Cont: Trans Women are not Women 3

[Earthborn]

Give me an example

Suppose someone claims that picking daisies is illegal. You ask for proof. This person reponds by showing a law that says that committing a crime with hateful intent makes it a hate crime.

Does that mean picking daisies with hateful intent is a hate crime?

 

[Manger Douse]

Suppose someone claims that picking daisies is illegal. You ask for proof. This person reponds by showing a law that says that committing a crime with hateful intent makes it a hate crime.

Does that mean picking daisies with hateful intent is a hate crime?

I want to know how it's possible to deliberatly misgeender a trans person and it not be a a hate crime and to misgender a woman and it be a hate crime

 

[Ron Obvious]

https://www.cps.gov.uk/crime-info/hate-crime

"Any criminal offence which is perceived by the victim...."

I'm a programmer, not a lawyer, but how on earth did that ever pass legal muster? That sounds far too wide open to me.

 

[Rolfe]

Policy capture.

 

[Boudicca90]

I want to know how it's possible to deliberatly misgeender a trans person and it not be a a hate crime and to misgender a woman and it be a hate crime

People have mistakenly misgendered me in the past, and if it's an honest mistake, I just correct them and move on. Or friends and family who occasionally slip up because they've known me for so long.

But if someone continues to do it, despite me correcting them and asking them not to, then we have a problem. People who do this do so because they don't see or acknowledge us as the gender we are and want to make that point very clear. And it is hateful and prejudicial in a way that it wouldn't be for someone who is cisgender.

 

[Aber]

As I said, maybe you didn't read the links properly or sufficiently carefully.

Did you?

“There may be hints of brain differences in transgender people, but you’d expect that because their life experience is going to have been quite different,” says Eliot. “How long they have identified as the other gender; the way they talk; who they played with as children; what sort of jobs they’re involved in – all of these things could affect those same pathways in subtle ways. There is certainly no proof of the Lady Gaga hypothesis that I was ‘Born This Way’.”

 

[LondonJohn]

Did you?

I did indeed.

And what I provided was links to a plenty of evidence showing that there are now good scientific data informing the conclusion that a) gender dysphoria is a genuine condition (as opposed to being the product of a mental disorder), and that therefore b) properly-diagnosed transgender people have the right to be identified as their new gender.

Oh and I provided links to show that the World Health Organisation has now reclassified gender dysmorphia as a genuine condition and not a mental disorder - a decision which will, obviously, have been made with reference to the sort of evidence to which I was referring in the previous paragraph.

By contrast, you've provided one single quote - which, I suspect, doesn't even say the thing you think it says (the quote points, correctly, to the fact that there's no proof positive that transgender people are born transgender - but that's an entirely different matter from there being weight of scientific evidence indicating that there's a medical validity to gender dysphoria, which was the issue under examination...).


As a footnote, I'd refer once more to the fact that countries including the US and UK now recognise the right of properly-diagnosed transgender people to inhabit the identity of their new gender: they are regarded in law as being their new gender, and their passport will show their new gender. And I would ask - once again - quite why those sorts of extremely significant rulings would have been made, were it not for persuasive arguments based upon objective research data and medical opinion?

 

[LondonJohn]

I'm a programmer, not a lawyer, but how on earth did that ever pass legal muster? That sounds far too wide open to me.

Well firstly, it's not talking about the criminal offence itself being in the perception of the victim: it's talking instead about the aggravating factor - i.e. where the criminal offence is elevated to a hate crime by being motivated by hostility or prejudice based on (e.g.) a person's transgender identity or perceived transgender identity.

And in law (everywhere), in crimes where things such as racism, transgender prejudice, homophobia form either an element of the crime or an aggravating factor in the crime...... the only feasible standard is the perception of the victim (or the perception of anyone else present). The reason for this is obvious: 1) there cannot ever be a legal definition of what empirically constitutes prejudice and hostility, and what does not; and 2) the only reasonable measure of offence is the perception of the victim or bystander (otherwise the offender could always easily claim "I didn't mean any offence, honestly", and it would be impossible for any court to disprove that claim).

