Neale Hanvey: The Hate Crime Act seeks to silence women and LGB people

I make no apology for what I am about to write because it may be the last time I am able to do so. In a few short weeks, the Scottish Government’s Hate Crime and Public Order (Scotland) Act 2021 will come into effect and my world and that of women up and down Scotland will enter a very dark place.

Our contribution to political discourse will not only be ignored by government, it may cease to be lawful. Discussing the fundamental characteristic that defines us, our sex, is likely to be considered an aggravated hate crime.

I still struggle to believe this illiberal control on freedom of thought and expression is happening in Scotland, the country of the Enlightenment, the country that only 10 years ago was gripped by an independence campaign of hope, vision and ambition.

Growing up in the industrial macho culture of Fife was no picnic for a young gay guy like me but, despite the challenges of Aids and Section 28, I was able to forge a happy work and home life while being able to demonstrate in the workplace and in public for equality before the law.

It was also an extremely tough environment for many women and there was tremendous solidarity between the women’s movement and gay rights movement as we worked together to effect legal protection in statute.

Back then, many people had to conceal their sexuality at work lest they were sacked, so finding your crowd behind the blacked-out windows of a gay bar was a release and somewhere you could luxuriate in just being yourself among trusted friends. Life in the 1980s was by no means perfect but I remember those days of solidarity and shared endeavour fondly despite the tragic losses to the ravages of Aids.

Under this new legislation, introduced to parliament by the current First Minister when he was justice secretary, that social world and activism of the 1980s is likely to be considered criminal.

The legislation’s exclusion of “sex” and “beliefs” as protected characteristics means women do not exist as a sex class for the purposes of the act. This also casts doubt on how anyone can lawfully exercise their now-established Equality Act protections for gender-critical beliefs without that being declared a hate crime.

And although the act includes sexual orientation to be a protected characteristic, it is silent on the definition of sex, so the same applies to lesbians and gay men who are by definition homosexual and attracted exclusively to same-sex partners.

Subsequently, the disgusting and frequently violent misogynistic abuse meted out against Joanna Cherry MP, Joan McAlpine, Johann Lamont and brave female detransitioners from cry-bully activists is not captured by this definition as a hate crime. They are all fair game in this First Minister’s Scotland.

And this matters because public bodies such as the Scottish Government are required to comply with the public-sector equality duty contained in the Equality Act 2010.

How this dog’s breakfast of an act ever came into being is bewildering. Whether by intent or effect, this is bad law that purposefully discriminates by omission and I can’t comprehend how it survived a basic equality impact assessment.

No clearer can that disparity be seen than through the lens of recent events where a woman, physically assaulted in broad daylight found herself denied justice by Police Scotland, using the secret guidelines of a Lord Advocate who is also a Cabinet member. Meanwhile, well-connected others are protected from words they use casually. And there’s no outrage or challenge when contributors to this paper or SNP MPs hurl homophobic slurs in my direction.

Those voices, so imbued in arrogance and self-importance, betray their ignorance of moral philosophy, ethical theory and the need for precise language in law. One saving grace is that the public is completely capable of differentiating between ordinary LGB and T people who just want to get on with their lives and the malign march of the attention-seeking queer theory adherents.

From the high of equal marriage delivered by Alex Salmond’s SNP to today, I can only conclude that for all that was wrong in the 1980s for women and LGB people, none of that comes close to the oppressive threat this law presents now.

For all her faults even Thatcher didn’t deny us our voice, our right to define who we were, to speak freely in the privacy of our own homes, or to campaign on the streets to secure our equality. Section 28 was a walk in the park in comparison to Yousaf’s authoritarian silencing of women and LGB people. You can’t protect what you fail to define, and you can’t argue a defence that doesn’t exist in law.

All of this and the potential for state intrusion into fundamental freedoms and human rights should deeply worry everyone in Scotland.

In my reading this act is in conflict with, but not limited to, Articles 1, 6, 8, 9, 10, 14 and 17 of the European Convention on Human Rights (ECHR) to which the UK State is a signatory and where in Scotland, civil and political rights are protected by the Human Rights Act 1998 and the related provisions that underpin the Scotland Act 1998.

No public body is outside the rules when it comes to the Equality Act, and the Scottish Government must be legally challenged in this regard.

I fully expect to be accused and arrested under this law. So far, I’ve had repeated vexatious actions against my office; I’ve suffered murderous threats as the trans rights activists cheer on.

I’ve been dragged through the media for highlighting gender reform conflicts with women’s rights and child safeguarding and I am abused regularly on social media by those who claim to be on the right side of history. Newsflash – they’re not.

The bar for prosecution is extremely low. No corroboration is required and the definition of “harassment” is ill-described and includes a wholly subjective test of “causing the person alarm or distress”. Such nebulous scope invites vexatious and malicious complaints, prosecutions, convictions and potential incarceration.

Homosexuality was not decriminalised in Scotland until 1981. This bill re-introduces this harm in its effect as it seeks to criminalise the act of defining who and what women and same-sex-attracted people are and in so doing erases the rights and protections we fought so long to establish. It must be repealed, but until then all we have is courage.

To quote Alexandre Dumas: “Life is a storm, my young friend. You will bask in the sunlight one moment, be shattered on the rocks the next.

“What makes you a man is what you do when that storm comes. You must look into that storm and shout as you did in Rome. Do your worst, for I will do mine! Then the fates will know you as we know you.”

(This was first published in The National on the 2nd of October)