Oral evidence: Transgender Equality Inquiry,HC 390Tuesday 8 September 2015

Oral evidence, 8 September 2015.

Witnesses

Helen Belcher, Director, Trans Media Watch, Professor Neil Chakraborti, Director, The Leicester Centre for Hate Studies, and Chief Constable Jane Sawyers, National Policing Lead on Transgender for Equality, Diversity and Human Rights Co‑ordination Committee of the National Police Chiefs’ Council, gave evidence.

Chair

Good morning. Can I apologise for the fact we are starting the second session a little late? Thank you so much for being with us today for the second half of our first public session of the newly formed Select Committee. We have a number of colleagues who have got questions for you as we develop our thoughts in this area. Can I start by thanking you for taking the time out of what I know are very hectic diaries and for all the preparation I know you will have had to have done as well? A huge thank from every Member of the Committee. Can I start by asking you to introduce yourself and your organisation and then we will move on to a series of questions from colleagues on the Committee? Thank you.

Helen Belcher

Thank you, Chair. I am Helen Belcher; I am one of the founders and directors of Trans Media Watch. We are a charity that works with the UK’s media to try and get them to report intersex and trans issues with accuracy, dignity and respect. I have a number of other roles as well, but that is the one you are interested in today.

Professor Chakraborti

Hello. I am Professor Neil Chakraborti; I am a professor of criminology at the University of Leicester and director of the Leicester Centre for Hate Studies.

Jane Sawyers

Hello. My name is Jane Sawyers. I am the Chief Constable of Staffordshire Police, but policing nationally has 12 committees around various areas that co‑ordinate policing activity nationally. One of those committees is the Equality, Diversity and Human Rights Committee, which has a number of sub-committees, one of which is the LGB&T sub-committee and I am responsible for the LGB&T sub-committee nationally.

Chair

Thank you. I will invite Tulip to start our questioning and, if you do not mind, we have found it easier just to use first names if that is okay.

Tulip Siddiq

Thanks very much for coming in. I am just interested in what each of you think is the definition of transphobia. I do not know if Helen wants to start.

Helen Belcher

For me, transphobia is the irrational hatred or fear of trans people in the widest sense. My personal view is an awful lot of what is labelled as “transphobia” is more a lazy or institutionalised cissexism. Cis is the opposite of trans, so cissexism is kind of an unthinking adherence to a binary-gender model where your gender is immutable; it does not change.

Professor Chakraborti

I would have very similar thoughts to Helen on this. I would describe transphobia as an irrational fear, hatred or revulsion towards people who do not conform with society’s gender expectations. That would include people who describe themselves as transgender, transsexual, transvestites or cross-dressers. It is that irrational fear part that I think is crucial, because that is what I think the phobia suffix describes: that irrational fear or hatred.

Jane Sawyers

I am similar again, but quite simply put for me: a fear or dislike directed at people who are trans.

Mims Davies

This is to Helen in terms of how you are monitoring press coverage. Can you tell me about the patterns that you have found and how the coverage has perhaps, hopefully positively, changed over time and perhaps not so, and areas that we perhaps need to be focusing on and working with?

