Police broke freedom of speech rules by recording a ‘misgendering’ complaint against JK Rowling as a “hate incident”.
As reported by the Telegraph, India Willoughby has suggested that Northumbria Police formerly logged a “non-crime hate incident” (NCHI) over an online row in which the transgender TV personality was publicly called a “man revelling in his misogynistic performance of what he thinks woman means” by the Harry Potter author.
While Northumbria Police deemed that Rowling had not committed a criminal offence, Willoughby claims to have been told by officers that the incident met “the threshold” to be logged as a NCHI, and that an official record had been made of Rowling’s “horrendous comments, which are putting the trans community in danger”. According to Willoughby, the recording of a NCHI means the police have now officially backed up the claim that Rowling is ‘transphobic’.
However, campaign group Sex Matters has now accused the police of breaching new rules on the reporting and recording of NCHIs, which are where a hate complaint is filed by police, despite no crime being committed.
As FSU General Secretary Toby Young pointed out in the Spectator last year, some 120,000 people had NCHIs recorded against them in England and Wales between 2014 and 2019, including children. Particularly troubling is the fact that they show up in enhanced criminal records checks that candidates are often asked to undertake when applying for certain jobs, such as a teacher.
In March 2023, the then Home Secretary, Suella Braverman, issued a new code of practice for police forces in England and Wales, intended to protect freedom of speech by ensuring NCHIs are no longer recorded simply because someone is merely offended, but only in circumstances where an incident is “clearly motivated by intentional hostility”, and where there is a “real risk of escalation causing significant harm or a criminal offence”.
As the new Code of Practice states: “All efforts should be made [by officers] to avoid a chilling effect on free speech (including, but not limited to, lawful debate, humour, satire and personally held views).”
As per the Court of Appeal ruling in Miller v College of Policing [2021], the Code confirms that a NCHI should only be recorded in cases motivated by intentional hostility to an individual and that pose a “real risk” of escalating into significant harm or a future criminal offence.
Importantly, the Code also clarifies that ‘hurty words’ do not constitute ‘intentional hostility’. “Even where the speech is potentially offensive,” the Code says, “a person has the right to express personally held views in a lawful manner,” and that “this includes the right to engage in legitimate debate on political speech or speech discussing political or social issues where this is likely to be strong differences of opinion.”
As to how this distinction between ‘potentially offensive but lawful’ and ‘intentionally hateful’ speech should be drawn, the Code urges officers to “utilise judgment and common sense”.
Maya Forstater, the executive director of campaign group Sex Matters, won a landmark legal case in 2021, which is referenced in the Code of Practice. The ‘Forstater ruling’ established that the mere expression of “gender-critical” beliefs – i.e., that biological sex is immutable and not to be conflated with gender identity – are protected in law.
“Guidance issued last year makes it clear that a non-crime hate incident should not be recorded for saying that sex matters,” Ms Forstater said. “That guidance reinforced protections for freedom of expression and expressly stated that a non-crime hate incident should not be recorded on the basis of someone being offended.”
She continued: “JK Rowling’s comments clearly don’t meet the threshold for a non-crime hate incident. If they have been recorded as such, Northumbria Police should be required to defend its decision to record a woman speaking in factual terms about a man who has persistently hounded her as a ‘hate incident’.”
Rowling was accused of committing an offence by repeatedly referring to Willoughby as a male and using male pronouns. Willoughby was born male but identifies as female and holds a gender recognition certificate.
The writer expressed the view that Willoughby was “a classic example of the male narcissist who lives in a state of perpetual rage that he can’t compel women to take him at his own valuation”. Ouch.
Rowling has regularly expressed the view that accepting that trans women are literally women and therefore granting biological men unfettered access to female spaces poses a risk to women’s rights and safety. She has also in the past made the point that no law compels people to “pretend to believe that India is a woman” and that “accurately sexing trans-identified men” is not discrimination.
