2nd Witness statement in the Fair Cop Judicial Review: on "hate incidents" and the perception of them.

(Ruling here)

I was pleased to write two witness statements for the Fair Cop Judicial Review  at the Royal Courts of Justice (1st day: 20th November 2019). The first was submitted in support of the initial application for a review. The second is reproduced below. It specifically concerns what I take to be significant disanalogies between "incidents perceived to be racist", and what are described as '“incidents/crime which involve an element of hostility on the grounds of transgender identity”.

1. I make this Statement in response to the submissions filed by the First Defendant at paragraph 40 of their Summary Grounds and paragraphs 3-12 of their detailed grounds. By this response I seek to explain the difference between racist non-crime incidents and the tweets posted by Harry Miller, which are the subject of this case.

2. The Macpherson Report, emanating from the Stephen Lawrence inquiry, defines a “racist incident” as “any incident which is perceived to be racist by the victim or any other person" (my italics). More recently, the Crown Prosecution Service and National Police Chief’s Council have jointly defined “incidents/crime which involve an element of hostility on the grounds of transgender identity” as: “Any incident/criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender" (again, italics are mine). The latter formulation clearly follows the Macpherson formulation in elements of structure, as well as in its reference to a victim’s or other person’s perception as the determinant of whether racism or transphobia occurred. Yet, whereas it may well be reasonable to define a racist hate incident as an incident perceived to be racist by the victim or another, in contrast, in my view it is not reasonable to define a transphobic incident in terms of “an incident perceived to be motivated by hostility or prejudice against a person who is transgender (etc.)”. I will now spell out several disanalogies between the two sorts of case, as I see them.

3. In my discussion, I will refer to three core examples of utterances frequently perceived by hearers to be motivated by transphobia, understood as hostility or prejudice against a person who is transgender, as such:

1) the statement “Trans women are men”;

2) the statement “Trans women aren’t women”

3) the use of the pronouns “he”/”him”, rather than “she”/”her”, in referring to a trans woman in the third person.

4. I will argue that these utterances are not, in fact, inevitably or perhaps even usually to be genuinely counted as hostile or transphobic, even if perceived by a hearer as such.

5. Where an utterance is perceived to be racist, it usually contains some identifiable pejorative element which explains that perception, so that it is not reasonably interpretable merely as straightforward, non-evaluative description. For instance, racist utterances might involve: a slur, such as the N-word, conventionally expressing contempt; mocking epithets designed to ridicule; or other statements expressing personal disapproval. In contrast, as I will now show, there are reasonable interpretations of utterances 1)-3) available, according to which, in context, they contain no such pejorative, expressive, mocking, or disapproving elements. In the mouths of many people, these utterances are intended to convey, and be heard as, simple descriptions of observable facts; that is, they are intended to be fact-stating and non-evaluative utterances, along the lines of “water boils at 100 degrees” or “pillar boxes in the UK are red”.

6. For many English speakers, “woman” is strictly synonymous with “biologically female”, and “man” with “biologically male”. For these speakers therefore, given the accompanying true belief that trans women are biologically male, to say that “trans women are men” and “trans women aren’t women” is simply to neutrally state facts. Equally, for many English speakers, the pronouns “she” and “her”, when applied to humans, are correctly used only to describe human females in the third person; while the pronouns “he” and “him”, when applied to humans, are correctly used only to describe human males in the third person. For these speakers then, a failure or refusal to use the preferred pronouns of a trans women is not an expression of hostility, but an indication of an underlying descriptive, non-evaluative belief: that that the trans woman is male.