Helen Belcher

It depends rather on how far back you want to go, but if I start at Leveson and work on from there. At Leveson, in the evidence that I gave on behalf of the charity to the inquiry, we presented three main problem tropes, as it were, that the press use to represent trans stories. Lord Justice Leveson added a fourth one, which was outing of trans people. We then had cause to make a second submission because almost immediately the press had another couple of goes in problematic areas. The history has been that there was the huge outrage over, first, the outing and then the sad death of Lucy Meadows, the primary trans teacher. That was the point where I think the press suddenly thought, “Oh, hold on, there is actual effect on real people here”. We then had a quietish year until Kelly Maloney was outed last August. From there we have had a series of supportive outings in the press’s terms, despite what Lord Justice Leveson wrote in his report, until Caitlyn Jenner revealed herself to the world at large. That is the point where press coverage has started to try and look for new angles. We have had a very large concentration on “This person is trans”, “This person is transitioning”—so the process of realigning your gender from one to another. It is only relatively recently that the press is starting to broaden that circuit, but there are very few pieces around things that you heard just now, in terms of healthcare and access to healthcare, there are very few discussion pieces around discrimination in employment, education issues and so on. There has been a positive shift. I would like to hope that the outings are probably near an end, because there is not really anywhere else they can go with them. I would like to think that the press is starting to take an interest in the issues that actually affect trans lives. We are noticing a little bit more coverage of intersex and non-binary issues, but our concern there is very much that it is on the same sort of lines as we have seen trans issues covered, which is: “Gosh, this person is not binary”, or, “This person is intersex”. The concern we always had was that the press were using the trans communities as a “Thank goodness we are not like them” kind of model and that once trans people became a little more assimilated they would move on and pick on other marginalised and vulnerable groups, so we really want trans people to be the last of those exemplars in that area.

Mims Davies

So it is almost like a shock and awe tactic of, “Wow, this is so weird” or “so wonderful” or “so remarkable” that people are going to take copies off the shelves, rather than think about the emotional and physical problems that people are going through?

Helen Belcher

The media in general has had a very strong emphasis on the transition narrative. When I do talks about this I talk about the butterfly syndrome, so you have the chrysalis and a beautiful butterfly emerges. The same sort of thing happens very often in television documentaries, where you have somebody wheeled into an operating theatre and a beautiful woman comes out at the other end. It is a very strong dramatic narrative, but real life is not like that and you will have heard bits this morning about how it is a process. There is a process of realisation; there is a process of self-acceptance; there is a process of coming out to those around you and interacting with the world, and it takes time. It is not an immediate switch. That is where a number of trans people really do object to terms like “sex swap” or “sex change”, because it indicates an immediate or whimsical decision. I cannot say that nobody has ever done it on a whim, but it would be incredibly unlikely that people do this and make this kind of life-changing decision on that basis.

Mims Davies

Moving forward, how effective do you feel the regulation of the press is in dealing with this kind of journalism around transphobic portrayals of people, rather having an understanding of the basis of the process that people are going through?

Helen Belcher

We have had conversations with the old Press Complaints Commission and with IPSO. The issues we have I think are twofold. We had a Labour Party Parliamentary candidate in the general election just gone, Emily Brothers, who revealed that she was trans and then you had the problematic piece in The Sun, which said something like: “The problem is, being blind, how did she know she was trans?” or “How did she know she was the wrong sex?”. She dealt with part of that in good humour, saying, “Well, presumably when Rod Liddle turns the light off he does not know that he is a man anymore”, but that was only part of the problem. After negotiations broke down with The Sun, we took the rare step of taking the complaint to IPSO. IPSO found that it was a clear breach of Clause 12, discrimination, but we had raised a number of others issues, including the victimisation of the complainant because they had published a piece that they claimed was an apology in January that ended up having another go at Emily. We raised this with IPSO and to date IPSO has just ignored it; it just has not engaged with that issue at all. That is problematic because we know that a number of trans people, as people in general, will not take forward complaints because they want the story to die and so a lot goes unchallenged. Anything which then is seen to be further victimising or further unnecessary exposure will act as a major deterrent. The fact that IPSO has not even engaged on this issue is a major deterrent to people raising complaints. The other issue is around the Editors’ Code, in that the problematic pieces that we see now tend to be couched against a very abusive or inflammatory language against groups of trans people. Rod Liddle again wrote a piece in the Sunday Times in July in which he did not name a specific individual, so no individual could complain and there was no route to redress. We have noticed now that the last few problematic articles which use that kind of language have all used that approach and that is a loophole that we really would have hoped IPSO—if they really were an independent regulator—would have taken steps to correct but we see no signs of that at all.

Mims Davies

Finally, again to Helen, on the issues around portraying trans people in the broadcast media: how effective has Ofcom been as a regulator in terms of portraying the broader issues and the positives around this?

