Defining women

‘The wording of anti-trans hate-crime guidance is so vague, and so reliant on subjective interpretation, that it could be open to misuse by politically-motivated actors’

Louise Perry

Criminals are on the march in Oxford. The details are unclear because the content of the supposedly offensive stickers are not “suitable for sharing”, according to Thames Valley Police. Some of them are known to feature a now-controversial dictionary entry: “Woman. Noun. Adult human female.” Also featured on billboards and T-shirts produced by gender-critical feminists, this common-sense statement is a transphobic dog whistle to the ever-alert trans activists.

They have launched a counter-campaign with stickers of their own. Halloween-themed messages included “Pumpkins against bigots” and “Ghosts for trans”, as well as cartoon penises in the colours of the trans flag. That might seem like a classic university spat, with all the silliness and over-seriousness that marks student politics, and lacking only the pen of a satirist such as David Lodge. But satire is long dead. Thames Valley Police confirmed to me by email that they are investigating the allegedly transphobic stickers as a public order offence.

The episode is only the latest in a series of confrontations between police and gender-critical activists over the last 12 months. In October 2018, the writer and comedian Graham Linehan, co-creator of TV shows including Father Ted and Black Books, was given a verbal warning by West Yorkshire Police after he was accused by a trans activist of “misgendering” her during an argument on Twitter. Misgendering, for those new to the issue, is using pronouns appropriate to a person’s biological sex, where this conflicts with the gender they identify with.

The journalist Caroline Farrow also fell foul of police after a similar altercation on Twitter, this time with Susie Green, who runs the trans advocacy charity Mermaids. In March of this year, Farrow was contacted by Surrey Police who told her that she was being investigated under the Malicious Communications Act following a report by Green. Farrow tells me that she was informed by a police officer that she had misgendered Green’s trans daughter but, before a formal interview could go ahead, Green withdrew the allegations and the case was dropped.

More worryingly, in January 2019, a former police officer called Harry Miller was contacted by Humberside Police to be informed that he too had been reported for allegedly transphobic tweets. A limerick that he had shared was apparently a particular cause for concern, and Miller’s tweeting was therefore formally recorded as a hate incident. Although no crime had been committed, Miller reports that the police constable told him that his behaviour was worthy of investigation because “we need to check your thinking”. He was also told that Humberside Police would continue to monitor his social media accounts for further misdemeanours.

Following this experience, Miller organised a public meeting to discuss what he saw as the increasingly sinister behaviour of police in responding to reports of transphobic speech on social media. Out of this meeting came the organisation Fair Cop, a campaigning group that calls for existing laws governing freedom of speech, conscience and assembly to be enforced with greater transparency and fairness. Rob Jessel, co-founder of Fair Cop, tells me that he sees their campaign as responding to an urgent threat to political freedom, since the behaviour of police “all adds up to a chilling effect whereby people are scared of approaching the trans issue . . . and free speech affects everyone”.

“A small coterie of trans activists seem to be making the vast majority of the complaints,” says Sarah Phillimore, a barrister and member of Fair Cop. Given the guidance on transphobic hate crime issued by the College of Policing and handed down to local forces, police officers are under pressure to respond to such complaints with firm action or else risk being accused of transphobia themselves. “This isn’t about bashing the police,” Phillimore adds. “They need guidance that they can actually work with which is lawful, and an understanding that human rights are difficult—they’re often in tension, they often compete.”

The recording of “hate incidents” is a particular source of controversy. The College of Policing’s guidance, published in 2014, defines a hate incident as “any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice against a person who is transgender.” Defending their policy, a spokesperson for the college told me that such incidents “can cause extreme distress and be the precursor to more serious actions or crime”, which is no doubt true. Yet the wording of this guidance is so vague, and so reliant on subjective interpretation, that it could be open to misuse by politically-motivated actors.

On November 20, Miller’s counsel put this argument to the High Court as he brought judicial review proceedings against Humberside Police and the College of Policing. The court’s decision is expected to be released before the end of the year. His case will, says Miller, challenge “the idea that a law-abiding citizen can have their name recorded against a hate incident on a crime report when there was neither hate nor crime”.

If he wins, the ramifications could be huge. At the very least, the College of Policing will be tasked with reforming its guidance on hate incidents, and other public bodies may also be forced to re-examine their policies. And if he loses? If we are faced with a situation in which controversial opinions are liable to be criminalised, and police are free to enforce political orthodoxy with impunity? Well then, says Phillimore, “society had better get ready to build a lot more prisons.”

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