Twitter, trans rights and the role of the police — an extended look
21 February 2020
The case of R (Miller) v The College of Policing & The Chief Constable of Humberside  EWHC 225 (Admin) is yet another decision arising out of an individual’s use of Twitter to share transphobic, or as they see it “gender critical”, views.
But it would be too narrow to characterise the case as being about trans rights only. At its core, it concerns the role of the police in responding to reports of hate incidents which do not amount to criminal behaviour. As such, the findings of Julian Knowles J have implications that extend beyond trans rights, impacting on how police should respond to reports of racism, antisemitism, Islamophobia, and other forms of discrimination that fall short of criminality. Clearly, the case raises extremely important questions. The Claimant already has permission to appeal to the Court of Appeal and a leapfrog certificate, allowing him to go directly to the Supreme Court to ask for permission to appeal there.
The public debate surrounding trans rights
Before considering the Miller case, it is important to understand some context. Following the government’s proposals to update the Gender Recognition Act 2004, there has been growing hostility towards trans rights within the media and from a minority of voices within society. The proposed reforms would simplify the process by which trans individuals can receive a new birth certificate which reflects their lived identity. Instead of the current approach, which requires submission of a medical report, individuals would make a formal statutory declaration of their gender identity. This is often called “Self ID”.
Some of those criticising the reforms, who self-describe as “gender critical”, argue that the sex assigned to a person at birth is immutable. In practice, this means labelling trans women as men, trans men as women, and non binary people as their sex assigned at birth. Those who take this view often attempt to characterise trans women, in particular, as constituting a threat to women and children. They highlight specific instances of criminal behaviour, or claim there is a cohort of cisgender men (men who are not trans) who would exploit a more liberalised approach to gender in order to harm women. A common example used is the possibility that men will access spaces restricted to women, such as changing rooms or toilets, by falsely claiming to be trans women.
For the trans community and their allies, such as the mainstream queer advocatory group Stonewall, these views are transphobic. This is both because they stereotype trans people as a threat – recalling homophobic slanders of gay people as predators – and, more fundamentally, because they constitute a rejection of trans people’s gender identities. All this takes place in the context of very high rates of abuse targeted at trans people and the high rates of suicide within the community. It is an understatement to say that online discussions of trans rights are often heated and hostile.
The Claimant, Mr Miller, tweets extensively on the issue of trans rights, using the handle @HarrytheOwl. He describes himself as “gender critical”. Choice excerpts from his Twitter feed were reproduced in the judgment of Knowles J, including:
I was assigned Mammal at Birth, but my orientation is Fish. Don’t mis species me. fuckers.
Your breasts are made of silicone/your vagina goes nowhere/And we can tell the difference/Even when you are not there/Your hormones are synthetic/And let’s just cross this bridge/What you have, you stupid man/Is male privilege.
In early 2019 the Claimant’s tweets came to the attention of Mrs B, who describes herself as a “post-operative transgender lady”. She was appalled by what she viewed as “brazen transphobic comments” and reported the matter to the Humberside Police.
The Humberside Police Crime Reporting Team decided to record the incident as a non-criminal hate incident, pursuant to the Hate Crime Operational Guidance 2014 (“HCOG”). A plain clothes constable attended Mr Miller’s work to speak to him, but he was unavailable. The constable left his card and requested Mr Miller call him. In the conversation that resulted, Mr Miller was warned that if he ‘escalated’ matters, the police might take criminal action. No explanation of what escalation meant was given.
Mr Miller lodged a complaint with Humberside police, which was dismissed, as was his appeal from that decision. He then brought a judicial review against both the College of Policing and the Chief Constable of Humberside.
The challenge to the College of Policing policy
Mr Miller’s first challenge focussed on the HCOG policy, which was issued by the College of Policing. In evidence, it was explained that the HCOG was the result of 20 to 30 years of policy development concerning police responses to hate crime and non-criminal hate incidents.
Many of the key features of the policy originate from recommendations in the Macpherson Report of 1999, following the racist murder of Stephen Lawrence. A key recommendation was that the basis for determining whether an incident was a “racist incident” should be whether it was perceived as racist by the victim or another person. The Report also encouraged the reporting of non-criminal incidents. The purpose of this was to enable police to understand tensions in communities and to prevent matters escalating into crimes.