Helen Belcher

To be honest, we have not had a lot to do with Ofcom after our meeting with them in 2010. We have had more to do with the BBC and raising complaints with the BBC and there we have a problem because the standard BBC reply is, “Thank you very much for your comments. We will forward them on to our production team” and it ends there, so you never really hear anything back With independent broadcasters, there seems to be a series of little issues, none of which are necessarily important enough to take on their own merits to a complaints process, but overall generate a kind of feel around trans people. There is not actually a huge amount of coverage around trans people on the broadcast media. I go back to the BBC again: the BBC does tend to like to manufacture debates, and when trans people are involved in those debates, the debate invariably moves to around the validation of the veracity of a trans identity and that then creates problems. So Woman’s Hour is a particular issue where every revelation that somebody is trans tends to get met with complete incomprehension by the presenting team, some more than others. In terms of regulation as a whole, in line with what you heard about health actually, there is an awful lot of ignorance; the base level of understanding is very low.

Mims Davies

Okay, that is very helpful, thank you. That is all from me.

Mrs Flick Drummond

I have just been reading that, it seems, transphobic hate crime is not actually registered as a crime as such. Is that correct? What I want to know is, Neil, how would you define transphobic crime? Then I would like to ask a question to the police about how they deal with it.

Professor Chakraborti

There are various definitions presented around different strands of hate crime. One fairly recent definition and one which carries a great deal of weight within the academic and practitioner communities is a definition presented by the College of Policing in 2014. They presented some updated hate crime guidance that refreshes the previous guidance from ACPO and, as such, carries a great deal of weight within the criminal justice system itself. That definition sees transphobic hate crime as any criminal offence that is perceived by the victim or any other person to be motivated by a hostility or prejudice towards a person who is transgender or perceived to be transgender. It is quite a mouthful as a definition, but the key point is that there is no reference to hate within that definition. Hate crimes are not all about hate; they do not need to be motivated by hate. Hostility or prejudice are the key facts. Equally, the perception of the victim or the witness, or a family member is key. It is not up to police officer discretion when it comes to recording a hate incident or a hate crime; it is the perception of the victim that is key. There is a definition of transphobic hate crime that is widely used within the criminal justice system and I would say that is it.

Mrs Flick Drummond

Do you find that you have been able to use it effectively in the police?

Jane Sawyers

Yes, that absolutely is the definition that we work to. If I could just do some figures for the moment—and I will not do much of this—of 44,500 hate crimes recorded in the National Crime Statistics for 2013-14, about 1% of those, 555, were transphobic hate crimes, so there is a transphobic hate crime.

Mrs Flick Drummond

What are you doing to help the police understand the issues about trans people and deal with them sympathetically? What training is there?

Jane Sawyers

Yes, training actually is the key. There is some very recent work done in Nottingham, which interviews police officers and supports the work that my portfolio has been doing around officers and training. Officers do not like training in practical issues; officers and staff actually like training on hate crimes using online packages. The experience that people are saying is that actually they have a diverse friendship group, a diverse work group, but most people do not know anybody who is trans and have not dealt with anybody who is trans. Therefore, talking to members of the trans community, being able to hear life experiences or something as simple as understanding what language is correct to use actually helps officers. There are pockets of that around the country happening in various forces. What there is not at the moment—and my portfolio is working with the College of Policing on this—is national transphobic hate crime training.

Mrs Flick Drummond

And you would think that that was essential?

Jane Sawyers

Yes, absolutely.

Mrs Flick Drummond

Are there any plans to put it in place?

Jane Sawyers

Yes. There are things in the meantime that we want to do. Since I took over the portfolio in November last year, I have done a lot of research around the charitable sector organisations and other organisations that work in relation to all of LGB&T. A lot of them do actually have training packages that policing could use while a policing package is developed nationally and we have not done that at the moment. Organisations like GIRES, Galop and Gendered Intelligence all have training packages that the police could access and the intention is to do exactly that.