But the other thing to bear in mind is this: if a case such as this came to court, and the charge included the aggravating factor, then the victim (or a bystander) would be required to come to court to testify that his/her perception was that the defendant's behaviour/actions was based on (e.g.) prejudice against transgender people. The victim would be examined by the prosecution, then cross-examined (within careful legal constraints) by the defence counsel. And it would then be for the court to decide whether the victim was telling the truth or not in respect of the alleged perception.

So in no sense does the law imply that if the victim claims (eg) transphobia, this therefore means that there's then an automatic presumption that transphobia was indeed an aggravating factor - rather, it just then becomes one of the things that the court is required to test and rule upon.

 

[d4m10n]

Doesn't show that misgendering someone is a criminal offence.

Has the case against Caroline Farrow been brought up yet?

Green and other activists for transgender rights view it as deeply offensive to deliberately use the wrong pronoun for a trans person. Doing so could be an offence under the Malicious Communications Act, which makes it a crime to send messages that are indecent or grossly offensive, threatening, or contain information which is false or believed to be false, if the purpose for sending it is to cause distress or anxiety.

I'm no barrister but this approach seems at least colorable.

 

[Earthborn]

I'm no barrister but this approach seems at least colorable.

I have no idea what you mean with "colorable".

 

[LondonJohn]

Has the case against Caroline Farrow been brought up yet?



I'm no barrister but this approach seems at least colorable.

There's every chance that this could pass into law - but only in the sense that it falls under the umbrella of transphobic abuse/harassment/prejudice.


But there's a crucial point to remember:

In order for any court to convict, prosecutors would have to show convincingly that the alleged victim perceived prejudice on account of the wrong pronoun having been deliberately used. The alleged victim would need to testify to the court as to the basis of that belief, and the court would then be required to adjudicate as to whether it (the court) believed the victim's perception to be honestly held.


To take a couple of examples:

Alleged Victim 1 (AV1) testifies that she was addressed with the wrong pronouns by Defendant 1 (D1), and that she perceived that this was a deliberate act by D1. Through AV1's examination and cross-examination, the court learns that this was only the second time that D1 had ever addressed her; the first time (when he had also used the wrong pronoun) was 18 months previously, and she hadn't directly corrected him at that time - but thought she remembered hearing that someone else had corrected him.

The court would (IMO) determine that AV1 was not honest in her perception that D1 had deliberately used the wrong pronoun, and therefore D1 had committed no crime.


Alleged Victim 2 (AV2) testifies that she was addressed with the wrong pronouns by Defendant 2 (D2), and that she perceived that this was a deliberate act by D2. Through AV2's examination and cross-examination, the court learns that D2 had used the wrong pronoun to address her - in the presence of others, who supplied affidavits to this effect - twice in the preceding week, and that AV2 had sent D2 an email (produced to the court) which she'd sent him on the day of the second incident, in which she told him which were the correct pronouns to use for her, and told him why it was important for her as a trans female that he should use the correct pronouns.

The court would (IMO) determine that AV2 was not honest in her perception that D2 had deliberately used the wrong pronoun, and that it was a function of deliberate transphobic abuse on the part of D2, and therefore D2 had indeed committed a crime.

 

[LondonJohn]

I have no idea what you mean with "colorable".

It means "valid" in this context

 

[d4m10n]

I have no idea what you mean with "colorable".

Basically, plausible in a legal context.

 

[TomB]

Well firstly, it's not talking about the criminal offence itself being in the perception of the victim: it's talking instead about the aggravating factor - i.e. where the criminal offence is elevated to a hate crime by being motivated by hostility or prejudice based on (e.g.) a person's transgender identity or perceived transgender identity.

And in law (everywhere), in crimes where things such as racism, transgender prejudice, homophobia form either an element of the crime or an aggravating factor in the crime...... the only feasible standard is the perception of the victim (or the perception of anyone else present). The reason for this is obvious: 1) there cannot ever be a legal definition of what empirically constitutes prejudice and hostility, and what does not; and 2) the only reasonable measure of offence is the perception of the victim or bystander (otherwise the offender could always easily claim "I didn't mean any offence, honestly", and it would be impossible for any court to disprove that claim).

