Joyce activated, issue 80

Today Scotland’s Hate Crime Act comes into force. It was passed nearly three years ago, and despite many warnings at the time that its main use in practice would be to harass women campaigning for sex-based rights, the whole thing was basically parked – until a few weeks ago, as the moment it would come into effect approached.

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A fair amount of the recent commentary has been by lawyers I respect, saying that all the things Scottish campaigners like MurrayBlackburnMackenzie and For Women Scotland worry about so much would not, in fact, reach the threshold for being considered hateful under the new act. 

Other commentary has been far more dismissive. First minister Humza Yousaf has criticised what he called “disinformation and inaccuracy”.  Writing in the Scottish Herald, Adam Tomkins, a professor of public law and former convener of the Scottish Parliament’s Justice Committee, said “propagandists on both sides want to turn up the heat”. Pointing out that “the threshold of criminal liability is not that a victim feels offended (a subjective test), but that a reasonable person would consider the perpetrator’s action or speech to be threatening or abusive (an objective test)”, he even claimed that the law could be a “success”.

And then there’s the outright up-means-downism of this, from barrister Sam Fowles (enjoyable community note, however; do click through).

Colour me unreassured. Public communications from both the Scottish government and Police Scotland have emphasised hurt feelings as proof of hatefulness, and perception as the sole test. People are being encouraged to report anything they witness that they consider hateful – including if it’s directed at someone else. You don’t have to report to the police – you can use one of hundreds of third-party reporting centres, including a mushroom farm and a sex shop, and do so anonymously, if you like. That seriously undermines the claim by Yousaf that the police would deal seriously with people who made “vexatious complaints” – a claim made during a visit to a soft play centre over Easter weekend; seriously, does he not have PR advisors! Sir Humphrey would never have allowed his minister to go somewhere that offered such opportunities for headline writers.

The Sensibles who tell us women to “calm down, dear” point out, correctly, that there have been similar sanctions for racially motivated hatred for quite some time. This misses some big points. 

The first is that there isn’t generally any reason for the ordinary person to use racial slurs if they’re not motivated by racial animus – most of us neither need nor want to use the n-word. I say “ordinary person” because someone may wish to use racial slurs in a play or film, in publishing or other media, in academia or simply to make a point about free speech – and I’m sympathetic to all of those uses. But a decently designed law can distinguish those cases pretty easily. 

I recognise this isn’t a defence of free speech at the level of America’s first amendment – and I am absolutely willing to make such a defence, but I’m doing something else here. I’m saying that a law that catches the use of racial slurs without such justifications won’t, as a matter of simple fact, catch much innocent, ordinary behaviour. When it comes to the new “transgender” strand in the Scottish law, the situation is quite different. Trans lobby groups have spent at least a decade spinning the yarn that calling a trans-identified man a man is directly analogous to calling a black person the n-word. Lots of people clearly now believe them. 

I appeared on TalkTV on March 29th to talk about the new Scottish law. One of the two studio guests, Matthew Stadlen, neatly illustrated the large gap between what commentators focusing on the letter of the law say, and how the law is likely to be used in practice. He chastised me for referring to transwoman India Willoughby as a man and using male pronouns for him. Willoughby, he said, was “legally a woman” and I could have no reasons for using those words other than “hate” and “transphobia”. 

So much to unpack here! I’ll start with UK law on who’s a woman and who’s a man, since Stadlen made much of it.

First off, Willoughby isn’t “legally a woman” – there’s no such thing as being “legally a woman” without mention of the legal purpose you’re referring to. If Willoughby has a gender-recognition certificate (he’s previously said both that he does and that he doesn’t), then he is legally deemed a woman for some specific purposes, such as pensions and marriage, and isn’t for some others, such as inheritance, parenthood and sex crimes. If he doesn’t have one, he’s legally a man for all purposes, not just some. 

When I was giving the interview I had forgotten Willoughby sometimes says he doesn’t have a GRC. If I’d remembered I’d have asked Stadlen – who claimed to think that gender self-ID went “too far” – whether, if Willoughby doesn’t have one, he is willing to agree that Willoughby is indeed a man, and whether he understands that my classification of Willoughby’s sex can’t possibly depend on whether Willoughby does or doesn’t, because how on earth am I supposed to know?

