Gender and the Hate Crime Bill in Ireland

In 1945 George Orwell wrote an essay entitled ‘The Freedom of the Press’ to preface his book Animal Farm.   It wasn’t included and lay undiscovered until 1972. The essay examines the phenomenon of voluntary censorship and specifically how the English press censored itself during WW2 by refusing to report on the internal dynamics of the Russian regime.  Orwell opined that “The sinister fact about literary censorship in England is that it is largely voluntary.”  This self-censorship is possible because at any given time there is a set of ideas, an orthodoxy, that it is assumed all ‘right thinking’ people accept without question.  With these ideas comes a voluntary code of behaviour that makes it clear that while it is not forbidden to say certain things, it would be very bad form to do so.  And just as the Victorians didn’t mention trousers in the presence of a lady, the English press didn’t mention the purges or famines that occurred under Stalin during the war. 

Voluntary censorship is in operation in Ireland around the concept of gender identity. Gender identity is the belief that all humans have an internal sexed soul that may or may not match the physical body. It has offered a system of ideas and ideals that have formed the basis of a political theory that now informs policy in almost every facet of Irish life. From the removal of the word woman from public health campaigns, the proposal to introduce mixed sex toilets in secondary schools, telling primary aged school children that boys and girls can change sex and housing male sex offenders in the women’s wing of Limerick prison, the reach of the ideology is long and pernicious.  Those who do not agree with this new political theory are rarely heard and when they are given voice they are reframed as dinosaurs, bigots or fascists.  As improbable as it sounds, NGOs such as Amnesty Ireland and the National Women’s Council of Ireland have actively facilitated the silencing of women critical of gender identity theory.   While it is not pleasant to be labelled negatively the opprobrium faced by women does not include criminalisation for thinking or saying men cannot be women but those halcyon days may be numbered with the publication of legislation to criminalise hate crime and hate speech.    

With a handful of notable exceptions most journalists in the Irish mainstream media do not critically examine the claims made by gender identity theory when it touches their area of interest e.g. sport, education, health.  Where gender identity is addressed at all, the Irish media tends to defer to it as fact with scant examination of the claims made on its behalf.  A type of omerta is in operation on the subject.  And true to form most of the Irish media has not addressed the influence gender identity theory has had on the proposed Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022.  The bill was published and approved by the Irish cabinet on October 25^th and will make its way through the Oireachtas (Irish parliament).  Justice Minister Helen McEntee hopes it will be enacted into law by the end of the year.  The bill aims to make it easier to secure prosecutions for hate crimes.  

In April 2021 the wording (general scheme) of the proposed bill was examined by a cross party committee during a process called pre legislative scrutiny.  In the summary of the process it is reported that expert witnesses and  committee members provided recommendations on areas where it believed changes or amendments were warranted. These included an expansion of the characteristic ‘gender’ to include ‘gender identity’ and ‘gender expression’ and an examination of whether a demonstration test should be included as a legal test of proof of motivation. In the original bill’s wording, the legal test that needed to be satisfied to prove a hate crime had been committed was the motivation test. The motivation test required proof of someone’s subjective motivation for committing an offence. However, determining what is someone’s head at the time of an alleged offence can be difficult to establish and therefore might not result in a conviction. Expert witness, Dr. Seamus Taylor, Head of the Department of Applied Social Studies in Maynooth University and some committee members proposed the inclusion of an additional legal test called the demonstration test.   Dr Taylor cited its use in UK Hate Crime legislation as proof of concept.  A demonstration of hate could include the use of hostile or prejudiced slurs, gestures, other symbols or graffiti at the time of offending. 

Not all expert witnesses agreed with the inclusion of the demonstration text.  Dr. Jennifer Schweppe and Dr. Amanda Haynes, co-directors of the European Centre for the Study of Hate, argued against using a demonstration test in the context of aggravated offences and preferred the original approach in the General Scheme of using only a motivation model in prosecuting these offences. They stated that this aligns better with the principles of minimal criminalisation and provides a better balance between addressing the hate element of crimes while also taking into account the stigma of having a conviction for a hate crime offence and the associated impacts.  

Dr Schweppe and Dr. Haynes also argued against perceptions that a demonstration test is the standard which other jurisdictions strive to meet when formulating hate crime legislation. They argued that the UK is an international outlier in terms of using the expansive model of the demonstration test and pointed out that when New South Wales was amending their hate crime legislation, they rejected including a demonstration test as they believed it to be too wide. 

Hate crime laws are not universally championed, including by those who advocate for the rights of minorities, pointing out that just as this law will be used to defend certain groups it will also be used to oppress others. Hate crime legislation can serve as a legal tool to enforce a particular moral or political point of view, remember Orwell’s code of behaviour? Civil society organisations like Fair Trials have pointed out that;

‘Recent expansion of hate crime laws has not worked: In recent years, EU Member States have strengthened criminal provisions governing hate speech and hate crime, particularly those which target people on account of their ethnicity or race.

[1] Despite this, we have witnessed unprecedented levels of racism and xenophobia across Europe in the context of the COVID-19 pandemic.

