Kathleen Stock

Original written text of talk at Make More Noise: Hate Crime event, Manchester, Sat 8th 2020 (in spoken version, I missed a few bits out)

Content warning: I am talking about hate speech and will occasionally be mentioning (but not using) some examples targeted at particular social groups. This is necessary to make an instructive contrast with the case I mainly want to discuss.

As we heard from Sarah Phillimore, a judicial review of Humberside Police and the College of Policing took place late last year, after ex-police officer Harry Miller retweeted a poem which addressed a hypothetical trans woman as a “man” with “male privilege” — those are the words the poem used. This (re)tweet was recorded as a “hate incident” by local police, and Harry Miller initiated a judicial review about this process, to which I submitted a witness statement. When the outcome of the review is announced next Friday, we will learn whether this process was lawful.

As those of you followed the review know, during it, there was a lot of discussion of the Crown Prosecution Service’s categorisation of “hate incident”. A hate incident is not in itself classed as an offence but is the subjective recording of a perceived offence by someone: either someone who thinks they are a victim, or a bystander. That is — a hate incident is defined by the CPS in terms of people’s perceptions, not neutral evidence. If someone perceives someone else as having committed hate speech or some other hate crime, and reports it to the police, it has to be flagged in the system as such. Moreover, as we now know, the record is then left there, even if no evidence is later found to establish any kind of crime[1]. As we also know, though ostensibly an internal record, having a “hate incident” recorded against one may well show up in enhanced Disclosure and Barring Service checks, which can potentially make a difference to someone’s later employment.

This has seemed outrageously unfair to many. I think what’s obvious straight away is that the CPS should never have called this category of incident a ‘hate’ incident, as the name is clearly prejudicial and easily misunderstood to those unfamiliar with its role. But I also think it is worth reminding ourselves that this process came from the Macpherson report — that is the report of the Stephen Lawrence inquiry, and in that context, it seems to me to have had a reasonable purpose, which I’ll now outline.

If you read Brian Cathcart’s book about the Stephen Lawrence murder and terrible aftermath, you find descriptions of what was going on in Stephen Lawrence’s district of Eltham and surrounding areas of Greenwich in 1993 — areas which were 95% white — around the time of the murder. We learn that:

· Hate speech was reliably linked to other hate crimes. Repeated incidents of ethnic slurs and insults would quickly and reliably escalate to things like damage to property, violence, and murder.

· The black community was damaged and alienated by their many experiences of demonstrable institutional racism in the police.

· They feared reporting racist incidents, because they worried — with good reason — that the reports would be dismissed. The police force did not take seriously the reporting of racist incidents. Sometimes reports would be dismissed, or else separate serious incidents would be recorded as “one incident”

I’m going to read out a bit of the Cathcart book because I think it’s really important that we remember the disturbing and unacceptable situation which the CPS hate incident process was originally designed to address (my italics):

“To take an example..[an independent anti-racism group] recorded what happened to one Asian woman [in Greenwich] over a period of three weeks: she was verbally abused and then punched in the arm; a boy deliberately rode his bicycle into her; she was verbally abused and threatened; another boy rode his bicycle into her; she was verbally abused (“Get back you black bitch”); four youths blocked her way as she tried to leave home by car and then abused and threatened her (“Paki bitch”). These six events were recorded as a single incident” (Cathcart, p.22).

Additionally, in Greenwich, Cathcart reports that there was a culture of fear and intimidation of witnesses or other people with relevant evidence, so that they would not report evidence, even if there was some (this is notably true in the case of the Stephen Lawrence murder, where the father of some of the defendants was a notorious drug dealer.)

So: that context, I think you can understand the good intentions behind the Macpherson recommendations regarding the reporting of perceived racist incidents. In a context where racist speech and racist acts are not taken seriously enough, and are demonstrably and repeatedly linked to violence and criminality, it makes sense that police have to record perceived racist speech and other incidents on their system — as a means of taking victim’s perceptions more seriously, and being seen to take them seriously, so that community trust can start to be rebuilt.

And it also makes sense to leave perceived racist incidents recorded on the internal system, even after no evidence was found, because in a racist place as Greenwich was — where there is a culture of silence around witnesses — absence of evidence does not mean that criminal racist abuse has not occurred, and won’t occur again.

However: as far as I can see, things are different when it comes to the Miller case. To see what I mean we need to look briefly at the law again.