Second, being legally deemed female for some purposes is a matter that concerns a person’s relationship with the state: it’s about the actions of individuals only insofar as those individuals are “duty-bearers” under specific laws. If you’re a registrar, for example, and Willoughby does indeed have a GRC, then you’ll have to record him as a woman if he marries (and if he doesn’t have one, you’ll have to record him as a man). If he fathers a child, however, whether or not he has a GRC you must not record him as the mother; if he’s named on the child’s birth certificate, it can only be as the father. 

In other words, the Gender Recognition Act doesn’t grant men the right to insist that anyone else acting in a personal capacity has to pretend they are women or treat them as if they are.

But anyway, this is all a side issue. I’ve never met anyone who genuinely thinks that whether Willoughby is or isn’t a woman depends on whether or not he has a GRC. A more important point is that calling men men isn’t hateful or transphobic. “Man” isn’t a slur; it’s just the ordinary word for adult human males. It’s not in any way analogous to the n-word. I understand that it may be hurtful to a man who wishes he wasn’t a man to say that he is nevertheless one – but I don’t have a magic wand that can turn men into women, and nor does anyone else, even if they claim they do. 

Finally, and I hope I got this across clearly in the TalkTV interview: there is a reason why I feel morally compelled to say that Willoughby is a man that goes beyond my aversion for lying, namely that calling trans-identifying men men is often essential in order to protect other people’s human rights. 

I should point out that the host’s description of the new law in that TalkTV show is inaccurate and hyperbolic. But at this stage in the game, the details are beside the point. If Scottish police officers are as bigoted against women with so-called “gender-critical views” as Matthew Stadlen was in that interview, and as ignorant of the wider law regarding sex and gender, then women who insist on saying that trans-identifying men are men will be reported by transactivists en masse. And the police will treat those women as having at least potentially committed crimes.

At which point we come up against the Sensibles’ second irritating misconception: that if someone is reported but never charged, or the charges are eventually dropped, or the person is brought to court and found not guilty, then everything is fine. It’s not. 

As criminologists say about the penal code, “the process is the punishment.” Under this new law, if you’re reported the police can ask you to come in for a “voluntary” interview. Voluntary in name only, that is: if you refuse, you risk arrest. They can seize your phone and computer – and possibly all phones and computers in your household, nobody knows – to search for evidence that your supposed hatefulness is part of a pattern. They can hold onto your devices for weeks and months, leaving you floundering to manage your work and all the tasks of modern life, and in a state of fear regarding whether or not you will eventually be charged. 

A further illiberal aspect of the new law is that the police are supposed to record all incidents reported to them, even if they think those incidents don’t meet the threshold for investigation. The incident will be recorded against the complainant, not the alleged perpetrator – but if the perpetrator was named in the complaint, their name will be included in that record. They won’t be notified, however, even though their name will turn up in any comprehensive search of police records against their name. Such searches include those carried out at the request of employers who are screening applicants for sensitive jobs, such as in social care or teaching. Anyone who’s reported, even if never found guilty of anything, will most certainly have been punished. 

The result is sure to be a serious chilling effect, as explained very clearly in this comprehensive article in the Telegraph. It quotes women I know who live in Scotland and are pretty certain that they personally will be reported, but the quote that stood out for me was from a comedian who said that he simply didn’t have the appetite for even potential reports, and would be changing his routine as a result. 

Simon Evans, who performed at last year’s Edinburgh festival, said: “I chucked in a couple of lines – referring to Nicola Sturgeon as a perfectly nice chap and Humza Yousaf as ‘formerly Cat Stevens’. I think I’d now hesitate to do that material. 

“I don’t have the political nous and youthful energy to take the establishment on. I like to earn the money that comes from corporate functions. And the last thing you want is someone from Human Resources running you through a police check before they book you.”

The final sinister aspect of this law is that anything that can be read in Scotland counts as published in Scotland. That shouldn’t worry you if you’re outside the UK since your local police force won’t do Police Scotland’s bidding – but police forces elsewhere in the UK will. Add that to the fact that third-party reports are allowed, and it’s clear that the new law is a potent weapon for transactivists to wield against women anywhere in the UK.