Mrs Flick Drummond

I had an incident actually in my surgery last week where I think the police sort of wrapped it up with a mental health problem as well, which may or may not be the case. I think that was the perception from the person who was trying to deal with the police; they were not really listening to them on the other grounds that were a trans person. I think training needs to be fast.

Professor Chakraborti

We deliver training to practitioners at the Leicester Centre for Hate Studies, so we deliver training to police forces, to probation services, to the Crown Prosecution Services and to local authorities. One of the challenges that those bodies have when they come along to training is that they really want training and they enjoy the training, but budgetary pressures make getting the training hard. Exactly as Jane says, it is about identifying ways to draw on the expertise of different bodies within the public and third sectors and try and roll that out as widely as possible. I think some forces are better than others when it comes to that, but it is a real challenge.

Helen Belcher

I have just some very quick comments. A comment came out in the previous panel about using trans people to give that training. That is asking an awful lot of a few hundred trans people if you are expecting them to train the entire NHS and now the entire police force, and then we are trying to work on the entire media industry as well. With the best will in the world, that is not going to happen, so there needs to be different ways to do that. Second, we do get people coming to us having had connection with the police in some way, shape or form. Some are very positive; some are quite negative. The issue with the negative ones is they tend to get a lot of traction and the good experiences do not. The negative ones tend to all rely on the fact that the police involved expect the trans person to be easily identifiable as trans and that is not always the case.

Mrs Flick Drummond

No, in this case it was not. Thank you.

Jess Phillips

I was just interested when you started to quote the figures from conviction rate statistics that you might have, and how much of this clear increase in reporting, potentially, has actually led to any action. I know that in other areas of hate crime it is always difficult, but I was interested when you said that it is the view of the victim and not the discretion of the police officer. With the greatest will in the world, that has just never, ever been my experience in cases. For police officers there used to be awful lot of form filling in lots of different areas of crime, especially inter-personal crime, and now these days because of the lack of resources there is much more discretion placed on the individual police officer. I just wondered what the conviction rates were and what your comments were on that.

Professor Chakraborti

If I can make an initial comment and then Jane will presumably be able to talk about conviction rates. When we are looking at prevalence of hate crime—any strand of hate crime, not just transphobic—it is very difficult to quantify. Police‑recorded figures are very useful in one respect because they tell us how many people are reporting hate crimes, but they do not give us an accurate measure of how much hate crime is taking place because the vast majority of victims do not engage with the criminal justice system; they do not report. We are consistently urging people to report, but those pleas often fall on deaf ears for a variety of reasons. I would be happy to talk about barriers to reporting if you would like. I think it is very important, first, to just be really clear on official figures; we can quite happily trot out official figures, but it will never give you an accurate gauge of how much hate crime is taking place.

Jess Phillips

I would wager hardly any of those ended in any sort of conviction. That would be my guess.

Professor Chakraborti

The conviction rate is roughly around 2-3%. That is across the board, not just for trans.

Chair

Can we just be really clear before we move on to Cat’s line of questioning? Jane particularly, from a policing angle, do you think the law actually protects all trans people?

Jane Sawyers

It is always very difficult for police officers to talk about the law because we enforce it, obviously, not make it.

Chair

I often find that you therefore have a much better point of view.

Jane Sawyers

Then you have given me permission to go ahead. I think Members will be aware that the Law Commission made some recommendations in relation to a wholesale review by the Government of legislation in relation to hate crime. I have to say as a portfolio holder I absolutely support that. There are all sorts of laws that have arisen and come into being, for good reasons, because of various incidents, but they do not give parity across the five protected characteristics. For instance, aggravated offences under the Crime and Disorder Act are only race and religiously-aggravated offences. Stirring up hatred offences, under the Public Order Act, are only race, religion and sexual orientation. So if you are either transgender or disabled, how on earth can you ever believe that the law is fair in relation to you? So, yes, my clear response to that would be that policing would support the Law Commission’s recommendations into the review of hate crime.

Cat Smith

Neil, I would be really interested if you could also continue to answer that question around legal protection from hate crime and the sentencing provisions that are available.