When it comes to actual crimes (not just the perception of them), the CPS puts a lot of different offences, covered by different laws, under the category of “hate crime”; and these include those verbal offences, which aren’t named as hate speech as such, but are covered under the Public Order Act 1986 and later amendments.

In these laws, for these crimes, there is a focus on seriously hostile psychological intentions or motives of the speaker. For criminal speech, the speaker has to intend to cause (one assumes, serious) harassment, alarm, or distress, or intend to cause a belief in a hearer that violence is to follow, or intend to be threatening, or at least be aware that one’s words reasonably seem threatening to hearers[2].

We also see this focus on intention also when we look at how the CPS defines racist hate incidents, which as I’ve just said are supposed to be a way of recording perceived hate crimes (my italics):

· “Any incident/crime which is perceived by the victim or any other person to be motivated by hostility or prejudice based on a person’s race or perceived race”

· “Any incident/criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender”.

And so on.

Now, as you know Harry Miller retweeted a poem addressed to a hypothetical trans woman, represented as “a stupid man” with “male privilege”. I’m assuming that the fact that Harry Miller was addressing a hypothetical trans woman as “man” and “male” was a central feature of the police’s perception that the poem might be a hate crime. So what I’m interested in is whether this aspect in particular of Harry Miller’s words could reasonably be perceived by the police or anyone else as psychologically motivated by hatred, hostility, threat, etc.

In trying to work out whether calling trans women “men” or “male” should count as either an actual hate crime, or even a reasonably “perceived” hate crime that the police should be involved with, I think we need to keep the following clearly in our minds:

· The question is NOT whether the poem, or any statement like it, as unwanted or hard to hear, or offended some people. That’s not criminal. Offence or hurt feelings also vary massively from person to person.

· The question is NOT whether the poem was fairly obviously rude or unkind. I think it is rude and unkind, but that doesn’t make it a police matter nor should it.

· The question is NOT whether it is TRUE that trans women are “men” with “male privilege”. We can easily get distracted arguing about this, but it’s not the right question here, because it is not hateful to be wrong on some factual question. So EVEN IF that turns out to be wrong, that establishes nothing about potential criminality.

· The question IS whether saying that trans women are “men” or “male” is reasonably thought of as showing seriously hostile psychological intentions or motives: to harass, distress, alarm, threaten, and so on.

This is really important, in a way that goes way beyond Miller’s case, because we are told all the time that “rejecting someone’s gender identity” or “misgendering” is evidence of hate — that is, talking of their sex in a way which conflicts with their gender identity.

So for instance, Stonewall’s definition of transphobia is:

“The fear or dislike of someone based on the fact they are trans, including denying their gender identity or refusing to accept it.”

So: refusing to think of a trans woman as a woman, for instance, is automatically “included” as being based on “fear and dislike” and so “transphobic”.

Or see the very first sentence of Foreword to the CPS new publication “LGBT Bullying and Hate Crime Schools Guidance”, which says”

“Homophobic and transphobic bullying and hate crime attack people’s right to feel safe and confident about their sexual orientation and their gender identity”

That is — snuck in there alongside the entirely appropriate sentiment that people should feel “safe” and “confident” about their sexual orientation (which is, after all, not just an identity, but a fact about oneself) — the CPS seem to be quite casually construing disagreement with the idea of someone’s gender identity as “bullying and hate crime”.

Or, for another example, see various UK University trans policies. These policies effectively set out speech and behaviour codes for faculty and students, on pain of counting as hostile and subject to official reprimand. They say things like (direct quotes):

· (University of Leeds) “Think of people as being the gender that they self-identify as.”

· (University of Nottingham) “Think of the person as being the gender that they want you to think of them as.”

· (University of Leeds) “A person should be addressed and referred to using the pronouns which make them feel comfortable. This could be he, she, they, per, hir or other pronouns.”

· (University of Roehampton) “Examples of bullying and harassment may include….Misgendering — referring to an individual’s incorrect gender identity” and “Denial of an individual’s gender identity”

· (University of Roehampton) “It is acknowledged that people make mistakes, however, people who are consistent and are found to be malicious will be subject to disciplinary action.”

Note that in last point, at least on one reading, only two options seem to be given: a first mistake (permissible) or being “consistent” in which case you are assumed to be malicious. So if you are e.g. consistent in your belief that trans women are not women, you are assumed to be automatically malicious.