I feel strongly that in the face of such illiberal laws, it’s best to fight on your own turf. We shouldn’t wait until a litigable case presents itself, because the woman in question may be doing a job she can’t afford to lose in a workplace that is unsympathetic. Her social circle and family may be unsupportive, antagonistic or vulnerable – not many women are willing to be arrested in front of their children, or to have those children asked about their mother’s supposedly hatefulness in school. She may not know the law or be able to afford representation, and the facts of her specific case may be less than ideal because she was speaking in the heat of the moment rather than choosing her words with an eye to defending them later, if necessary in court.

Fighting on our own turf means a woman with none of these vulnerabilities taking her time to think what she wants to say and what she is willing to repeat in any situation to anyone. Either nobody complains as a result – and to be sure of that, she will have to put in frequent “subject access requests” asking for any information held about her to both her home police force and to Police Scotland, if the two are not the same. 

If she finds nothing, that will help establish that the boundaries of acceptable speech are capacious, and to relieve the chilling effect. If, however, there have been complaints, whether investigated or simply recorded, we have our evidence that this law is indeed a serious infringement on belief and speech rights, as we have said all along.

So here goes. Here’s what I’m going to keep saying despite Scotland’s new law, and what I’m willing to defend if I’m reported for supposed “hate” or “transphobia”. 

1. Being a man or woman is entirely a matter of biology and not at all a matter of identity. The share of women who don’t have penises is 100 percent, not 99.9 percent, as Labour leader Keir Starmer has claimed. 
2. No man can be a woman, not even if he feels like he was supposed to be a woman, wears a dress, wig and makeup, changes his name, demands to be referred to as “she” and “her”, gets a gender-recognition certificate or gets castrated. 
3. No men, and that includes “trans women”, should be allowed into women’s spaces or sports. No man, and that includes “trans women”, it eligible for jobs reserved for women under “genuine occupational requirements”. “Trans-inclusive” spaces are mixed-sex. 
4. Calling “trans women” men, and using male pronouns for them, isn’t “misgendering” – it’s correctly sexing. It isn’t hateful either; it’s ordinary speech. Moreover, it’s actually essential in order to protect women’s rights to safety, dignity and privacy. 
5. Giving children puberty blockers or cross-sex hormones is a human-rights abuse. Telling children they can change sex or that their feelings define their identities encourages mental unwellness. 
6. Parents shouldn’t be able to consent to their children receiving puberty-blockers or cross-sex hormones, any more than they can consent to a daughter undergoing female genital mutilation. Like FGM, “gender-affirming care” is a harmful cultural practice. 
7. The rise in trans identification among teenage girls is the result of a social contagion spread by indoctrination in schools and on social media. 
8. Sexuality is a matter of objective sex, not subjective “gender identity”. A “trans woman” who is sexually interested in women is a straight (or possibly bisexual) man, not a lesbian. No lesbians have penises (and even if a man has his penis removed, he still cannot be a lesbian). 
9. “Trans women” who enter female-only spaces are abusing women. Most women they undress in front of, or observe in a state of undress, will regard themselves as the victims of indecent exposure or voyeurism – the two most common sex crimes, overwhelmingly committed by men against women and girls. 
10. A “trans woman” who carries out an intimate search or medical procedure under the false pretence that he is a woman should be prosecuted for sexual assault. 

Stadlen – the studio guest in that TalkTV interview – took particular exception to my naming a specific transwoman rather than speaking in generalities. I feel no compunction in calling out India Willoughby, not least because he has no compunction in singling out individual women in deeply unpleasant ways, including me, my colleague Maya Forstater and his ultimate hate figure, JK Rowling. The way he talks is typical of a misogynistic, rage-filled man – we’re ugly, fat, frumpy, etc. More importantly, he claims that he really and truly is a woman in every respect, and that he therefore has the right to use women’s spaces. 

I’m not suggesting that “misgendering” is some sort of punishment for trans-identifying people I don’t like. I’m saying that when people use their trans identification to trample on other people’s rights, or to argue against other people’s rights, it’s not merely my right to refer to them as their actual sex, it’s my duty. I understand that they may experience this as hurtful, even hateful, and I don’t relish that. I prefer, all else being equal, not to hurt other people’s feelings. But the solution is that they stop infringing on other people’s rights, not that I roll over and accept it. Unavoidable hurt caused as a byproduct of defending human rights is not hateful; it’s morally important.

And so, here goes. I’m willing to defend these particular claims about particular people, too.