Professor Chakraborti

Up until recently there was considerable disparity the various protected characteristics. Things started to change in 2012; that is when the Criminal Justice Act 2003 was amended to allow enhanced sentences to be imposed in cases involving hostility on the basis of transgender identity. At one level, that helped to introduce a degree of parity, but as Jane has rightly said, there is disparity in two distinct areas. One, there is no provision for aggravated offences when it comes to transphobic incidents, so they are not separate standalone aggravated offences as we have with racially or religiously-aggravated offences, so there is an anomaly there. There is also an anomaly when it comes to the stirring up of hatred. At the moment, there is no criminal offence to stir up hatred on the grounds of transphobic hostility. Again, as Jane has said, there was an opportunity to do something about this last year with the Law Commission’s review of our current suite of hate crime legislation and, in their wisdom, they decided against extending the current suite of legislation. In their justification, they seemed to agree in principle with the idea of creating aggravated offences, but recommended a further Government review, so it is kind of parking the issue a little, if I can be frank. When it comes to the stirring up provisions I think they also made reference to the fact that there was not a practical need for such legislation and I am not sure that is the case. What Helen has talked about already and will continue to talk about, I think will reinforce the need for some kind of legislation to cover the stirring up of hatred, It seems a little bit puzzling that we have disparity. It is great that we do have some legislation, but I think it was a missed opportunity to agree a degree of parity that would send out that really important message of equality across all strands.

Helen Belcher

We put in a submission to the Law Commission on the hate crime aspect. I was invited to go and talk at one of their symposiums and we argued for full parity, as Neil has just explained, and we were quite disappointed, actually, that the Law Commission decided on the basis of so few convictions that parity would not achieve anything. It seemed a very odd basis on which to make that decision. The other two things to bring up here are that hate crimes, stirring up hate, might be applied in some of the press pieces that I referred to earlier. Also, there are those trans people who have not transitioned, so they are part-time trans people; they live one gender most of the time for work, but in another gender for events or particular things. A lot of those people will find it very difficult to report hate crime on a transphobic incident, because for a lot of them you may find that they keep it a secret from their spouses. The moment they get the criminal justice system involved suddenly all of that secret is out and huge emotional upheaval and turmoil could then ensue. The vast majority of trans people, like complaining to the press regulator or to Ofcom, simply do not want that exposure so they will not report it. Until we get rid of the stigma around trans, which again you talked about earlier, it is going to be very difficult to increase reporting rates. Not impossible, but difficult.

Cat Smith

How would you say that confidence is in the trans community in the criminal justice system being able to deliver justice when they have been victims of hate crime?

Helen Belcher

I do not have anything to base this on other than my personal hunch, but I would suspect not high generally. I think that people would feel there is a lack of understanding occasionally within any police that they encounter, very often within the lawyers that they encounter and the legal procedures that they then encounter. There are three hurdles of understanding to go through and I think that trans people in general do not tend to believe that there is a very high level of understanding anywhere, so you would not necessarily expect in those three areas.

Professor Chakraborti

Can I come in there because I led some research on this earlier this year? The Equality and Human Rights Commission invited me to examine barriers to reporting amongst LGB&T victims of hate crime. One of the issues we really drilled into was levels of confidence in the criminal justice system and what those barriers to reporting might be, and it will not surprise anybody to know that levels of hostility were very high. There were a great number of hate crimes experienced by our sample, but very few of those cases were reported. When we drilled down and asked people, “What are the issues?”, as Helen has already said, there were very low levels of confidence in the criminal justice system. Primarily, it was not because of any deep-rooted sense of resentment towards the police which might exist amongst other sections of minority communities, but rather they just find the whole process time-consuming, draining and confusing. They felt that frontline practitioners often overlooked the everyday challenges of what it is like to be trans and how much courage and resilience you need to report your experiences to a third party. Many of the victims we spoke to just normalised their everyday victimisation; they thought, “Do you know what? This is just something I have to put up with. What is the point of telling anybody because they are not going to do anything about it?”. Some people feared reporting because they did not think they would be taken seriously by the police and they thought that actually might reinforce their sense of victimisation, so it might be secondary victimisation in a way. Many just wanted to see more rapport, more efforts made, not just by the police but by the criminal justice system more widely to engage with the trans community, not through so-called community leaders or in a tokenistic fashion, but actually to really get out there and to engage and to be at one with the trans community. They felt that just was not happening at all. There were a whole host of other factors they cited but they were probably primary barriers.

