Scotland’s controversial hate crime bill is set to pass later on Thursday amid anger about its current exclusion of women and assurances that the legislation will not criminalise those whose views are considered by some to be transphobic.
Leading the final debate in the Scottish parliament on Thursday, Scotland’s justice secretary, Humza Yousaf, assured MSPs that the legislation balanced protections for victims of hate crime with safeguarding freedom of expression, stating that the rigorous consideration of the bill had “shown the very best of parliament”.
The final vote was delayed from Wednesday, after a marathon five-hour debate over a lengthy series of amendments resulted in one of Holyrood’s latest sittings and concluded the rocky passage of the bill. It is intended to consolidate existing hate crime laws but also creates a new offence of “stirring up hatred” on the grounds of religion, sexual orientation, age, disability or transgender identity.
On Wednesday, an amendment to add sex to this list of protected characteristics at this stage was voted down, after MSPs cross-party raised concerns about why women were excluded.
The former Scottish Labour leader Johann Lamont argued that the case for including women – “who understand hate crime more than any other group does” – was “indisputable”. An independent working group was established last month, led by Helena Kennedy, to consider whether the creation of a standalone offence or adding sex to the list of other protected characteristics would better tackle misogynist abuse.
But Lamont said it was wrong to “outsource our thinking to a working group, rather than wrestle with the issues of principle here in the parliament”.
Joan McAlpine, who broke with the SNP whip on a number of amendments, told colleagues: “The thing that finally turned me to my current position was the government’s decision to expand the definition of transgender identity to include cross-dressers who are not trans identified … It will seem bizarre to many people that men who enjoy cross-dressing are protected from hate crime, but women are not.”
But Yousaf urged MSPs to listen to women’s organisations, including Scottish Women’s Aid and Rape Crisis Scotland, which warned that a neutral sex aggravator could become a tool for domestic abuse perpetrators to use as part of a wider pattern of coercive control.
“I ask members to give the working group the time that it needs to explore the issue, come forward with recommendations and create, potentially, a world-leading approach.”
Holyrood did vote to strengthen freedom of speech provisions in the bill, after earlier iterations provoked an outcry from religious and cultural groups.
Yousaf accepted one amendment from the Scottish Conservative MSP Adam Tomkins, who is also convener of Holyrood’s justice committee, which restated rights under ECHR Article 10 and emphasised the right to offend, shock or disturb, in relation to a reasonableness defence.
Tomkins told MSPs: “So much fear has been stoked in relation to those matters that it is important to set that out. Criticising policy relating to transgender identity is not a hate crime under the bill. Even if you express yourself in a manner that others find transphobic, it is not a hate crime to discuss or to criticise matters relating to transgender identity”.
He added that clear explanation to the police and the public was now essential.
Tomkins and fellow Conservative Liam Kerr failed to secure an amendment that they argued would protect disagreements, for example, at the family dinner table.
