There is a line to be drawn between violence, intimidation and harassment on one side, and the criticism of ideas on the other
The Law Commission report on hate crime, published on Monday, included a welcome relief for some of us involved in the battle of ideas over sex and gender. The Commission held that a blanket restriction on the expression of gender-critical views would likely be in breach of Articles 9 and 10 of the European Convention on Human Rights.
Gender-critical views are not hateful. They challenge a new ideology which espouses the idea that we all have an innate and immutable gender “identity” that alone defines us as men, women, or perhaps something else. This ideology then relegates sex to a characteristic that is somehow “assigned at birth”, and sometimes incorrectly in the case of transgender people.
I am myself transgender, but I am also a science teacher. My view is clear: sex was not assigned to us; sex created us, and reproductive biology distinguishes female from male in our species just like any other. I am also keen to learn more about my personal condition — psychological distress so severe that I was prescribed cross sex hormones and referred for gender reassignment surgery — and whether that treatment was necessary.
Others, of course, disagree with me. That is normal in a democratic society. But then they go further: they make sweeping statements that condemn my ideas and, by implication, myself and others making them.
In their submission to the Law Commission, GIRES – the Gender Identity Research and Education Society – said: “We think it would be harmful to afford legal protection to people who engage in… the discussion or criticism of gender reassignment; treatment for gender dysphoria; provision of and access to single-sex facilities and activities because this criticism effectively vilifies and dehumanises transgender people and encourages the public to do the same.”
I know that is not true. I am certainly not vilifying and dehumanising myself. And it seems the Law Commission agreed with me. Their report stated: “We do not agree with GIRES … Indeed, we think that characterising it as GIRES does demonstrates the risk that without explicit protection, such discourse — which has been recognised as protected speech — risks being perceived, reported, and potentially investigated as hate speech.”
Being transgender does not guarantee immunity from the attention of these activists. The report cited the Yardley case, where Miranda Yardley, who is trans, was accused of harassing trans rights campaigner Helen Islan, who is not trans. The judge stated that there was no evidence of harassment and the case was one that the Crown Prosecution Service “should never have brought”.
Hate crime legislation should protect individuals from hate. I do value the existing law that considers my “transgender identity” to be an aggravating factor should I suffer hate crime. But we must draw a line between violence, intimidation and harassment on one side, and the criticism of ideas on the other. Ideas need to be challenged in order to test them.
While the current debate in society is sometimes framed as a dispute between women defending their sex-based rights and transgender people defending their right to exist, the reality is somewhat different. Nobody is seriously challenging my right to exist as a transgender person. Perhaps they might be exasperated with the demands made by transgender activists, but that is a totally different issue.
The real debate is between those who maintain that men and women are distinguished by sex, and those who think that gender identity is the key. Both women and trans people take positions on both sides. In a democratic society where the public is consulted on potential changes to legislation, it would be very dangerous for the ideas of one side to be vulnerable to possible action under hate crime legislation.
The Government must now accept this recommendation to protect gender critical views or it may be a matter of time before a vexatious complainant convinces an enthusiastic police force to prosecute ideas. That may be the way things are done in totalitarian states, but it should not be the practice in a liberal democracy such as ours.
Dr Debbie Hayton is a teacher and writer
* This article was first published by The Telegraph on 7 December 2021: Why the Government must exempt gender-critical views from hate crime laws.