Scotland's Hate Crime Act does not make every transphobic remark illegal, and nor should it – Vic Valentine, Scottish Trans

Complaining to the police about offensive views that people are lawfully allowed to hold is no solution to the rise in prejudice, writes Vic Valentine, manager of Scottish Trans

Tomorrow, the Hate Crime and Public Order (Scotland) Act, passed by the Scottish Parliament three years ago, comes into effect. My organisation supported this legislation because we know first hand the serious impact that hate crime can have on LGBTI people.

The majority of the new Act is a restatement of existing law. For example, where someone is the victim of a crime, the resulting charge can have an ‘aggravator’ attached to it, recording that the incident was motivated by prejudice. If, for example, someone broke into a house, trashed it, and sprayed homophobic graffiti on the door, that would be breaking and entering, and vandalism, but recorded with a sexual orientation prejudice aggravator. If someone was attacked in the street, whilst the perpetrator shouted transphobic comments, that would be assault with a transgender identity aggravator.

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There are good reasons for recording crimes as motivated by prejudice. The most important is that it recognises the particular impact that such an offence has on the victim and their wider community. Being the victim of a crime is, of course, very upsetting and distressing for absolutely anybody.

But when you are part of a community that is targeted specifically because of who you are, that can have a particularly big impact on how safe you feel going about your daily life. If you have had negative experiences because of something fundamental about yourself that you cannot change, it is understandable that this might impact you in a way that is damaging to your mental health. You can end up feeling unsafe all the time.

Changing hearts and minds

Another reason for attaching a prejudice aggravator to a crime is that if this motive is proven, the court can take it into account in sentencing. And the aggravator is noted in the record of the crime, which helps get a picture of how prevalent hate crime is. If hate crime towards a particular group of people is increasing, that tells us something important, and worrying. It means that we can identify a problem, and seek to find solutions to it – though these solutions often rely on long-term work within communities to improve cohesion, interconnectedness, and to change hearts and minds.

These aggravators aren’t new – the only change to this part of the new Act is that age has been added as a protected characteristic, and where previously intersex people and those born with variations of biological sex characteristics were wrongly included within ‘transgender identity’, they will now be named separately as a protected group.

The main thing the new Act changes is that the long-standing offence of stirring up racial hatred is now extended – although with a higher threshold for an offence to be committed – to hatred on grounds of age, disability, religion, sexual orientation, transgender identity, or variations in sex characteristics.

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This offence applies where someone behaves in a way that a reasonable person would consider to be threatening or abusive, and they deliberately intend their behaviour to stir up hatred. This means that the perpetrator deliberately seeks to cause others to feel hatred towards the targeted group or, in some cases, encourages them to act on this hatred.

A high threshold

The law says it is not an offence if the behaviour was, in the particular circumstances of the case, reasonable. It also says that, when deciding whether the behaviour was reasonable, a court must bear in mind the right to freedom of expression, including that the right applies to expressions that offend, shock or disturb.

There has been a huge amount of discussion in the last week or so about whether this law will criminalise many of the things that are said publicly about trans people. It won’t. There is a big gap, as there absolutely should be, between things people say that we find upsetting, offensive – transphobic, even – and things that are criminal. The law should only interfere with people’s freedom of speech and expression with really good reason – and I think that the high threshold for this offence gets that right.

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I hope that we can move forward from the current situation that we find ourselves in, towards a place where I see much less misunderstanding, prejudice, and contempt for trans people. I also hope that trans people and our friends, families and allies can continue to look after each other when we do face upsetting, difficult and prejudiced views.

Speaking out against prejudice

Do I disagree, profoundly, with many of the things that are said about and to trans people on a daily basis? Of course. Do I think that they cause real upset and harm to trans people? I know that they do – I see it every day from working with and talking to trans people across Scotland. But complaining to the police about offensive views that people are lawfully allowed to hold and express is no solution to the rise in prejudice and hateful sentiment, nor is it the right thing to do.

It could also in some cases give people who are being deliberately offensive and unpleasant the opportunity to portray themselves as the victims. The solutions are instead quite different. They include speaking out against prejudice, and in favour of a generous and supportive society, and modelling that in our own behaviour.

So, what will be different tomorrow in Scotland? Not much. The new law should deal, rightly, with those crimes motivated by prejudice and that seek to stir up hatred in others, and that are serious enough to warrant a criminal justice response. But I don’t expect this law to quieten down the noise around trans people that can sometimes feel deafening if you are a trans person facing it every day. Finding our way to more peace on this issue will need to happen in our communities, workplaces, and families – not in police stations or courtrooms.

Vic Valentine is manager of Scottish Trans