Anti-trans activists who ‘aggressively campaign’ against trans women will be breaking the law, Scottish justice minister confirms

The Scottish government's justice secretary Humza Yousaf.

Scotland’s justice minister has confirmed that new hate crime legislation will mean anti-trans activists who “aggressively campaign” against transgender people will be breaking the law.

While saying that “trans women are not women” will not be criminalised, activists who accompany that comment with “threatening behaviour” could be prosecuted under new “stirring up hatred” offences.

Humza Yousaf was questioned about Scotland’s new hate crime bill at a meeting of MSPs at Holyrood’s justice committee on Tuesday (24 November).

Asked if the new law would criminalise those who say “trans women are not women”, Yousaf said: “No, not as an opinion. It may be offensive to some, controversial to others, the mainstream view for many others, but simply expressing an opinion isn’t itself criminal.”

He then added: “If there’s threatening behaviour which accompanies that expression and it can be proved beyond reasonable doubt that it was intended to stir up hatred, then of course it could be prosecuted, but that is not down to the perception of any particular victim, but an objective analysis by the court.

“By saying a trans woman is not a woman is not in itself going to lead to a prosecution.”

The new hate crime bill will make it a crime to stir up hatred against minority groups, including transgender people, with threatening or abusive behaviour.

Yousaf, who is a Scottish National Party cabinet minister, confirmed that a campaign promoting the view that sex cannot be changed would be prosecuted if it was deemed deliberately provocative.

Countering fears from anti-trans campaigners that the new law would silence them and prevent them from proclaiming popular slogans like “woman = adult human female”, Yousaf clarified that “there has to be the intent to stir up hatred”.

“Even if somebody could argue the behaviour was abusive, that in itself is not enough under this legislation to lead to a stirring up offence,” he said.

“The behaviour would have to be proven beyond reasonable doubt by a court of law that that person or organisation intended to stir up hatred.

“I cannot see how someone campaigning in a non-threatening or abusive manner without the intent to stir up hatred would be captured as an offence under this legislation.”

In 2019-20 there were 41 charges of anti-trans hate crime in Scotland, up one from 40 in 2018-19.

Homophobic hate crime has also soared to record highs in Scotland, according to official data. Annual statistics released by the Crown Office, Scotland’s prosecution service, revealed that there were a total of 1,486 homophobic hate crimes reported in 2019-20, up 24 per cent from 1,194 in 2018-19.

With the exception of 2014-15, homophobic hate crime in Scotland has increased year on year since it was included in hate crime legislation in 2010, making sexual orientation aggravated offences the second most common type of hate crime after race crime.

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