Cat Smith

Neil, did any of your research go into the different areas of the UK in that we obviously have different justice systems in different parts of the UK?

Professor Chakraborti

I have just looked at England and Wales. I have not looked at other jurisdictions I am afraid, although the research body of evidence that exists draws similar conclusions in Scotland as well.

Chair

Some of the evidence we have had would suggest that non-binary people particularly might have some concerns about the way the law is currently framed. What would your view be on that, in terms of protection?

Professor Chakraborti

I would make two points. The first is that actually when we speak to members of the trans community, a lot of them are not aware of the laws that exist. They are not actually aware of the term “hate crime” or they do not have that understanding of hate crime. Many do, but many do not. Before we assume that the only solutions are legal remedies, I think we have to acknowledge the fact that many people just are not comfortable with the idea of coming into contact with the legal system. There is that side of things, but those who are aware of the laws and who want to talk about the laws find that disparity that we have just talked about quite disturbing. The problem with the laws as they stand is that they kind of pit minority groups against one another unwittingly, and that is not a great place to be. It creates hierarchies of victims, so that is a bit problematic.

Chair

Do you think there is a particular provision that needs to be made for non-binary people—people who are choosing not to define themselves by a particular gender? Do you think there is a particular issue there or not?

Professor Chakraborti

No, my particular issues would relate to the laws that we spoke about before—creating an offence of stirring up hatred.

Chair

Which would apply to everybody?

Professor Chakraborti

At the moment it does not apply to trans people, so if I could wave a magic wand and introduce one law that would be it.

Helen Belcher

There is an issue around what is called intersectionality because trans people are not just trans in isolation. You might have trans women of colour or Muslim trans women, and so if they are subject to a hate crime and you start apportioning out, “Is it a transphobic hate crime or is it motivated by religion?”, which box are you going to tick? There are issues if you start segregating reason.

Chair

Just before we go on to the final round of questioning, another thing that come out some of the evidence I read on the legal side and I am taking the opportunity to pose it to you, is access to single-sex spaces. I think a number of us on the Committee have worked to try and develop an approach where you might be able to have a space which is simply for a woman to be in. How does that fit within this context of transgender people, people who choose not to define themselves by gender? How do you think we tackle that? Do we need to do something within the law to be able to cope with that? I am not sure if I articulated that very clearly, but do you get where I am going?

Professor Chakraborti

Yes I do. It might be one for Helen because within the context of hate crime I am not so sure it is directly relevant.

Chair

I am just thinking more of legal protection. Is there anything there that we need to consider as a Committee? I am not just thinking particularly of hate crime.

Helen Belcher

I think the issues are more in terms of what is the motivation behind the crime, rather than how to categorise it. Trans people, intersex people and non‑binary people need safe spaces and will identify and the issues then become whether somebody is, in the widest sense of the term, policing the entrance to that safe space. If you have, say, a trans woman who does not necessarily meet what society expects a woman to look like suddenly being barred entry because actually she is a man, that is very harmful personally. But then I do recognise that there is the kind of flipside to how you then prevent people you do not want entering that space. I do not know if there is an easy answer to that one.

Chair

And it may be a question for a different time. Moving on to our final line of questioning, it is really from me. I have actually done quite a lot of work on making revenge pornography a crime, which it is now. One of the things that came out of those investigations was that this is not a problem simply for women; it actually quite a large problem in the LGBT area as well. Helen, how do you feel things are going in terms of the online world and particularly social media in terms of transphobic hate speech? Maybe you might want to comment more generally because I know you have obviously got quite an experience in this area.