Roehampton’s policy continues: “If you make a mistake with pronouns, whether the person is present or not, acknowledge the error, apologise genuinely, and move on.” (It also says, incidentally: “Do not simply assume someone’s pronoun based on your assessment of their outward appearance”.)

Or let’s go back to Stonewall, and a glossy, widely circulated 2017 report of theirs, “LGBT in Britain: Hate Crime and Discrimination”. Alongside unacceptable incidents of physical aggression, spitting, and use of genuine hate speech, we also find these much more ambiguous sounding events included as examples of hate crimes:

Juliet, 37 (London) writes “A female security guard refused to search me when I was waiting in line to get into an event. She made a fool of me in front of the entire line. She said I wasn’t a female and made me stand in the men’s line.”

Ryley, 20 (London): “I was asked if I was a boy or girl in a clothing shop as I wanted to try on male clothes. The woman said ‘you know they’re boy’s clothes. Are you a girl or boy?’”

It seems to me that these are both cases where it might be appropriate to talk about a person’s sex. e.g. a female guard might not want to search a male person; and a shop assistant might reasonably want to direct people to the changing room for their sex (for reasons to do with why we have single-sex changing rooms in first place). But either way, a speaker’s mere reference to sex and not gender identity, even if strongly unwanted, is clearly not automatically hateful in these contexts.

Generally speaking: following Stonewall’s lead, in public policies across the UK, as in Humberside Police’s case, we see the assumption that consistent claims that trans women are “men”, or “male” (as opposed to one off “mistakes”) must be so hostile as to count best as bullying, or harassment or at worst as hate crime.

But to my mind, this is an exceptionally risky assumption, liable to result in injustices (not to mention the suppression of speech about really important matters to do with biological sex).

To remind you — to count as hate speech, it’s not enough to be wrong. It’s not enough just to be rude or offend. You have to have manifestly seriously hostile intentions.

Arguably no sentence, on its own, removed from context, automatically implies seriously hostile intentions. Surrounding context is always relevant. However: the best candidates we have are words whose main function is to insult people, based on their membership of some social group — that is, slurs and pejoratives designed to target one section of society but not others. Words which target ethnic groups, like the N-word or the P-word; words that target females specifically, like “bitch”, “slut”, or “whore”; words that target sexual orientation, such as “faggot” etc. Even here, these words can occasionally get used playfully and non-contemptuously in different contexts — men or women can be affectionally called “bitch”; people belonging to social groups can use slurs ironically and non-hatefully to refer to themselves — but most of the time, and particularly when used by someone from a different group, slurs and pejorative words function to convey hostility and contempt. That is their main linguistic role.

So here’s the crucial contrast: the words “man” and “male” are not slurs or pejoratives. They do not typically function in sentences to convey hostility or contempt. Calling someone a man, for many speakers, is intended to be a completely factual description of their biology. Calling a trans woman a “man” or “male” is, for many speakers, intended to be a completely factual description of their biology (remember again — we aren’t arguing about whether this is actually a fact; we are talking about linguistic intentions). In short, as I argued in my witness statement to the judicial review, we cannot automatically assume intentional hostility from any claim that a trans woman is a man or male.

To underline this point, consider that up until about five years ago — and I’m sorry if this is hard for anyone to hear — nearly everyone in the UK believed that trans women were, literally, men. They hadn’t yet heard the post-modern theory that what makes you a woman, or even female, is a feeling of being a woman. They hadn’t yet read anyone who had read Judith Butler. They hadn’t yet seen a Stonewall T-shirt which says “Trans women are women. Get over it.” If they agreed with statements like “trans women are women because they feel like women” or “trans women are female because they feel like females” they were pretending this was true, because they believe it’s therapeutically helpful for trans women to go along with this; and lots of people were happy to go along with this, but they didn’t believe it. Nowadays, thanks to organisations like Gendered Intelligence and Stonewall, and the amazing effect they’ve had on public policies, quite a lot of people do believe it’s literally true that trans women are women because they feel like women. But still, a lot of people still don’t believe this. Millions of people, in fact. Even if these latter people say “yes, trans women are women”, you can’t reliably infer that they believe it — as I say, a lot of them are pretending because they think that’s a therapeutically helpful thing to do for trans women (or maybe these days, they’re just scared not to!). And it makes no sense, in this context, to treat denials of this claim — to treat the claim that “trans women are actually men” as intentionally hateful. Not-being-nice, and occasionally stating what you believe is true in certain contexts rather than pretending, is not automatically being-hateful.

