When I was the victim of a transphobic hate crime

The question was direct and to the point, ‘Are you one of them blokes?’

With those six short words, I was the victim of blatant transphobia.

We have been advised to report such attacks. ‘We need the stats,’ explained one transgender campaigner in 2018. That was in response to ‘hateful’ stickers which read ‘Female is a biological reality’ appearing in Edinburgh. This attack was personal and in my face.

But if this was transphobia, I was in no danger. The woman who asked the question was in her 60s, laden down with groceries and she would have needed to stand on a box for it to be truly in my face. I towered over her.

I decided that the situation called for a straight answer, ‘Why yes, so I am!’

‘You’re very convincing,’ I was reassured.

‘Clearly not convincing enough’, I replied with a smile.

She smiled back and nodded. ‘Good on yer’, she added and carried on down the platform. The Circle Line train pulled in, and the crisis was over without a blood vessel being burst.

Transphobic hate crime has been on an upward trajectory according to Home Office figures published in October. In the year ending March 2021, police in England and Wales recorded 2,799 hate crimes relating to transgender identity, up from around 300 in 2011 to 2012.

What those numbers do not tell us, though, is the nature of the incidents themselves. The Edinburgh stickers might have caused a littering problem, but their message – female is a biological reality – was hardly transphobic. My interlocutor in London appeared to be motivated by curiosity rather than hate. How many more reports were sparked by hurt feelings or the taking of offence, we do not know.

But even if everything reported to the police related to actual criminal behaviour, should we worry about 2,799 incidents? It sounds a lot, and all crime is too much crime, but the number of transgender people in the UK is probably into six figures. According to Gallup polling, 0.6 per cent of US adults identify as transgender. The same proportion in England and Wales would suggest a transgender population of just under 300,000. In round numbers, that would suggest the average impact on each transgender person is one reported hate crime every 100 years.

If that conversation at St James’s Park tube station was my once-in-a-lifetime event, I’d take it. However, despite the urging to report everything, I suspect that many incidents of alleged transphobia go unreported. Possibly because they are not serious enough. They might be upsetting or annoying, even offensive – but should it be a crime to upset, annoy or offend someone else? Should transphobia be a hate crime?

According to the Crown Prosecution Service, any crime can be prosecuted as a hate crime if the offender has either:

• demonstrated hostility based on race, religion, disability, sexual orientation or transgender identity, or
• been motivated by hostility based on race, religion, disability, sexual orientation or transgender identity.

But we can never get inside an offender’s mind to understand their motivation. Not to worry, though, the police and the CPS have agreed the following definition for identifying and flagging hate crimes:

“‘Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice, based on a person's disability or perceived disability; race or perceived race; or religion or perceived religion; or sexual orientation or perceived sexual orientation or transgender identity or perceived transgender identity.’

This is very broad and relies on perception rather than actuality. But it gets worse. The CPS website continues:

“‘There is no legal definition of hostility so we use the everyday understanding of the word which includes ill-will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike.’

So had I taken a dislike to this woman’s questioning and perceived her to be transphobic, that alone would have been grounds to report her. Had the police been satisfied that there was sufficient evidence that a crime had been committed then she could have been prosecuted for a hate crime.

That puts a lot of power in the hands of the alleged victim. In this case, me. I am not particularly oppressed as a trans person in Britain. Actually I enjoy considerable privilege. I am a white educated male. I’m middle aged and established in my career; I speak English fluently. Those advantages far outweigh any possible detriment I experience because I am also trans.

Others are less fortunate than me – I accept that – but many of them do not have the protection I do. There are only five protected characteristics in this area of the law, and sex is not one of them. It is outrageous that my feelings and perceptions carry more weight under the law than those of a woman.

Parliament could expand the scope of hate crime to include misogyny; it could also perhaps consult on further expansion of the law. But should perceptions like this have any place in the criminal law? Maybe we should judge cases on their merits and prosecute cases involving abuse and threatening behaviour in the same way whoever was the victim of the crime?

And asking the question, ‘are you one of them blokes?’ is – in itself – neither abusive nor threatening. We would all be in a healthier place if we recognised it.