Helen Belcher

Trans Media Watch has been helping two specific projects: one on hate crime and one on preventing online abuse. The aim of the online abuse project is to try and empower to people to know how to prevent it in the first place but then how to report it and action it. There are some very interesting discussions around online media and the internet and they kind of boil down to whether you deem social media, such as Twitter or Facebook, a broadcast mechanism or a conversation between people. Which side of the fence you drop will kind of determine how you want to monitor and regulate those areas. If it is a broadcast medium then different rules properly apply than if you consider it as a conversation between a group of people. Twitter had an example a few months ago where they promoted a Tweet that encouraged trans people to kill themselves and quite how that got past Twitter’s reasonability check I do not know. Since that point they seem to be a little more cautious. I am not yet clear how effective reporting mechanisms are within Twitter to report abusive or hate speech and how quickly that can be dealt with. In Facebook, we found that it is hard to get pages which promote particular hate views or harmful images taken down. It can be very difficult to engage with these companies because they do not have a very big UK presence and their culture is very much biased towards the US and they have a whole raft of different sensitivities. Facebook also has this real names policy, whereby an account can be challenged and then you have to verify that the name of the account is your real name. For trans people that can cause particular problems, say, at an early stage in transition or, if they are not full time, they may have a Facebook account in their other-gendered persona. We note that the German government is currently challenging Facebook on its real names policy and we also know that Facebook has problems with Gaelic names, for example, which affects people in places in Scotland and Wales. Also bear in mind that a lot people will read the press pieces that we talked about earlier online and it can be very difficult to get those taken down. That raises issues for people in, say, employment checks or checks for accommodation. If somebody Googles and suddenly there is a whole raft of very personal, possibly inaccurate data, that can adversely influence a decision to let a flat or employ somebody. Especially if the complaints process takes a period of time as well, where those pieces are then left unchallenged and unchecked until the regulation has had time to do its job, which is typically long after the problematic interest has subsided. In general, we feel that there are ongoing issues with a cross-social media, in places like YouTube as well, where there are problems around victimisation of complainants. There is a very much hands-off approach to editorial responsibility or publication responsibility, so they are aggregating that to the person who has posted the offending piece. Again, the common message I have said throughout is that the understanding of trans and intersex issues is very low and sadly is lower within American-based companies than it tends to be here. But even in the UK, where you have subsidiaries of a US office, they tend to be driven very much by US policy. So even though they have a local office which should be a little more sensitive and accountable to local needs and attitudes, sometimes that is not the case.

Chair

Neil, what is illegal offline is illegal online as well. Why is this not working in the way that it should?

Professor Chakraborti

It is a problem. There are so many challenges within online hate speech in terms of the policing of it and the regulation, but one of the big challenges from a legal perspective is balancing freedom of expression against freedom from hatred. Where do we draw the line? Do we criminalise—?

Chair

So under certain circumstances it is okay?

Professor Chakraborti

It depends where we draw the line. At the moment, when it comes to criminalising hate speech, with most strands of hate speech it is not unlawful to insult or to abuse a particular group. Where the line is drawn is where those words or that behaviour is threatening. It is different when it comes to racial hatred, but across all the other strands that is where the line is drawn. To insult or abuse might be unpalatable and undesirable, but it is not illegal. When it comes to transphobic hate speech, there is no law and that is what I find quite frustrating—why we do not have similar provisions to the provisions governing the incitement of hatred on the grounds of sexual orientation, for example, or religious hatred where we criminalise threatening words or behaviour. It is a high burden of proof. There not only needs to be threatening words or behaviour, but the prosecution need to prove that the perpetrator intended to stir up hatred. It is a high burden of proof and quite difficult to find evidence all the time, but nonetheless those laws exist and they send out a powerful symbolic message to those particular communities. I do not see why the same could not apply when it comes to transphobic hate speech.

