Accusations of “misgendering” in England raise questions over free speech, legal protections

Several recent incidents have joined the citizenry of England in a debate over free speech and limited government, with the country’s Malicious Communications Act at the center of controversy in the wake of “misgendering” episodes that saw police interviewing two women “under caution” — which means that investigators believe there is evidence the interview subject committed a crime, and must advise the subject of his or her rights — one of whom was detained.

Late last year, a transgender activist named Stephanie Hayden lodged a police complaint against 38-year-old Kate Scottow, claiming “a campaign of targeted harassment” after Scottow allegedly tweeted what court papers obtained by The Mail on Sunday calls “defamatory” messages about Hayden. The complaint also alleges Scottow used accounts in different names — at least two, according to The Mail’s report — “to harass, defame, and publish derogatory and defamatory tweets,” against the complainant.

Mrs. Scottow claims three police officers came to her home and arrested her there in front of her children, a ten-year-old daughter on the autism spectrum and a 20-month-old son who is breastfed.

“I was then detained for seven hours in a cell,” Scottow claimed, “with no sanitary products (which I said I needed) before being interviewed then later released under investigation.” Scottow went on to say, “I was arrested for harassment and malicious communications because I called someone out and misgendered them on Twitter.”

Details of the case against Scottow, regarding the complaint and the state of proceedings, are short. Hayden — who has a history of similar complaints, including one against Graham Lineham, the Irish comic writer probably best known in the US for his mid-90s sitcom Father Ted — tweeted Thursday that she has dropped her complaint against Lineham and is focused on “litigation arising out of the Mail on Sunday story featuring me on 10 February 2019 and the linked criminal investigation into Katherine Scottow.”

“This must be my priority,” Hayden tweeted. “The proceedings and investigation continue.”

Caroline Farrow uses the wrong pronoun

More recently, police invited Caroline Farrow, a long-time commentator on ethical issues in the UK and a 44-year-old mother of five married to a priest of the Ordinariate, to sit for an interview — also under caution — after Susie Green, who heads the UK-based charity and transgender advocacy group, Mermaids, complained to police about some tweets Farrow allegedly sent following a joint appearance on a BBC talk show.

“We were on Good Morning Britain,” Farrow recalled to CWR in an exclusive interview recently. “[We were] debating Girl Guiding,” as Girl Scouts are known in England. “Girl Guiding has changed its policy so that trans ‘girls’ can be Guides,” Farrow explained. “So,” Farrow continued, “there are some serious safeguarding issues here,” including accommodation on outings, questions of troop leadership and informed parental consent, as well as other related issues.

Following the appearance, Farrow allegedly sent some tweets, in which Green claimed Farrow misgendered as “him” Green’s child, who identifies as a woman and goes by Jackie. Farrow also allegedly claimed Mermaids promotes child abuse.

More than a month after the appearance and the tweets, Green complained to police, who rang Farrow as she was preparing dinner one evening thereafter to invite her to come in for an interview under caution. “It was going to be a test case,” Farrow said.

Farrow also told CWR her attorney prepared her for a grilling. “He warned that they would give me a very hard time at interview and that we needed to work through what I was going to say. He reassured me that he was there to make sure that the police didn’t ask inappropriate or misleading questions.”

Before the interview could take place, however, there was public outcry over the business. Green dropped the complaint, and police abandoned the investigation.

Green brought Farrow’s tweets to a British television program, and Farrow took to social media to plead her case. Surrey police stated, “We have been in contact with both parties as we have a duty of care towards both, and there was concern for their welfare as a result of publicity.” The police statement went on to say, “The victim will withdraw her allegation and has explained her reasoning. Without the support of the victim, it’s unlikely a criminal case could be brought.”

Farrow told CWR she doesn’t think the people given to the sort of advocacy to which she’s been subjected are quite done. “They want a test case,” she said. “They’ve been pressing charges against a few people, but they want a test case to codify into law that misgendering is an offense and they need a legal precedent.”

Equal treatment?