7. There are many possible reasonable accompanying grounds for making utterances 1)-3) in this descriptive, non-evaluative way. Let’s call the theory that trans women are correctly classified as women, even though they are biologically male, “TWAW-theory”. Evidence that utterances 1)-3) count for many speakers as simple factual statements, rather than hostile insults, includes that TWAW-theory originated only in the 1970s, and for several decades afterwards was mostly confined only to academic discussion in Universities in the Humanities. There is therefore a large number of older and/ or non-University-educated people in the UK still unaware of this theory, who were taught and still believe that “man” means “male’ and “woman” means “female”. They are likely to assent to 1)-3) if asked, not out of hostility but because they believe those utterances to reflect facts. Amongst this group there may also be many people who if asked, would verbally agree that trans women are women, but would take themselves to be only temporarily pretending for the sake of politeness. Where one takes oneself to be pretending something for the sake of politeness, it is natural enough that one will also assume there are certain contexts where it is permissible not to pretend, and to state what one takes to be the truth.

8. For others who are aware of TWAW-theory, they may well disagree with it on philosophical, scientific, political, or religious grounds. For instance: on the grounds of semantics, one might conclude that the published arguments which putatively support the idea that the term “woman” could reasonably semantically refer to biological males as well as females contain logical missteps. On the grounds of biology plus semantics, one might conclude that the biological categories of males and females are discrete, that the existence of intersex people does not threaten these categories’ scientific validity, and that equivalent words for these categories are “women” and “men”. On the grounds of politics, one might note that the categories of “women” and “men” respectively appear in many places in law and policy, sometimes with special protections for the former in recognition of the context of a misogynistic society, and that therefore it is politically disadvantageous for females, as inhabitants of the category of “women”, to admit into the same category people of the opposite sex. Also on the grounds of politics, one might argue that political protections and other social goods for lesbians in particular are endangered, should heterosexual male trans women be counted as “women” and so too as “lesbians” (a slippery slope currently often urged by influential LGBT charities). On the grounds of religion, one might insist that the God-given function of men and women is such that these categories align strictly with biological sex. These are each rational positions to hold, whether or not they are ultimately correct, and each can be held without any accompanying hate, disgust, fear, or dislike of trans people.

9. Now perhaps it may turn out that the descriptive belief that trans women are men and not women is philosophically false. Though I am sceptical for several reasons, it may turn out that there are cogent senses of “woman” and “man”, such that, semantically, biological males can reasonably be counted - literally - as women and not men, and biological females can reasonably be counted – literally - as men but not women. If this is right, then trans women are women, and not men. Such a conclusion is often argued for by academics in University Gender Studies Departments: effectively they argue that the semantic reference of the concept “woman” is not to be determined by biological sex. But whether or not this is a possibility, it is not relevant for establishing whether utterances 1)-3) are inevitably to be perceived as hostile and transphobic. Being factually or philosophically wrong is not the same as being hostile or hateful.

10. It is sometimes argued that utterances 1)-3) are on a par, in terms of offence, with statements such as “black people are not human” or “lesbians aren’t real women”. However, here too the proposed analogy fails, for there are very few reasonable interpretations of the latter utterances as simply descriptive and non-evaluative. To most ears, each clearly expresses a value judgement, about black people and lesbians respectively. In contrast, as argued, there are many reasonable readings of 1)-3) according to which they express no value judgements whatsoever but simply state perceived facts.

11. It is true that the Gender Recognition Act 2004 states that “Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).” It is debatable whether in fact this should be interpreted as meaning that trans women are literally to be counted as women, for every single purpose. Evidence that this is not so, is that the Equality Act continues to list sex as a protected characteristic, in principle granting the right of women (females) to be separated from men (males) for certain purposes; and that trans women continue to be appropriately treated biologically and medically as males in many contexts. For instance, current evidence suggests  that trans women should be screened for prostate cancer at the same rates as non-transgender males (Deebel et al 2017); evidence also suggests that trans women, even post-three years of hormone treatment , retain significantly more muscle mass than females (Gooren and Bunck 2004). Indeed, the idea that a person can legally change gender or sex is often interpreted as a “legal fiction”. But even if this sort of evidence is misleading, and it is established beyond doubt that the Gender Recognition Act does mean that trans women are literally to be counted as women for every single purpose, it is not appropriate (in my view) for the police to prohibit or discourage people from making verbal or written statements, such as 1)-3), which (for the sake of current argument), are at odds with statutory laws.