The HCOG provides that:
· A hate incident in relation to transgender people is defined as: “Any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender.”
· Non-criminal hate incidents should be recorded by police unless doing so is the responsibility of another organisation. It may not be appropriate to record an incident where the complaint is maliciously motivated or made by someone with no proper connection to the incident.
· The police should not overreact to reports of non-criminal hate incidents. The police must not act in a way that contravenes the European Convention on Human Rights.
Mr Miller challenged the HCOG on a number of bases, including that it unlawfully interfered with his freedom of speech. Knowles J rejected this argument, for the following reasons:
First, the mere recording of a non-criminal hate incident pursuant to HCOG did not interfere with Mr Miller’s art 10 rights, as it had no real consequences for him. The HCOG did not mandate the police to take any further action beyond making a record. Further, there was no real risk that the recorded hate incident would be disclosed by the police under an Enhanced Criminal Record Check. The legal framework relating to the disclosure of non-conviction data was tightly drawn, and the regime had been found by the courts to be human rights compatible.
Second, even if there was an interference with Mr Miller’s right to freedom of expression, this was ‘prescribed by law’. The HCOG was accessible, as it is available on the College’s website. Further, the HCOG’s effects were foreseeable. Specifically, Knowles J rejected the argument that a perception-based definition of non-criminal hate incidents was too subjective to allow people to foresee the consequences of making a given statement. He held:
Those who exercise their freedom of speech in a way that may come to the attention of the authorities via a complaint will generally have a pretty good idea of their motivation, and whether it is foreseeably going to be interpreted by others as motivated by hostility or prejudice.
Third, Knowles J held that the HCOG pursued the legitimate aim of preventing disorder and crime and protecting the rights and freedoms of others.
Finally, he held that, if there had been an interference with Mr Miller’s rights, this was necessary in a democratic society. The recording of non-criminal hate incidents was rationally connected to the objectives of preventing crime and protecting the rights and freedoms of others. The HCOG set out the least intrusive means possible of pursuing these objectives. In support of this conclusion, Knowles J acknowledged that key elements of the HCOG had been derived, over a number of years, from sources which command great respect and weight, including the Macpherson Report. Finally, the impact on art 10 rights, if there was any, was minimal. This interference was justified, given the importance of protecting vulnerable groups from hate crimes.
Accordingly, Mr Miller failed at all stages of his human rights challenge against the HCOG policy. This analysis seems to me to be correct. It makes sense that monitoring sub-criminal hate incidents enables more effective prevention of hate crimes. Whether the HCOG does not interfere with freedom of speech at all, or only minimally, the policy seems justifiable in light of the importance of preventing hate crimes. There might be some concern about the extent of police powers to monitor (as opposed to just receiving reports from the public), and their long term retention of personal data on a hate incident database, but those are separate debates, distinct from the issues raised under an art 10 analysis in this case.
My concern ahead of Mr Miller’s appeal is that he might succeed in undermining a policy that seeks to protect not just trans people, but all groups who experience discriminatory and hateful behaviour. In particular, I am concerned about the elements of his case that call into question a perception-based approach to identifying hate incidents. The Macpherson Report rightly centred the perception of those who experience racism. This was necessary to counteract the failings of the police to recognise racism in their midst. A move away from a perception-based approach would disempower vulnerable communities and open the door again to their views being ignored and their concerns rationalised away.
The challenge to the application of the policy to Mr Miller
In contrast to his findings concerning the HCOG policy, Knowles J reached a firm conclusion that the actions of Humberside police had unlawfully interfered with Mr Miller’s right to freedom of expression.
While the mere recording of a hate incident did not interfere with his rights, the police had gone further: they had gone to his workplace to speak to him and, in subsequent communications, warned him about the risk of criminal prosecution if matters escalated.