This wasn’t the first time Farrow has faced serious difficulty as a result of her own work.

During and after her vocal support of Alfie Evans — the very sick child who was at the center of an acrimonious legal battle and public controversy over medical ethics and the application of the Children Act 1989, which was designed to guide courts in providing for abandoned children and settling child care disputes among estranged parents, but was increasingly being used to override the wishes of parents united and determined on a course of care for their children.

Farrow had been the target of a months-long campaign organized by a group of online trolls, who allegedly published her children’s school address, made hundreds of dollars in purchases in her family’s name — including a cache of sex toys — set up blogs that posted insults and threats, and subjected Farrow and her family to other indignities, as Farrow explained to CWR:

They’ve published our address and contact details on their website. So, we’ve had our phones ringing all hours of the day, which has really affected my husband. Because he’s a priest, we can’t have call screening on our phone. He’s a chaplain for three hospitals and he’s often on call and he can’t ignore the phone. At one point, this troll was phoning us at a particular time of night repeatedly, and one time, in the early hours of the morning, there was a call and my husband hesitated to answer the phone. It turned out to be about a little boy who had sepsis. We don’t have the option of turning off the phone to stop the hate or my husband may miss a call from someone who needs him.

That’s not all. One of the trolls has “threatened to turn up to confession and ‘frighten the bejesus out of [my husband].’ Farrow said this fellow has also threatened to present himself as a penitent while her husband is hearing confessions:

He’s said he’ll come to confession and my husband won’t know whether or not he’s genuine. He’s threatened to turn up at parish events, he’s published details of my husband’s movements. He’s outed my ex-partner, who is in no way a public figure, he’s published details of his employer. He’s looked at pictures of my fourteen-year-old daughter and published pictures of my children. He defends himself saying he blacks out their faces, but the fact is, he’s trying to frighten us by reminding us that he’s looking at pictures of my children. He’s called them ‘no oil paintings.’ One of my children is autistic and he’s tried to identify which child it is and all the time, he’s blaming me for it. He’s published information indicating where they go to school. He says he knows how my eldest travels to school every day.

After months of such treatment, and numerous complaints, police finally interviewed someone over the behaviour. Police said they fully investigated Farrow’s complaints. “We were unable to find evidence that meets the threshold for criminal proceedings,” Surrey police were quoted as saying in the Daily Mail.

Broader implications

Whatever one makes of Scottow’s behavior — whatever the facts of her case — the apparent discrepancy in the treatment Farrow received with respect to her tormentors is something that has not escaped the notice of the public.

The question seems to be: why is the misuse of preferred pronouns a police matter at all? How can anyone’s feelings warrant such stringent legal protection, that the use of basic linguistic convention — even the mere articulation of biological facts — should become a crime, or evidence of one?

The pertinent part of the amended Malicious Communications Act reads:

Any person who sends to another person—

(a) a letter, electronic communication or article of any description] which conveys—

(i) a message which is indecent or grossly offensive;

(ii) a threat; or

(iii) information which is false and known or believed to be false by the sender; or

(b) any article or electronic communication which is, in whole or part, of an indecent or grossly offensive nature, is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.

Whether the language and intent of the Act are compatible with ordered liberty is quickly becoming a question, the address of which 21^st century Britain are not willing to postpone.

“As a society, this isn’t about demonising anyone who has gender dysphoria and thinks that the only way they can function is to dress and behave as the opposite sex,” Farrow told CWR. “We shouldn’t forget our compassion, but at the same time, we have to consider the impact on children and exercise some common sense.”

“We mustn’t be afraid in schools to push back against the trans ideology,” Farrow went on to say, “we shouldn’t feel afraid to voice concerns about men being able to identify as the opposite sex and use female changing rooms and toilets.”

“Women fought for the right to have segregated facilities,” Farrow continued. “It’s an important part of our right to protect our own boundaries. It’s about balance. It’s about being compassionate but not being afraid to assert our rights.”

(Fiorella Nash spoke to Caroline Farrow for CWR.)