Background

In R (Miller) v The College of Policing & Anor [2020] EWHC 225 (Admin), the issue before the Court was freedom of speech. There were two aspects: the lawfulness of the College of Policing’s Hate Crime Operational Guidance (HCOG) on non-criminal hate speech and, specifically, how Humberside Police – the second Defendant – dealt with a complaint by a woman called Mrs B that she had been offended by things that Mr Miller had written on Twitter about transgender issues [7]. (Ironically, Mr Miller was a former officer in Humberside Police.)

Julian Knowles J noted that transgender issues were a current topic of controversy. The Government’s 2018 consultation on reforms to the Gender Recognition Act 2004, Reform of the Gender Recognition Act – Government Consultation, July 2018, proposed replacing the current requirements for obtaining a Gender Recognition Certificate with an approach that placed a greater emphasis on an individual’s self-identification of his or her gender. The Minister concluded her introduction to the consultation document like this:

“We … want to be clear that this is an explorative consultation and we do not have all the answers. That is why, as we consult, we are mindful of the need to engage with all perspectives. We particularly want to hear from women’s groups who we know have expressed some concerns about the implications of our proposals” [13].

Broadly speaking, Mr Miller was concerned that removing the requirement for a medical diagnosis and streamlining other parts of the process carried risks for women because, for instance, it might make it easier for trans women to use single-sex spaces such as women’s prisons, women’s changing rooms and women’s refuges [14]. He posted a number of tweets on that theme which Mrs B reported to the police as “transphobic” [15]. Continue reading →