Chair

You are an expert in this area. Why do you think the legislation was drafted in this way? It is anomalous?

Professor Chakraborti

Hate crime legislation has been drafted in a very piecemeal fashion. If we could start again I am sure we would do things very differently. It is almost as if we waited for a tragic event to occur before we prioritised something, whether it is the Lawrence case and the criminalisation of racial hatred, the Jody Dobrowski case where we start to then prioritise homophobic hate crime, and so on and so forth. As a result, the creation of law has followed tragedy; it has followed campaigning and advocacy, rather than people actually sitting back and working out a more systematic way of formulating law‑making in this fashion. The end result is that we have piecemeal laws and we do not have parity across the strands. What we do have is a set of legal provisions that is far better than in most countries, to be honest. We have laws and we have protection in this country. That is very, very important, but I am sure that if we could start again we would use different terminology and we would have different sets of legal provisions.

Chair

Jane, do you want to add anything to that?

Jane Sawyers

Just specifically in relation to online crime. I suppose, as with every other crime, the introduction of online and what it brings with it does not just cross force boundaries and national boundaries; it is international boundaries. Hate crimes can be committed on the internet; there is no question about that. If credible threats are made and there is a hate element, hate crimes can be committed, but if they are committed by somebody who is thousands and thousands of miles away, it is really difficult to start to police those things happening. I am with Helen, I have to say, that some of the providers of the internet services are the ones that need to take some action in relation to who is allowed to use them.

Helen Belcher

A line of defence very often is comedy. If we encounter something that is hateful, the response is almost always, “Oh, it was just a laugh. It was a bit of a joke; we did not mean it seriously”. Neil has talked about the barrier of evidence; well, that would be the defence. How do you then counter that? How do you then prove a malicious intent when they are saying it was only a joke?

Professor Chakraborti

That stems back to when the incitement to religious hatred provisions were drafted. Comedians like Rowan Atkinson were very strong on that campaign that it should not be a criminal offence to ridicule a religious belief. It should be when it comes to an ethnic identity, but when it comes to religion that should not be a criminal offence. That threshold is really applied to sexual orientation.

Helen Belcher

It is a very difficult boundary and we try very hard not to act as censors, not that we have any power to act as censors. We try very hard to point out the issues of particular use of language and particular themes and how that shapes perceptions and how that can misshape perceptions as well. Comedy is probably the hardest area to draw those boundaries and make those distinctions in. There is an example in The Last Leg on Channel 4 a couple of weeks ago. They had a session on Caitlyn Jenner and the Halloween costume that has been presented, supposedly again, as a kind of joke. The three guys were kind of struggling to work out why this was problematic and it took a Canadian comedienne to nail the issue, in that it is making trans people the target of humour rather than laughing with trans people. That mirrors the conversation I actually had with the head of comedy at Channel 4 a couple of years ago, where I said, “Why are you still trying to laugh at trans people? Why are you not engaging and laughing with trans people?” and that is what Boy Meets Girl on the BBC will hopefully be trying to do. But then last week again on The Last Leg, you had the comedian start to skirt around a trans joke until Adam Hill suddenly realised, “This is where it is going; this is not going to be good” and very quickly steered the conversation away. So it is the kind of self-censorship, because we all self-censor. There are a whole bunch of things that if I were to sit here and say I would be carted off. The notion of a completely free speech is completely hypothetical and does not exist in reality. We all talk within pre-determined societal arrangements and comedy obviously is always trying to push those boundaries and that is where the problems can start to occur. The point I was making earlier was that comedy is used as a defence, when actually there was no comedic intent, and quite how you prove the lack of comedic intent is also problematic.

Chair

Have colleagues got any further questions? That was an incredibly helpful session. Thank you for bringing your expertise into our discussions and if there is anything else you feel you want to contribute after the session has ended, please do drop us some further notes. I think we have got some evidence from you already. Thank you very much for your time. It is really, really helpful in our deliberations. Thank you. Oral evidence: Transgender Equality Inquiry, HC 390 31