate every complaint, as it states they should.
How this will play out remains to be seen, but the idea of deep societal problems going unaddressed due to a lack of resources will not sit well with many people. We may need to take a fresh look at our priorities as a country and consider how we allocate resources. In doing so we should of course factor in the economic cost of hate, which affects victims’ ability to participate fully in society, including taking the jobs or courses they would like to, and travelling to and from work or study.
How will the hate crime law work?
Like previous hate crime law, most of what the Act does is affect sentencing for established crimes. For instance, if one man hits another, he can already be convicted of assault, but if it’s clear that he did so because he didn’t like old people, then he will get a heavier sentence. This takes account of the fact that in a case like this it’s not only the immediate victim who is harmed. Such an assault is likely to have an intimidatory effect on other old people who will feel less safe and less able to go about their lives as usual.
The additional element of the legislation, which is attracting most of the controversy, is the offence of stirring up hatred. This can be applied in situations where somebody encourages others to hate members of one of the above-mentioned groups. For instance, if somebody goes around telling others that disabled people are a drain on society and should be got rid of, that person can be prosecuted, reducing the risk that others will be inspired to harm disabled people, and allowing disabled people to feel safer because a threat is being dealt with.
The limits of the law
The ‘stirring up’ part of the legislation specifies that it addresses only attempts to promote hatred. It does not mean that people will be prosecuted just for having opinions, or for discussing their opinions in a way that doesn’t encourage others to do harm, or even for being insulting towards members of a particular group.
Could someone be in trouble for using insults? Could they fall afoul of the law for misgendering a trans person, for instance? Yes – but, crucially, only if they were doing so in a context that was already criminal. By this token, a single instance of upsetting someone by using a particular pronoun, for instance, would be highly unlikely to count. Following someone around and persistently using the wrong pronoun for them, when it was clear that it was causing distress could, however, constitute transphobic harassment – because following someone around and persistently upsetting them could be considered harassment to begin with.
With this in mind, it is possible that we will see prosecutions if people try to test the limits of the law to make a point. But there’s no other reason why somebody who was minding their own business and not trying to stir up hatred or cause distress to others would be in trouble. There is also a specific defence against this law on the grounds that behaviour was reasonable.
How the new hate crime law will help
Why is legislation like this needed? As noted, the police, who monitor it day to day, think hatred is rife in our society. It’s more frequent for some groups than others, and who it’s targeted at varies over time for political and cultural reasons. For instance, hate crimes against disabled people have recently risen in Scotland, which many disabled people associate with increased negative characterisation of them by right-wing politicians. The rise of online cults around figures like Andrew Tate is seen by many as intrinsically linked to a rise in misogyny among boys and young men.
Experts note that all hate crime tends to get worse in tough economic times, as minorities are treated as scapegoats or simply outlets for frustration. We also know that, even if the UK economy gets back on track under a new government, climate change is going to hit our economy hard in the future. We don’t need to give in and just watch society become more hateful. We can take action to deal with those who are directly causing damage, and we can stand together to protect those most at risk. By educating and encouraging empathy, we can build a healthier, more positive, more united society which values all its citizens and is better equipped to face the challenges of the future.
Read more on the topic of inclusion from Jennie Kermode.