Among the men who aren’t women is India Willoughby, whether or not he has a gender-recognition certificate. Willoughby isn’t female – humans can’t change sex – and doesn’t have a vagina or indeed a cervix, as he has claimed: no man does. If he’s undergone genital surgery – and I don’t care whether or not he has; getting castrated doesn’t turn a man into a woman – he will have what gender doctors call a “neovagina”. It’s not a vagina, and the surgeons who create neovaginas out of male genitalia don’t even try to create a simulacrum of a cervix – how could they, when the cervix is the neck of the uterus, an organ no man has? It’s not my fault if Willoughby’s surgeon wasn’t clear about this, or if Willoughby misunderstood.

Among the men who should not use women’s spaces is Robin Moira White, a trans-identified barrister who says that he uses women’s toilets rather than men’s, and has specified that he does so when visiting the Palace of Westminster. He shouldn’t, because he’s not a woman. White has said he doesn’t have a GRC, but even if that has changed, he is still a man, and immediately recognisable as such. The piece of paper would make no difference to either material reality or to the perceptions of the women he’s intruding upon. 

White tweeted about me after the TalkTV interview – I’m blocked, so I only know this because a screengrab was shared with me. I don’t know what he means by “yuk, yuk, yuk”, but he seems to think that my willingness to say that men are men illustrates why trans people need workplace protections against gender-critical people. He’s got it the wrong way round: his insistence that trans-identifying men are entitled to use women-only spaces illustrates why women need to be able to use the word “man” for all men, including the trans-identifying ones.

Among the parents who should not have been able to consent to “gender affirming care” on behalf of their children is Susie Green, the former CEO of trans lobbying charity Mermaids. Green arranged for her son Jackie to be prescribed puberty-blockers and then oestrogen from American doctor Norman Spack while he was still a minor, at a point when the NHS would not prescribe these drugs to someone so young. Green famously took Jackie to Thailand to have his genitals removed on his 16th birthday. This surgery would not have been permitted in the UK under the age of 18, and isn’t permissible under age 18 in Thailand now. 

Among the “transwomen” who aren’t lesbians is Freda Wallace, the cross-dressing man who debated with me, Peter Tatchell and Mark Glendening at the Institute of Economic Affairs in London some months ago. Freda Wallace has said he sleeps with women who describe themselves as lesbians. But unless he’s a temporary aberration in their sex lives, they’re not lesbians, since lesbians are exclusively attracted to women, and he’s not a woman. And he certainly isn’t a lesbian, whether or not he thinks he is. He can’t be one, no matter whom he sleeps with, because he’s a man.

Among the men who have taken jobs that were supposedly reserved for women is Mridul Wadhwa. Wadhwa is currently the chief executive of Edinburgh Rape Crisis Centre (ERCC) – a job that was advertised as accepting applicants only from women. This sort of restriction is lawful, as women who have experienced male sexual violence often (indeed usually) experience retraumatisation in such spaces if any men are present. Wadhwa should not have applied for the job; given that he did apply, his application should have been rejected out of hand. (ERCC is currently defending itself at an employment tribunal; the plaintiff is a former employee who alleges that she was discriminated against for trying to find tactful, discreet ways to reassure potential clients who were concerned that their counsellor might not be female.)

Among the men who want to compete in women’s sports is Emily Bridges. In the junior male category he set national records in Wales. After he started identifying as a woman in 2020, he sought entry to the women’s category. Last year, when British Cycling tightened its eligibility criteria, he claimed that the new policy was “furthering a genocide” and supported by “literal Nazis, conspiracy theorists and those who want our eradication”. Regardless of the hyperbole, Bridges is not a woman: he is a man. And no matter how much he resents his exclusion from the female category, it’s obviously right and justified. Genuine “trans inclusion” would mean welcoming and supporting transwomen athletes like him in competition with other men.

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When I was a child, shopkeepers used to have signs behind the till saying “Please do not ask for credit, because a refusal often offends.” I feel like that now. If a man doesn’t use his claim of a trans identity to justify intrusions on women’s rights – if he stays out of our spaces, services and sports, and doesn’t tell us we’re not allowed to refer to him as a man – then he’s not “asking for credit” and I don’t have to offend him by refusing. If he does those things, however, then I won’t hesitate to say he’s a man, even if he tells me that offends him. If he doesn’t want to be offended by refusal, he shouldn’t have intruded on women’s rights in the first place.