Sex Matters goes on to note how Stonewall has also moved the goalposts.

Stonewall also responded, publishing a statement that presents “misgendering” as akin to criticising religion. 

“The PM, and high-profile commentators, are incorrect when they suggest that misgendering or ‘stating facts on biology’ would be criminalised. This is no more true than stating that the existing law has criminalised the criticism of religion. This kind of misrepresentation about the Act and its purpose only serves to trivialise the violence committed against us in the name of hate.”

This is a big shift in position. 

To put it mildly. What does “terf” even mean now?

In Stonewall’s hate-crime resource, it defines being “insulted, pestered, intimidated or harassed” as a hate crime. In its Transphobic Hate Crime Report in 2020, Galop UK, a partner organisation of Stonewall, stated that the top three hate crimes against trans people were “invasive questioning”, “deadnaming” and “verbal abuse” (vaguely defined). 

But now they’re all “Don’t be so silly, of course stating facts won’t be criminialised.”

As Sex Matters wrote in February, even before the Scottish hate-crime law, women and men were being investigated, questioned and arrested for gender-critical speech. Stonewall has never previously stated that “misgendering” is not abuse, or that gender-critical people’s freedom of expression should be protected. In fact, it has said quite the contrary. 

Sex Matters provides a string of examples.

The reality is they’re all winging it, so they won’t arrest you if you happen to be JK Rowling but they will arrest you if you’re some boring nobody woman while no one is paying attention.

The new act states that a person commits an offence if they communicate material, or behave in a manner, “that a reasonable person would consider to be threatening or abusive”. Defenders of the law cite the “reasonable person” as a safeguard for free speech. It is worth considering, then, whether an employee of Stonewall would be considered a “reasonable person”. Stonewall continues to be considered an authority by many on issues relating to sex and gender – including, until recently at least, both Police Scotland and the Scottish government. 

I suppose “reasonable person” is like “reasonable doubt”? A legal term of art? But…fuzzy? How do we know what’s a reasonable doubt and what isn’t? Ditto person? Is the answer “That’s what judges are for”? But how do we civilians know how to avoid committing the crime of abusive speech as opposed to the non-crime of offensive speech? Should we all keep a judge on speed-dial in case we need to ask mid-conversation? Are there enough judges to handle the calls, and are they willing to?

Within political parties as elsewhere, there is much disagreement over what constitutes “transphobia”, and whether gender-critical speech is a matter of disciplinary action. In 2022, Scottish Green Party MSP Patrick Harvie accused “high-profile people within the SNP” of being “allowed” to “get away with promoting transphobia,” and spoke of reforming internal disciplinary processes. 

…

During the process of drafting the new law, several MSPs put forward amendments intended to protect freedom of expression. These were dismissed. As documented by policy analysts MurrayBlackburnMackenzie (MBM), the amendments were described by Harvie as hostile and as legitimising attacks on trans rights. 

Maybe one or more of those dismissed amendments explained the difference between “abusive” and “offensive.”

Another Scottish Green Party MSP, John Finnie, approvingly cited a briefing by the Equality Network, a Scottish charity. This briefing responded to one of the dismissed amendments – which listed several straightforward gender-critical statements as examples of what would not be caught by the new law, such as that sex is a physical binary characteristic that cannot be changed – characterising it as undermining the Act’s purpose: “To add into legislation a list of ‘approved’ statements that include attacks on the fundamental rights of one group of people is entirely wrong.” 

There’s another one of those contested terms. What exactly are “the fundamental rights” of trans people? What does John Finnie think they are? Is it a “fundamental right” of trans people to force everyone to agree that they are the sex that does not match their bodies? What other fundamental right is like that? Who else has a fundamental right to force other people to agree that an impossible thing is possible?

Despite promising that it would do so, the Scottish government failed to meet with MBM to discuss concerns regarding the law’s impact on gender-critical people, apparently because it did not want to “upset the transgender lobby”.

But apparently the Scottish government is fine with upsetting the women lobby, the people who know a man when they see one lobby, the reality lobby.

Women’s fears concerning the new law’s implementation have not come from nowhere. In a briefing submitted to MSPs as the bill was going through the Scottish Parliament, MBM provided evidence of women across the UK having already lost jobs, faced disciplinary action, been interviewed by the police or had details recorded on police databases simply for asserting that biological sex matters. 

But don’t worry about that, it was conclusively established in all cases that those women were abusive as opposed to merely offensive. The evidence for this conclusive establishing is in a locked drawer in a filing cabinet behind a boxcar in a locked room in a locked basement of a building that fell down yesterday.