The reaction to a free-speech amendment by Scotland’s justice secretary Humza Yousaf to his controversial Hate Crime Bill left an MSP “alarmed and a little afraid”, a Holyrood committee has heard.
Scottish Conservative MSP and convener of the justice committee Adam Tomkins said the reaction from some of his colleagues to Mr Yousaf’s amendment made to the Hate Crime Bill, which would have allowed specific freedom of expression protection when discussing transgender identity, was “disturbing”.
The amendment put down by Mr Yousaf last week said: “behaviours and materials are not to be taken as threatening or abusive solely on the basis that it involves or includes discussion or criticism of matters relating to transgender identity”.
The news of the change even sparked backlash within his own party with many younger and LGBT+ SNP members threatening to quit or resigning their membership, this prompted Nicola Sturgeon to record a video in which she pleaded with them to remain party members.
As a result of in party lobbying, it was revealed by Mr Yousaf on Monday evening that he had withdrawn his amendment and had met with opposition parties to try and write a new amendment.
Regardless of the concession, Mr Tomkins said with hate crime legislation there was a “criticism of vagueness” and of “over-breadth”, both of which must be avoided in the Bill.
He said: “It seems to me that the events of last few days, the reaction to the amendments put down in this group about transgender identity make it more apparent that we absolutely must define what we mean.
“I have to say I have been disturbed by the reaction I have seen to what were modest, innocent amendments put down by the Cabinet Secretary and which I would have voted for.
“But it’s clear that even the words the Cabinet Secretary’s carefully chosen in the amendment have caused fear, alarm and distress and I take that seriously, but I have to say I’m alarmed and distressed and perhaps even, if I’m honest, a little afraid of aspects of the reaction to it.”
Mr Tomkins continued: “Yesterday a leader of a party in Holyrood tweeted that a number of amendments put down were ‘shockingly and overtly transphobic’ and I think we’ve come to the point where if we’re going to criminalise hate speech on the grounds of transgender identity we have got to define what we mean.
“I struggled to find an amendment in this that I thought was ‘shockingly or overtly transphobic’. If we take the words of Liam Kerr’s amendment, and I don’t know if this was the amendment the MSP was talking about, stating that sex is an immutable biological characteristic does not make you transphobic, stating that there are only two sexes, does that make you transphobic really?
“Using the words woman or man in equivalent terms or pronouns in a certain way – does that make you transphobic? Is that the speech we’re seeking to criminalise here?
“It seems to me a conclusion has been reached behind closed doors that the way forward is to find some sort of generic free speech clause and I worry about this. Given the problems we’re trying to tackle are of vagueness and overbreadth, having a generic rather than a series of very specific clauses might not meet that challenge.”
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