12. If it is true that, as I have argued, there are many neutral descriptive readings of utterances 1)-3) available, then by extension, more colourful, humorous, or expressive articulations of the claims made in 1)-3), in forms such as jokes, limericks, exclamations, and so on, should also be read, potentially, as simply emphasising the descriptive points contained in 1)-3) rather than inevitably implying hostility to trans people. Levity, mockery, or anger accompanying such articulations may well be symptomatic of the speaker or writer’s frustration towards disagreements about facts, rather than as indicative of mockery or disgust towards trans people themselves.

13. In light of the arguments above, it might reasonably be asked: why, then, are hearers, including in some cases police officers and law-makers, so quick to perceive utterances 1)-3), and their more colourful variants, as indicative of hostility to trans people, and so classify such utterances as hate incidents, when more neutral interpretations should also be readily available? This is a good question. Here we find a further disanalogy with race incidents. Those who regularly experience race incidents normally do not need to rely heavily on a process of “education” or “training” by public bodies in order to be able to perceive these incidents as such. In contrast, through the use of publications, surveys, poster campaigns, newspaper adverts, political lobbying, and other means, well-funded politically powerful charities and lobbying groups such as Stonewall, Mermaids, and Gendered Intelligence have insistently and explicitly encouraged – if not wholly produced - the public impression that the only grounds a person might have for making utterances 1)-3), or their variants, is hostility to trans people. To take just a few core examples pertaining to the charity Stonewall: on their website and in publications, Stonewall explicitly defines “transphobia” as “the fear or dislike of someone based on the fact they are trans, including the denial/refusal to accept their gender identity” (my italics). That is, they explicitly equate a denial that trans women are women with “fear or dislike”. Their well-known T-shirt and poster campaign tells us “Trans women are women. Get over it”, thereby clearly implying that any dissent to the first sentence must be grounded in resistance due to obstinate bigotry, rather than in reasonable disagreement over facts. In a statement on their current website, former leader Baroness Ruth Hunt equates political opposition to proposed changes to the Gender Recognition Act as “questioning trans people’s right to exist”, an obviously tendentious reading which ignores the fact that those who disagree that trans women are women don’t deny that they exist, nor that they have a right to. As a requirement of membership of Stonewall schemes such as their Workplace Equality Index Scheme, their Diversity Champion scheme, or their Workplace Trans Allies programme, companies, public institutions, universities, schools, policy-makers and law enforcement agencies arrange “trans training” for their employees, during which employees are explicitly instructed to accept the stated gender identity of trans people, “without exception”, and to observe their preferred pronouns on pain of bigotry. No consideration is given to why this might be an intellectually unacceptable thing to do for some independent-minded rational people. The worst possible motive is assumed and ascribed in advance.

14. To sum up, then: where an utterance is perceived by a hearer to be racist, there are usually only a very limited number of reasonable alternative explanations available for the possible motivation behind that utterance, other than that it was hostile and intended as such. In contrast, where utterances such as 1)-3) are perceived by a hearer as hostile and transphobic, there is - or at least should be - a number of straightforward non-expressive, non-evaluative readings available, reflecting prior sets of beliefs about category membership. The fact that such readings do not in fact tend to be made by hearers, so that utterances 1)-3) tend instead to be heard as transphobic, is not a reliable guide to the true nature of the utterances, but rather is an artificial product of the one-sided and well-financed propaganda campaign waged effectively by Stonewall and other trans advocacy groups. I conclude that a transphobic incident is currently improperly defined by the CPS and National Police Chief’s Council. The definition is likely to result in many people undeservingly being reprimanded, having a hate incident recorded against them or worse.