I am not saying that it is always easy to work out when the verbal expression of a belief is hostile or not. There are a lot of racist beliefs that people think are factual or at least quasi-factual. There are a lot of sexist beliefs that people think are factual or at least quasi-factual. But on a sliding scale of “easy to identify as intended to be factual” at one end, and “easy to identify as intentionally seriously hostile” I would say that “so-and-so is a man, or are men” is often much, much closer to the factual than to the hostile end.

One way of working out whether this is right, is to see how the belief or statement in question is linked to a person’s wider pattern of attitudes. People with racist beliefs tend to have lots of such beliefs, all linked together, and these tend to involve beliefs and statements that people of other ethnicities should be discriminated against and have fewer rights. They tend to involve dehumanizing thoughts about people. But in contrast, many of those who believe and say that trans women are men need not, and often do not have, any linked pattern of dehumanizing thoughts or discriminatory beliefs about trans women, or trans people. You can think that a trans woman is a man, and also think that they should have all standard legal and social protections, and even that they should have special protections because they are a specially vulnerable group. You can even think that trans women are men, and be a happy and non-self-hating trans woman yourself .

Now, another thing I am definitely not saying, is that the belief or verbal statement that “trans women are men” is never linked to a wider pattern of discriminatory and dehumanising thoughts and beliefs about trans people. It definitely is, for some people. One thing I think critics of trans ideology are not good at addressing, is the genuinely dehumanizing and discriminatory talk about trans women, as a group, which I see regularly among some, and which I’m happy to mention here and to say publicly that I reject.

But my point is — to say “trans women are men” or “male” is not yet to establish the hostile case either way. And so it can’t safely be taken, on its own, as either actual or potential criminalizable hate speech. It can’t safely be taken as actual or potential bullying either, independently of linking to a wider discriminatory pattern of attitudes on the part of the speaker.

My final point is this. Recently it was reported in the Independent (my italics) that:

“hate crimes have risen by 10 per cent in a year across England and Wales to a new record high, amid a surge in attacks on transgender people…Of the total of almost 103,400 hate crimes recorded by police in 2018–19, three-quarters were racially motivated — a category that includes xenophobia. But the largest increase was seen in transgender hate crimes, which rocketed by 37 per cent to 2,333 incidents.”[3]

In a separate article, it was reported that 1 in 10 of these generally is prosecuted[4].

The first thing to say about this is that I presume the reporter means “hate incidents” not “hate crimes” — as in perceived hate crimes — so here again we see the problem with CPS terminology misleadingly and confusingly describing perceptions of hate, as “hate incidents”.

A second thing to say is that, if saying that “trans women is men” is being perceived as a hate crime by lots of people, as it clearly is, with the encouragement of major LGBT organisations and public institutions, then it is not surprising at all that there is a “surge” in what they are calling “transgender hate crimes”! Whether, under these circumstances, we should take this surge seriously as evidence of an urgent social problem is another matter.

The third and final thing I want to say here, is this. When I think about how the police’s hate incident process was originally and, I think, honourably introduced to try to deal with the sort of pernicious, violent, rampant, genuinely hostile and overt racism displayed in Greenwich in 1993, and elsewhere; and when I think how this process has become hijacked, manipulated, and debased, so that precious police resources which could have been used to tackle genuine racists, are being diverted into pursuing people for stating what they think of as purely factual beliefs about human biology; when I think of all this, as well as about the cost of it to the health of the public conversation about biological sex, I get very angry indeed. And I think you should get angry too.

— — — — — — — — — — —

[1] The wording is: “It is not CPS policy to remove a flag in the absence of sufficient evidence to support a sentence uplift.”

[2] For instance: (Section 4):

A person is guilty of an offence if he — uses towards another person threatening, abusive or insulting words or behaviour, ….with intent to cause that person to believe that immediate unlawful violence will be used against him ….

Or (Section 4A)

A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he —

uses threatening, abusive or insulting words or behaviour, or disorderly behaviour…..

thereby causing that or another person harassment, alarm or distress.

[3] https://www.independent.co.uk/news/uk/crime/hate-crimes-england-wales-lgbt-rise-anti-gay-transgender-attacks-a9156291.html

[4] https://www.independent.co.uk/news/uk/crime/hate-crime-attacks-jews-muslims-gay-prosecutions-police-falling-a9257256.html