C: Gript

GERARD CASEY: This is a law designed to make you afraid

The publication by the Government of the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 has been met with a flurry of responses on various media, indicating a measure of interest and excitement not usually accorded to proposed legislation.

Those who favour free speech have been somewhat less than enthusiastic about the Bill, while those of a more interventionist disposition who have reservations about the value of free speech have greeted it with acclaim.

From the nature and tone of many of these responses, it’s not clear that their proponents have actually read the Bill, something you might think necessary to any comments purporting to be informed. This, though regrettable, in a sense forgivable, as the Bill possesses all the literary charm and clarity of a report of prices from a cattle mart.

As if according to a Hollywood script, the fault line between these two groups was exhibited in the Twitter reaction to a recent homily of Fr Seán Sheehy. Catholics of an orthodox stripe greeted his strictures against homosexual acts, promiscuity and transgenderism with approval, whereas others expressed the hope or wish that, under the proposed legislation, remarks such as his might be subject to prosecution.

Should Catholics be concerned by this Bill? Dubhaltach O Reachtin, writing in the Catholic Herald (2/11/2022) seems to think they should: “The Catholic Church has long-standing objective positions on issues, which, if they are to be uttered in public (and that may include the pulpit), may cause the priest or other adherent to be made subject to prosecution. Although there is a subjective space for ‘reasonable and genuine contribution’ [in the Bill] in relation to literary, artistic, political, scientific, religious or academic discourse, this is based on what is ‘considered by a reasonable person as being reasonably necessary. What is likely to be considered reasonable, or what is a reasonable person, is contested in an increasingly polarised world.”

Among the early responses that the Bill received, was one from a leader writer in the Irish Times. (1/11/2022). The Irish Times is accorded a measure of gravitas by the great and the good in Irish society and so an editorial comment from it is often be deemed to be prima facie authoritative, accurate and representative of informed public opinion.

After a brief review of the relative ineffectiveness of the Prohibition of Incitement to Hatred Act 1989, the leader writer noted: “the publication on Friday, following Cabinet approval, of the Incitement to Violence or Hatred and Hate Offences Bill (2022) is a welcome attempt both to make prosecution easier and to prohibit and penalise transphobic speech.” [my emphasis].

The Bill actually lists ten so-called ‘protected’ characteristics: race, colour, nationality, religion, national or ethnic origin, descent, gender, sex characteristics, sexual orientation, and disability (as the leader writer later notes), so one might wonder why, of these ten characteristics, the prohibition and penalisation of transphobic speech is singled out for special mention.

Section 3(2)(d) of the Bill reads: ‘“gender” means the gender of a person or the gender which a person expresses as the person’s preferred gender or with which the person identifies and includes transgender and a gender other than those of male and female’. If this section is meant to give a definition of gender, it manifestly fails, for no coherent attempt to define a term ‘X’ can include X in the proposed definition. But if it’s not meant to define gender, that leaves us with another problem since ‘gender’ appears to be defined nowhere else in the Bill. Similar considerations apply to the term ‘hatred’! We are told, ‘“hatred” means hatred against a person or a group of persons in the State or elsewhere on account of their protected characteristics or any one of those characteristics’. If this is meant as a definition, it fails utterly. But if not, where is a definition of hatred to be found in the Bill?

Let’s look at §3(2)(d) again. This appears to pick out three items: (1) a person’s gender; (2) a person’s expressed-preferred gender; (3) a person’s identified gender. In the case of all three, we appear to be told (the lack of punctuation doesn’t help here) that gender can include transgender or a gender other than male or female.

We are not told what gender is; what transgender is; what a gender other than male or female might be or how many of them there might be; and how any of the three listed gender items differ from or relate to one another. For example, could a person have all three gender types simultaneously?

So, back to my question. Why of all the possible virtues of this Bill, does the Irish Times leader writer accord singular mention to its putative prohibition and penalisation of transphobic speech? The Bill doesn’t mention transphobic speech, still less does it define it, and there are nine other ‘protected characteristics’ that can be offended against.

In general, hate speech crimes are demanded by victim groups for recognition of their special victim status, and they are provided by politicians for political reasons, including the attractive and cost-free benefit to those politicians of signalling their superior virtues.

Perhaps most significantly, however, hate speech crimes function to provide for the pre-emptive repression of criticism.

Transphobia, as a hate speech crime, pre-empts criticism of transgenderist ideology. The singling out of transphobic speech from among all other possible types of offensive speech by the Irish Times leader writer is yet another indication of the penetration of transgenderist orthodoxy into our social institutions, helped, in no small measure, by the intellectual incoherence introduced into Irish law by the Gender Recognition Act (2015)

A glance across the Irish Sea reveals a titanic struggle by women there to protect female-only spaces and services from invasion by so-called transwomen (that is, biological men who claim to be women) and their difficulty in trying to defend these spaces and services in the face of the Damocles’ sword of accusations of transphobia.

This battle is coming to a country near you (if it hasn’t already arrived) and the Bill, if enacted, will surely have an effect in how it plays out here.


Gerard Casey is an Irish academic who is Professor Emeritus at University College Dublin. He tweets at https://twitter.com/Casey5122dark

He holds law degrees from the University of London and UCD as well as a primary degree in philosophy from University College Cork, an MA and PhD from the University of Notre Dame and the higher doctorate, DLitt, from the National University of Ireland. He was formerly Assistant Professor at The Catholic University of America (Washington, D.C.), 1983-1986 and Adjunct Professor at the Pontifical Institute in Washington D.C., 1984-86.[1]

He was a member of the School of Philosophy in University College Dublin (UCD) (Head from 2001–2006) from 1986 until he retired in December 2015. He is a Fellow of Mises UK and an Associated Scholar of the Ludwig von Mises Institute in Auburn, Alabama. He has also been a member of the Royal Institute of Philosophy, the American Philosophical Association and The Aristotelian Society.

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