[2] Tougher criminal laws are not leading to more inclusive societies. Instead, they reinforce punishment as a solution based on individual actors and fail to address the systemic production and manifestation of hatred. Other responses are necessary’.

Gender, Gender Identity, and Gender Expression

The Act aims to criminalise the incitement to violence or hatred against a person or a group of persons on account of certain characteristics (referred to as protected characteristics).  In this Act, “protected characteristic”, is defined in relation to a person or a group of persons and means any one of the following, namely— race, colour, nationality, religion, national or ethnic origin, descent, gender, sex characteristics, sexual orientation, or disability. Gender has been expanded to include ‘gender expression’ and ‘gender identity’.  During the pre-legislative stage, the committee recommended that ‘consideration be given to expanding the number of protected characteristics in order that the Bill is in line with the characteristics of the Equal Status Acts’.  A public consultation to amend the Equal Status Acts (ESA) to include ‘gender expression’ and ‘gender identity’ as protected characteristics was conducted in 2021.  The results of that consultation have not been published, the Equality Acts have not been amended to include ‘gender identity’ or ‘gender expression’ but ‘gender identity’ and ‘gender expression’ are included in the hate crime bill. Has a decision been made to include these new characteristics in the ESA but the public have yet to be informed?

The Bill’s Definition of Gender

The bill’s definition of gender is a masterclass in ambiguity.

 “gender” means the gender of a person or the gender which a person expresses as the person’s preferred gender or with which the person identifies and includes transgender and a gender other than those of male and female

Does gender refer to sex (being male or female) or to the socially constructed norms, behaviours and roles associated with being a woman, man, girl or boy? Including ‘gender expression’ and ‘gender identity’ in this legislation gives men who ‘identify’ or ‘express’ themselves as women the right to access female spaces without the requirement of a gender recognition certificate.   How does it ‘feel’ to be a woman?  How do women ‘express’ themselves?  The legislation is short on those details.   And if women publicly or privately object to the casual sexism that reduces them to an idea in a man’s head or clothing or makeup, they may face prosecution.  If this seems like a dystopian fantasy one only must look to Norway for evidence of how this could play out for women in Ireland.    In January 2021 Norway added ‘gender identity’ as a protected ground to their hate legislation.  In May 2022 Norwegian police opened an investigation for ‘hate speech’ into Christina Ellingsen, the country representative for the women’s rights group WDI (Women Declaration International).  Ms Ellingsen’s alleged crime is that she tweeted that a man could not be a lesbian or a mother.  Ellingsen told Reduxx magazine 

“I am under police investigation for campaigning for women’s rights, because to certain groups, the fact that women and girls are female and that men cannot be women, girls, mothers or lesbians, is considered hateful,” 

“Women are not protected against hate speech in Norway, but men who claim to be both lesbian and a woman, are protected both on the grounds of gender identity and on the grounds of sexual orientation.” 

Ms Ellingson is awaiting a decision on whether the case will be prosecuted and whether she will face trial.  As is often the case when women are defending their sex based rights the process is the punishment. 

Maya Forstater and Allison Bailey

How Hate Crime legislation, employment law and European law intersect has to be tested.  In June 2021 the UK’s Employment Appeal Tribunal found that the right to be gender critical is protected in law. The case, brought by Maya Forstater, against her former employer, the Centre for Global Development, relied on both domestic and European law (Articles 9 & 10 of the European Convention on Human Rights).  The Tribunal found that the right of a person to state they believe biological sex is real is protected in law and is worthy of respect in a democratic society.  The ECHR is operational in Ireland and women may have recourse to it should they need to defend themselves against an allegation of hate speech for stating that sex is real.  In 2021 barrister and founder member of the UK LBG Alliance, Allison Bailey, also took a discrimination case against her employer, Garden Court Chambers on the basis that they had discriminated against her because of her gender critical beliefs.  In July 2022 the tribunal ruled in favour of her claim she was discriminated against and victimised for her beliefs but did not uphold her claim that she had lost work because of them.  She is appealing that portion of the ruling.  While women in Ireland may take some comfort from the Forstater and Bailey judgements, relying as they do, in part, on European law, prosecutors in Ireland may argue that Articles 9 and 10 are subject to limitations imposed by domestic law (Hate Crime) if those laws are deemed necessary to preserve public safety and the rights and freedoms of others.  It is impossible to say to which side of the scales the balance of rights would weigh heaviest.

The Naivety of the Righteous

Hate laws criminalise thought, they don’t change behaviour.  In the 1920’s, Germany’s Weimar Republic introduced emergency powers to crack down on Nazi hate speech.  When the Nazi’s took power in 1933, they didn’t revoke these emergency powers they expanded them to shut down dissent and freedom of assembly.  The cure was worse than the disease.  As Orwell states in the Freedom of the Press ‘These people don’t see that if you encourage totalitarian methods, the time may come when they will be used against you instead of for you’. Irish parliamentarians have an opportunity to amend this bill before it is enacted.  Will they have the courage to discuss the impact of gender identity politics on our ability to speak freely, to say what we can see with our eyes.  Or will they behave as the English press did in the 1940’s and censor themselves for fear of upsetting those who reframe acknowledging biology as hate?