But the other thing to bear in mind is this: if a case such as this came to court, and the charge included the aggravating factor, then the victim (or a bystander) would be required to come to court to testify that his/her perception was that the defendant's behaviour/actions was based on (e.g.) prejudice against transgender people. The victim would be examined by the prosecution, then cross-examined (within careful legal constraints) by the defence counsel. And it would then be for the court to decide whether the victim was telling the truth or not in respect of the alleged perception.

So in no sense does the law imply that if the victim claims (eg) transphobia, this therefore means that there's then an automatic presumption that transphobia was indeed an aggravating factor - rather, it just then becomes one of the things that the court is required to test and rule upon.

This still seems like a poorly written law. It is possible for a victim to honestly, but mistakenly, believe that the motivation to be their membership in a protected group. Perception is not necessarily reality. So the question should not be if the victim was offended, but if the victim reasonably believed that the motivation was their membership in the protected class.

And even then it can get dicey. A racist can get into an argument with his Hispanic neighbor over issues not related to his racism.

 

[LondonJohn]

This still seems like a poorly written law. It is possible for a victim to honestly, but mistakenly, believe that the motivation to be their membership in a protected group. Perception is not necessarily reality. So the question should not be if the victim was offended, but if the victim reasonably believed that the motivation was their membership in the protected class.

And even then it can get dicey. A racist can get into an argument with his Hispanic neighbor over issues not related to his racism.

Absolutely. And his argument can constitute a criminal offence, without anything related to racism. But if, during the course of the argument, he refers to the other man as "you dirty dago/spic/beaner", then it's a very fair bet that a racial abuse aggravation will be added to his criminal charge.


And I should have been more thorough in my explanation of the test for the perception aspect. When assessing perception, the court is allowed to use its own understanding, given the available evidence, of whether a reasonable person in the position of the victim (or bystander) would feasibly stand to perceive a racist/ablist/transphobic/etc element to the offence.

 

[theprestige]

That's only saying that a crime is a hate crime if motivated by hostility or prejudice because someone is or is perceived to be trans.

It does not, in any way, say that misgendering someone is a crime, per se. Misgendering could certainly be part of an assault, and an indication that the victim's trans status was the motivating factor, but that's a different thing.

Your interpretation seems plausible, but it's not clear to me. I think the wording could be interpreted either way. It'd be nice if someone could figure out a way to write it down that was actually unambiguous.

 

[The Atheist]

While we're quibbling about which bathroom to use, things like this are happening: https://www.bbc.com/news/world-asia-54063247

Duterte is a piece of human excrement, but that is bad even by his standards.

 

[Aber]

And what I provided was links to a plenty of evidence showing that there are now good scientific data informing the conclusion that a) gender dysphoria is a genuine condition (as opposed to being the product of a mental disorder), and that therefore b) properly-diagnosed transgender people have the right to be identified as their new gender.

No. You provided links to some scientists claiming various things (which they may have believed before) on the basis of various fairly thin studies. It was not "plenty of evidence".

 

[JihadJane]

People have mistakenly misgendered me in the past, and if it's an honest mistake, I just correct them and move on. Or friends and family who occasionally slip up because they've known me for so long.

But if someone continues to do it, despite me correcting them and asking them not to, then we have a problem. People who do this do so because they don't see or acknowledge us as the gender we are and want to make that point very clear. And it is hateful and prejudicial in a way that it wouldn't be for someone who is cisgender.

The gender you believe you are.

I don't believe it. What gives you the right to impose your beliefs (some would say 'delusions') on others?

 

[cullennz]

That's only saying that a crime is a hate crime if motivated by hostility or prejudice because someone is or is perceived to be trans.

It does not, in any way, say that misgendering someone is a crime, per se. Misgendering could certainly be part of an assault, and an indication that the victim's trans status was the motivating factor, but that's a different thing.

Whilst I agree misgendering someone could probably be extremely insulting and hurt trans people's feelings I personally think she is a bit of a push to call it an assault.