Knowles J began by addressing the context in which Mr Miller was tweeting, noting that there is a “vigorous ongoing debate about trans rights” and that Mr Miller’s tweets were “expressions of opinion on a topic of current controversy”. While Mr Miller’s expression was profane or unsophisticated, his views were shared with a number of respected academics, who held these views for profound socio-philosophical reasons. This led Knowles J to conclude that Mr Miller’s tweets were afforded special protection, as they fell into the category of political speech and debate on questions of public interest. In reaching this conclusion, he rejected the Chief Constable’s argument that Mr Miller’s tweets should be afforded less protection, because they were abusive or attacking toward a group sharing a protected characteristic.
Knowles J found that Mr Miller’s art 10 rights had clearly been interfered with, even though he was not made subject to any formal sanction:
The effect of the police turning up at his place of work because of political opinions must not be underestimated … Warning the Claimant that in unspecified circumstances he might find himself being prosecuted for exercising his right to freedom of expression on Twitter had the capacity to impede and deter him from expressing himself on transgender issues. In other words, the police’s actions, taken as a whole, had a chilling effect on his right to freedom of expression.
Knowles J was willing to assume that the constable who visited Mr Miller was acting within the scope of his common law power to prevent crime, and did so with a legitimate aim, as he believed he was protecting Mrs B’s right not to be offended. Nevertheless, he found that there was no rational basis for the constable believing that Mr Miller was at risk of committing a crime. Accordingly, there was no need to visit his workplace, nor to warn him of the possibility of being prosecuted. When this was set alongside the importance of not restricting legitimate political debate, Mrs B’s upset did not justify the police’s actions. Accordingly, there was a disproportionate and unlawful interference with Mr Miller’s right to freedom of expression.
Again, I have no qualms with Knowles J’s conclusion on these facts. Regardless of the content of a person’s tweets – be they transphobic, racist, antisemitic or Islamophobic – where there is no evidence suggesting their behaviour is likely to escalate into a hate crime, there is no good reason for the police to be knocking on their door. This case certainly raises questions about whether police officers have enough understanding and training to enable then to apply the HCOG appropriately.
However, despite broadly supporting the conclusions reached by Knowles J, I do have some concerns about his discussion of trans identity and rights.
The judiciary and the debate surrounding trans rights
Knowles J appears to have made a genuine effort to address the legal issues at hand while taking no position on the underlying debate concerning trans rights. He expressly states: “I am not concerned with the merits of the transgender debate”. Nevertheless, he has not been successful in this regard. A reader who is sympathetic to the trans rights cause can, in my view quite justifiably, come away from the judgment with the impression that Knowles J has taken a side in the debate, whether he intended to or not. This is particularly apparent in two passages. The first:
the nature of the debate is such that even the use of words such as ‘men’ and ‘women’ is difficult. Where those words, or related words, are used in this judgment, I am referring to individuals whose biological sex is as determined by their chromosomes, irrespective of the gender with which they identify. This use of language is not intended in any way to diminish the views and experiences of those who identify as female notwithstanding that their biological sex is male (and vice versa), or to call their rights into question.
While I have sympathy with the difficulty faced by Knowles J in language usage in this context, his attempt at neutrality in his use of “men” and “women” is not a success. First, he has clearly adopted one side’s definition of the contested terms: Knowles J uses the term “women” in a way that excludes trans women form that category. Second, the concept of “biological sex” is heavily disputed where it is used, as Knowles J uses it, to assert that trans women are in fact male in terms of their biological sex. By adopting a definition of “women” based on “biological sex”, and by defining biological sex in the way he has, Knowles J has ceded his claim to neutrality.
As to the second passage, much later in the judgment Knowles J sets out a portion of the witness statement of academic, Professor Stock:
Where an utterance is perceived to be racist, it usually contains some identifiable pejorative element which explains that perception, so that it is not reasonably interpretable merely as straightforward, non-evaluative description. For instance, racist utterances might involve: a slur, such as the N-word, conventionally expressing contempt; mocking epithets designed to ridicule; or other statements expressing personal disapproval … [Expressions such as ‘Trans women aren’t women’] contain no pejorative, expressive, mocking or disapproving elements. In the mouths of many people, these utterances are intended to convey, and be heard as simple descriptions of observable facts; that is they are intended to be fact-stating and non-evaluative utterances, along the lines of ‘water boils at 100 degrees’ or ‘pillar boxes in the UK are red’.
