Critics are right to worry that hate speech laws are open to abuse

Our new Taoiseach Simon Harris, famous for having not one but both index fingers wetted and held up to the wind at all times, obviously intuits that there is a rising sense of unease about the hate crimes Bill. He has moved from unequivocal support to suggesting that politicians need to demonstrate humility and the ability to listen.

Some people are concerned about hate offences legislation in general, and the multiple ways in which it can potentially be abused. For example, in 2015, 12 Palestinian activists were convicted under French laws that criminalise those who “incite discrimination, hatred or violence towards a person or group of people on grounds of their origin, their belonging or their not belonging to an ethnic group, a nation, a race or a certain religion”. The activists collected groceries of Israeli origin into trolleys in supermarkets and handed out leaflets asking shoppers to boycott them because they alleged that buying Israeli products legitimised crimes in Gaza.

Russians were the most vociferous proponents of incorporating prohibitions on hate speech in the UN Declaration of Human Rights. Nadine Strossen, in her book, Hate: Why We Should Resist it With Free Speech, Not Censorship, describes how Eleanor Roosevelt skilfully resisted the Soviet Union’s pressure tactics.

Others worry about the fact that key terms such as “hatred” and “inciting hatred” are not defined in the proposed Irish legislation. We will know it when we see it, apparently.

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Critics are right to worry that hate speech laws are open to abuse

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Hatred is an emotion or an attitude that surely only constitutes criminality when it results in actions that harm others. Intent must also matter. However, Section 10 of the Bill says it will be an offence merely to possess material that could incite hatred, even if it has not been communicated to the public. Paul Murphy TD has described this as creating an offence of thought crime.

To misquote Animal Farm, some protected characteristics are more protected than others

The onus is on the accused to prove that he or she did not intend to disseminate the material, a reversal of legal norms.

Scotland’s widely disliked new hate speech law which – with unintentional irony – was introduced on April 1st, repealed the country’s ancient anti-blasphemy legislation, last used in 1843. Some think that is not a coincidence.

In William Blackstone’s famous commentaries on the law, published in the mid-18th century, he describes blasphemy as the crime of revilement of the ordinances of the established Church of England, by which he meant Protestant dissenters such as Presbyterians, Puritans, Anabaptists and Quakers, as well as Jews, Muslims and Catholics. Public officials had to take various oaths and sign documents repudiating transubstantiation to show their orthodoxy.

The fear that some people feel even to raise concerns about say, the use of powerful puberty blockers in children, is a disturbing echo of blasphemy laws that punished alleged heretics.

The Bill lists protected characteristics, which include race, colour, nationality, religion, national or ethnic origin (including membership of the Traveller community), descent, gender (including gender expression or identity), sex characteristics, sexual orientation and disability. To be clear, no one should condone hatred of any of these groups, much less intimidation or incitement to acts of violence.

But to misquote Animal Farm, some protected characteristics are more protected than others. After successful protests by students, journalist Mary Kenny – who was there when Women’s Liberation began in Ireland – was cancelled by the University of Limerick from an International Women’s Day event. She was not even focusing on transgender issues.

The voices of moderate people wishing to proceed cautiously with gender transition for children are only beginning to be heard. The Cass Report, which was published this week, states that the puberty-blocking protocol that became standard for children with gender distress was based on a small Dutch study of young people who showed improvements in mental health. This cohort had experienced gender dysphoria from an early age, had no significant mental health difficulties and had good family support. Cass also points out that these young people also had constant psychological or psychiatric support, which may have been responsible in part for the improvements in wellbeing.

The preliminary results of a UK study on 44 young people carried out between 2011 and 2014 showed no improvement in psychological wellbeing. There was a significant increase among females after one year of treatment of scoring statements such as “I deliberately try to hurt or kill myself” as “sometimes true”.

From 2014, there was an increase in girls presenting with gender distress. Despite the adverse findings of the small UK study, puberty blockers and hormonal treatment became normal practice, “including for patients with no history of gender incongruence prior to puberty, as well as those with neurodiversity and complex mental health presentations”. As Cass says, children deserve far better.

There has been vitriol on all sides, but gender-critical feminists such as Kathleen Stock and Maya Forstater suffered – Forstater lost her job and Stock said a lack of support from her colleagues and the unions led her to resign. It took three years for Forstater to be vindicated. Will hate crime legislation protect either people like them or religious people with views out of step with current mores? Blasphemy laws in the past supported the idea that heretics had fewer rights. Hate crimes law must not repeat that mistake.