Hate crime against trans people is rampant and rocketing in England and Wales.
In 2011/12, the police recorded 313 hate crimes against trans people, but in 2018/19, they recorded 2,333. From 2012-2014, the Leicester Hate Crime Project researched hate, and interviewed 24 people targeted because they were trans. 21 of them reported verbal abuse, nine regularly, nineteen reported bullying, and fifteen reported violent crime. 36% of the hate crimes had occurred in public. Only 27% of trans victims reported the incident to the police, less than any other group.
The Law Commission has a consultation on hate crime, closing 24 December. I hope trans-excluders will respond, because their delusional rage will reinforce the need for law protecting trans people.
On race and religion, hate crime law is different from on trans. Assault, criminal damage, public order and harassment offences are recorded as separate, aggravated offences. For trans people, the offence is not different, but the penalty is. This is called “enhanced sentencing”, and has applied to trans people since 2012.
Because a hate crime against a trans person is the same offence as the same crime not motivated by hate, the same maximum sentences apply. The hate is merely one aggravating factor, leading to a longer sentence. This means to me that hate crime against trans people is treated less seriously than hate motivated by religion or race. The maximum sentences for hate against Black people are greater than the maximum sentences for hate against trans people.
If the charge is murder motivated by hate based on race, religion, sexual orientation, disability or transgender identity, the starting point for determining the minimum term is 30 years. This can double the minimum term.
Hate crime can have a greater emotional effect on victims, because we are singled out for something we cannot control. It is more likely to cause a loss of confidence, or anxiety, than non-hate crime. It may make people change our behaviour. It affects others in the community, who feel they could have been victimised too. It damages social cohesion and divides communities.
That the crime is more serious justifies a harsher punishment, whether it is for deterrence, to show victims we are valued by society, or a punishment viewed as fitting the crime.
In Northern Ireland, the definition of hate crime is broadly similar to England’s, but hate of trans people is not included. In Scotland, the definition of trans people is different, and there is a new Bill to change it again.
The police define hate crime, for the purpose of recording how hate motivates crime, differently to the law. It also has a specifically different definition for transgender. It was agreed in 2007, before hate crime against trans people was recognised by enhanced sentencing.
The police say hate crime is “Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice based on” the characteristic or perceived characteristic. But for trans, it is any crime “motivated by hostility or prejudice”. For race, etc, the police look at the perception of victim or witnesses, but for trans people the actual hostility of the offender. When this definition was produced, hate crime law had not been extended to trans people, but the definition was not changed when hate against trans people was made illegal.
The police also record “hate incidents”, where the offender’s actions do not amount to a crime, but the actions appear to demonstrate hatred of a characteristic.
On race, religion and sexual orientation, but not trans or disability, there is an offence of “stirring up hatred”. The police have a power of immediate arrest, in private or public places, and it is sufficient if either the offender wishes to stir up hatred or hatred is likely to be stirred up. If that offence were extended to trans people, WPUK meetings might be criminal.
What is transgender? The Criminal Justice Act says that “references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment”. That means, being TS or intending to transition definitely counts, but because of the word “includes” other ways of being trans- thinking about transition but not yet committed to it, and, arguably, nonbinary or cross-dressing would count, as those are included in the ordinary meaning of the word “transgender”.
However the Law Commission in their paper misinterpret this wide, inclusive definition. At page 11 they say “gender reassignment surgery” rather than “a process of gender reassignment”, which means any change to gender presentation. If they make that mistake, they won’t be the only ones.
The Law Commission consulted in 2014, and people criticised the definition. Now, the Law Commission consider the definition should emphasise the identity and personhood of the individual- do you think you are trans? Do you think your gender is other than that assigned at birth?- but also, if the offender presumes the person to be trans.
The Hate Crime and Public Order (Scotland) Bill includes: female to male transgender people, male to female transgender people, nonbinary people and people who cross-dress. It has a separate characteristic for intersex people.
The Law Commission wants the language to be inclusive. They think the reason to make a crime more serious, or punishment harsher, is to condemn hostility and prejudice towards nonconformity with gender stereotypes.
So, I would make the category trans or gender nonconforming, to include people who do not fit gender stereotypes and indicate that by dress and behaviour.
The consultation paper, and information on responding, is here.
You can respond here. There are 62 questions, but you don’t have to answer them all, and could have a go at question 8, which is the most relevant to trans people:
Consultation Question 8.
11.89 We provisionally propose that the current definition of “transgender” in hate crime laws be revised to include:
• People who are or are presumed to be transgender
• People who are or are presumed to be non-binary
• People who cross dress (or are presumed to cross dress); and
• People who are or are presumed to be intersex
11.90 We further propose that this category should be given a broader title than simply “transgender”, and suggest “transgender, non-binary or intersex” as a possible alternative.
11.91 Do consultees agree?
11.92 We welcome further input from consultees on the form such a revised definition should take.