Judges throw out conviction of 'misgendering' during online discussion

Citing society’s need for freedom of speech, two judges in the United Kingdom have reversed a conviction for a mother of two who was charged with calling a man who lives as a woman a “man.”

A report from the Christian Institute says Kate Scottow has had her conviction, under the 2003 Communications Act, overturned.

She had been ordered to undergo a two-year conditional discharge and to pay 1,000 pounds in compensation, but the Court of Appeal decision reversed that.

Lord Justice Bean and Mr. Justice Warby ruled that free speech includes “the right to offend” and pointed out that, “Freedom only to speak inoffensively is not worth having.”

Scottow had been arrested at her home in front of her children after Stephanie Hayden, a man who now lives as a woman, called police to complain that Scottow was using “offensive” language that focused on online references to him as a man.

The judgment said the Communications Act was “not intended by Parliament to criminalize forms of expression, the content of which is no worse than annoying or inconvenient in nature.”

Basing cases on such circumstances actually poses the threat of a “serious interference” with free speech, the ruling said.

The trial judge, Margaret Dodds, had scolded Scottow, stating, “Your comments contributed nothing to a debate. We teach children to be kind to each other and not to call each other names in the playground,” but she came under criticism in the appeals ruling, which said the trial judge “appears to have considered that a criminal conviction was merited for acts of unkindness, and calling others names.”

The Institute said the ruling was significant as a precedent for future cases.

The appeals judges noted Scottow, 39, was convicted of “one offense of improper use of a public communications network” that involved social media statements that addressed Hayden, a public figure.

She had been ordered in an interim injunction decided at a hearing which she was unable to attend not to post on any social media platform any “misgendering” relating to Hayden, including “publishing anything linking her current female identity to her former male identity.”

Hayden had boasted online that his case involved the “first injunction in English legal history restraining misgendering.”

The appeals judges found that prosecutors in the case had presented the case as “harassment-lite,” but that was incorrect under the law.

The ruling said Parliament did not intend “to criminalize forms of expression.”

The ruling said, “This appeal illustrates the need for decision-makers in the criminal justice system to have regard, in cases where they arise, to issues of freedom of speech.”

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