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Emma Webb is a Radical Associate, and the Director of the Forum on Integration, Democracy and Extremism (FIDE) at Civitas.

Last weekend, author JK Rowling stuck her head above the parapet again by criticising the phrase “people who menstruate”.

“I’m sure there used to be a word for those people”, she Tweeted, “Someone help me out. Wumben? Wimpund? Woomud?”. Responding to her critics she explained that she was opposed to the erasure of the concept of sex. An entirely reasonable position to take, but one that has become heretical wrong-think in some quarters.

Our policing of language, whether by law or by mob, is leading us down a dangerous road that must be resisted.

In May, the United Nations Tweeted advice on how we should speak. We should say “humankind” instead of “mankind”, “owner” instead of “landlord”, “partner” instead of “boyfriend/girlfriend”, “family name” instead of “maiden name”, “spouse” instead of “husband” and “wife”. Doing so, they said, would “create a more equal world by using gender neutral language if you are unsure about someone’s gender or are referring to a group”.

This is not the first time in recent months that an international organisation has issued such advice. In March the World Health Organisation told the public to use some words and avoid others when talking about the Coronavirus. We should avoid calling it “Wuhan virus”, “Chinese virus” or “Asian virus”, and should speak of “contracting” not of “transmitting” or “spreading” Covid-19 because, according to WHO’s General Director “stigma, to be honest, is more dangerous than the virus itself”.

It is increasingly accepted that policing expression is a path to a better society – and this should worry us immensely. On our own shores, the same can be found in the recent Hate Crime and Public Order (Scotland) Bill, particularly its creation of “offences relating to stirring up hatred”. The minister behind the Bill, Humza Yousaf, the Scottish Justice Secretary, explained the motivation for this legislation: “we all have a responsibility to challenge prejudice in order to ensure Scotland is the inclusive and respectful society we want it to be”.

In the minister’s opinion, this can be engineered through legislation. Commenting on the Bill, he said, “Stirring up of hatred can contribute to a social atmosphere in which discrimination is accepted as normal. By creating robust laws for the justice system, parliament will send a strong message to victims, perpetrators, communities and to wider society that offences motivated by prejudice will be treated seriously and will not be tolerated”.

I have written elsewhere about the implications of this for freedom of expression about religion – but the Bill would also cause real problems in the ongoing debate around transgenderism and the Gender Recognition Act.

The protected groups named by the Bill are expanded to include: age, disability, religion (social, cultural group, perceived religious affiliation), sexual orientation, transgender identity, and variations in sex characteristics.

“Stirring up hatred” against these groups, according to the Bill, is defined as behaving in a threatening, abusive or insulting manner, or sending, showing or making available such material to another person. It makes a crime of displaying, publishing or distributing “material that stirs up hatred”. It is irrelevant if an individual intends to “stir up hatred” – it is enough that “it is likely that hatred will be stirred up”.

The Bill makes the possession of “inflammatory material” illegal giving a judge the power to grant a warrant for the police to search your home, seize and destroy relevant material. Most authoritarian of all, the Bill specifically states that public performances – plays – will also be subject to this, seeing directors and actors brought before a court. These offences may result in up to seven years in prison.

As pointed out by writer Stephen Daisley “this Bill comes in the middle of a debate about the law on gender identity. That debate is characterised by robust, often belligerent rhetoric, especially on social media.” Feminists are often derided as “TERFS” – trans-exclusionary radical feminists – and critics are called transphobic for arguing that sex is a biological fact.

A Bill such as this would have a very real negative impact on debate over this issue. All we need to do is look at how some have already been persecuted for taking certain positions.

Take think-tanker Maya Forstater who was fired after tweeting that transgender women could not change their biological sex. She brought a test case against her former employer, the Centre for Global Development (CGD) to ensure that gender critical views – that there are only two biological sexes – is protected under the equality act. The judge ruled that her views were “not worthy of respect in a democratic society”, and she lost the case.

Or the ‘cancelling’ and no-platforming of those with gender critical views on university campuses, like feminist firebrand Germain Greer for her view that trans women are “not women”.

The complexities of how this Bill could be used to silence dissent are obvious – it would result in an identity politics crossfire that would make discussions of public interest impossible. Take the case of David Mackereth, the Christian doctor who was sacked for refusing to use gender pronouns because he believed compelling him to do so was “a ritual denial of an obvious truth” and against his conscience and religious beliefs. He argued that the Department for Work and Pensions discriminated against his religious belief by suspending him, while they described his stance as “unwanted conduct”.

Even the LGB Alliance, a breakaway group from LGBT+ activist group Stonewall, describes itself as “asserting the right of lesbians, bisexuals and gay men to define themselves as same-sex attracted” has been criticised for transphobia. As Debbie Hayton writes in The Spectator “when homosexual people declare themselves to be attracted to the same sex, as opposed to the same gender, they risk being attacked and shamed as transphobic bigots”.

Currently the verdict is out on the Gender Recognition Act (GRA). Current practice which, for safeguarding reasons, requires an individual to have a formal diagnosis of gender dysphoria, live in the acquired gender for two years, and provide supporting evidence to a panel of clinicians; the GRA seeks to require no medical diagnosis or evidence and would make it easier to transition, including for 16-17 year olds.

Rightly, there are objections. Liz Truss, the Minister for Women and Equalities, recently announced the intention to protect single-sex spaces and to protect younger people. Reports suggest this may include banning ‘gender confirmation surgery’ for under 18s.

Some activists were unhappy about this; notably influential Stonewall. One article in Pink News described her announcement as an “attack on transgender youth”. It is easy enough to see that the Bill’s “abusive or insulting” would be used on this battleground, and how detrimental it would be to open debate.

As Orwell asked, “Don’t you see that the whole aim of Newspeak is to narrow the range of thought? In the end we shall make thought-crime literally impossible, because there will be no words in which to express it”.

The implicit – and dangerous – idea is that you can change hearts and minds with law, and build a particular vision of society, by limiting expression. But as one commentator noted “criminal law isn’t ethics. What is legal doesn’t – and shouldn’t – exhaust an analysis of what’s right and wrong to do and say and encourage others to think”.

The Hate Crime and Public Order (Scotland) Bill abolishes the offence of blasphemy, at the same time introducing a more far-ranging equivalent that seeks to protect new “sacred” beliefs. If it is successful, its impact will not stop at the Scottish border.

100 comments for: Emma Webb: Scotland’s new Hate Crime Bill imposes a new system of blasphemy. It urgently needs rejecting.

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