Some issues of concern in relation to the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022:
1.The first one is that the definition of gender in this Bill upturns the normal understanding of gender:
“Gender” is still the term used on forms e.g. passport applications. Protecting “gender” may look like protecting women from abuse on social media for instance. But “gender” is now being used as shorthand for “gender identity”. This Bill appears to legally equate a woman's sex with the belief of some men who “self-id” as women or as a gender other than male or female.
Three years ago in Norway Christina Ellingsen warned that putting “gender identity” into the criminal law would enable someone’s subjective beliefs to become the basis for what is considered punishable by law.
This is exactly what happened to Christina: an activist reported her for asserting that “men cannot be women, girls, mothers or lesbians, because men are male, it is impossible to change sex, and women are adult human females.” She was interviewed by the Norwegian police twice, for a total of nine hours. Eventually the investigation was dropped but similar investigations are happening elsewhere, from Britain to Australia.
As soon as Irish women began to indicate our concerns about this ideology in 2020 a letter was published signed by various organisations which said “We call on media, and politicians to no longer provide legitimate representation for those that share bigoted beliefs,” accusing us of wanting to “defend biology”
In June 2021 Maya Forstater in the UK won her employment appeal based on her belief that sex is real and that it matters. A court here might yet make the same ruling especially since, as barrister Anya Palmer told an audience of 200 women in Dublin last November, the law that Maya relied on derives from EU law, in particular Framework Directive 78 of 2000.
2. The second point is that this Bill undermines existing legal protections for women under our equality legislation:
Women are a biologically distinct sex whose needs and rights are recognised in our equality legislation such as the 2000 Equal Status Act.
Gender under this Act has the ordinary and well understood meaning of sex as defined in Section 3 (2) (a): “that one is male and the other is female (the 'gender ground')”.
It’s not considered discrimination to allow women (and men) have single-sex services in some situations where privacy is an issue, for example.
But if this Bill is passed unamended will parents feel unable to complain under the ESA about mixed sex toilet provision which is causing upset for girls as reported in the media?
Parents at a new school in Kerry in March voiced their objections to unisex toilets. As one parent pointed out, it is contradictory if demands based only on gender transitioning are being accommodated. “What about girls' rights? These actions would seem to be eroding them,” she said.
Would a woman who said she encountered a man changing into women’s clothes in a Dublin gym be criminalised for “hatred” under this Bill if she challenged the man? Or might this Bill have a “chilling effect” with her fearing “being reckless as to whether such violence or hatred” was being incited towards him given his “protected characteristic”?
Less than two weeks ago it was reported in Britain that a "non-binary" man said he felt 'dehumanised' and accused a fashion brand of being 'transphobic'after he was refused entry to a women's changing room. Since this is, according to the definition of gender in the Bill, “a gender other than those of male and female”, will it be considered hateful to challenge the presence of such a person in a women's changing room?
Another woman has spoken of accompanying teenagers in her care to a women’s toilets when she saw a man dressed as a woman follow them in. If a child is on their own in a situation like that will he or she feel afraid to say anything because this Bill protects a man who believes he has a female gender identity?
3. Thirdly, the definition of “gender” in this Bill allows for the transgressing of accepted boundaries for the safety and dignity of women and children:
Women have a well founded fear of men or male bodies in our private spaces, or those of children, in which we are particularly vulnerable such as being in states of undress or asleep. Last year 83% of the recorded victims of sexual offences were female according to the CSO. The suspected offenders in rape and sexual assault were 99% male in 2021.
As the MBM policy analysis collective in Scotland has said “..legislation that enshrines sex as a matter of self-declaration can be expected to increase, for some males, a sense of entitlement to be in a woman-only space, regardless of their appearance or whether they possess a Gender Recognition Certificate.”
In Ireland the first poll of over 1,000 adults in June 2021 by The Countess women's group found that “the majority of adults are in favour of single-sex facilities and care provision.”
Will women or families be afraid to object to a nurse or carer who is male but who identifies as another gender either for themselves or for their mother, aunt, sister for fear of being accused of “hate”? This is one of women’s greatest fears especially when we get older or have a loved one who is vulnerable, or unable to give or withhold consent.
Will it be considered “hatred” for women to object to a man taking the place of a woman in an organisation representing women?
Could lesbian social outlets be afraid to refuse men entry – as in Tasmania for instance, where males claiming to be lesbian cannot be refused?
Will it be “hateful” for a woman or women to object to a man taking part in women’s sport, such as the TransAtlantic Way currently taking place here?
Will using the correct sex pronouns for someone be considered “hateful” misgendering?
This issue, as US lawyer Kara Dansky says
“..threatens the erasure of the female sex as a legal category worthy of protection...This linguistic destabilization of the meaning of sex permits males who claim a female identity to make demands on women and girls that were previously unheard of and that undermine women’s dignity and safety.”
Citizens need to retain freedom of expression to defend the rights of women and the safeguarding of children in relation to gender identity ideology being imposed in language and law.