Knowles J goes on to adopt this approach:
Although I do not need to decide the point, I entertain considerable doubt whether the Claimant’s tweets were properly recordable under HCOG at all. It seems to me to be arguable that the tweets (or at least some of them) did not disclose hostility or prejudice to the transgender community and so did not come within the definition of a non-crime hate incident. HCOG rightly notes at [1.2.2] that ‘hate implies a high degree of animosity…’. Professor Stock has explained that expressions which are often described as transphobic are not in fact so, or at least necessarily so (unlike racist language, which is always hateful and offensive). I acknowledge the importance of perception-based reporting for all of the reasons set out earlier and I am prepared to accept that Mrs B had the perception that the tweets demonstrated hostility or prejudice to the transgender community. But I would question whether that conclusion was a rational one in relation to at least some of them.
There was no evidence before Knowles J from an academic who is trans and/or takes a trans rights perspective. Professor Stock’s viewpoint is clearly controversial. Without pretending to be an academic in this field myself, an obvious critique is that the analogy from racist statements to transphobic ones rests on a conception of racism which is itself highly contested. People might agree that the overt examples offered by Professor Stock are racist; they might disagree about whether it is racist to comment on a black woman’s hair or to describe a black sports star as ‘physically gifted’. A person might utter what they consider to be a straightforwardly factual statement, like ‘water boils at 100 degrees’, which would be considered by others to be racist: ‘black people are [insert descriptor here].’
What Knowles J doesn’t seem to realise is that it is part of the debate whether certain viewpoints are inescapably transphobic (or racist). So, when he concludes
Professor Stock’s evidence shows that some involved in the debate are readily willing to label those with different viewpoints as ‘transphobic’ or displaying ‘hatred’ when they are not
he is taking a side in the very debate he said he was going to avoid. Furthermore, his conclusions are at odds with his acknowledgment of the importance of perception-based reporting, as emphasised in the Macpherson Report. He goes so far as to question the rationality of Mrs B’s perception of Mr Miller’s tweets. This is striking, particularly when contrasted with Knowles J’s description of Mr Miller as “intelligent and highly educated”. The questioning of Mrs B’s rationality arguably plays into sexist and transphobic tropes about who is and isn’t rational. Having stated that “I do not need to decide the point”, Knowles J should certainly have left it there.
The real difficulty is this: it is arguably impossible to apply the human rights framework in this context without joining the fray. This is apparent from aspects of Knowles J’s judgment which were not needless obiter. In particular, in reaching the conclusion that the police had unlawfully interfered with Mr Miller’s art 10 rights, Knowles J expressly concluded that the utterances in question were political speech, as opposed to speech that was abusive or attacking toward persons with a protected characteristic. This in turn impacted the balancing exercise, when he determined whether the interference with Mr Miller’s rights was justified in light of the legitimate objectives pursued by the police. As I’ve sought to argue above, deciding to characterise this speech as political, on the one hand, or as abusive, on the other, is to make substantive commitments within the debate surrounding trans identity and rights. More thought needs to be given as to how to treat speech which is both political and abusive.
It is highly likely that more cases will come before the courts concerning transgender rights (see this upcoming challenge to a County Council’s transgender policy). Nor is it the first time that courts have run into trouble handling the issue (consider, for example, the troubling case of Re J (A Minor)  EWHC 2430 (Fam)). It’s time for the judiciary to make full use of the Equal Treatment Bench Book, a resource already available to them which dedicates a chapter to transgender people and their treatment by the courts. So too, judges should take care not to say more than they need to when deciding a case. The decision in Miller is a good example of this. The bare bones of Knowles J’s judgment are sound. Some of the additional observations, less so.
Alice Irving is a pupil barrister at 1 Crown Office Row. She tweets at @AliceLIrving.
She would like to thank Tara Hewitt for providing content, comments and edits. Tara is a Director and Leadership & Inclusion Consultant at Purple Infusion Ltd. She also co-founded the Trans Equality Legal Initiative. She tweets at @tara_hewitt. Also check out: @purple_infusion @UKTELI.