How social media affects law

Feb 05, 2019

Written By Elizabeth Hurst

Social media can be a powerful instigator of change, especially when it comes to referendums and large-scale campaigns for new legislation. We take a look at two notable case studies in which social media had a significant impact.

Case study 1: The Eighth Amendment, Ireland

The impact social media can have on public referendums was made apparent when Ireland voted to appeal the Eighth Amendment of the Constitution Act 1983—a subsection recognising the equal right to life of the pregnant woman and the unborn. Though abortion had carried a criminal penalty in Ireland since 1861, the amendment ensured that legislation or judicial interpretation would be restricted to allowing abortion in circumstances where the life of a pregnant woman was at risk. A referendum was held on the Eighth Amendment in May last year.

Sarah Clarkin, head of social media for the Together for Yes group, targeted voters across Facebook, Twitter and Instagram. The campaigns reached millions of voters. In an interview with RTÉ, she explained: “Our whole strategy in Together for Yes is about equipping people to have conversations about the referendum and about why a Yes vote is very important for women. So, our social strategy is the same. We are trying to get our supporters and our followers out there talking about why the Eighth Amendment harms women, why we need to remove the Eighth Amendment on May 25.”

Both the “Yes” and “No” sides fought their campaigns valiantly using social media alongside more traditional canvassing methods. Repeal the Eighth apparel was not only worn in public, but was also displayed with photographs on Instagram, Facebook and elsewhere. Campaign hashtags were particularly effective, as people discussed the issues using #repealthe8th on Twitter. In the days running up to the vote, #HomeToVote showed Irish men and women living overseas making the journey back to Ireland to take part in the referendum. The social-media posts were collated and written about in articles, which were in turn shared by others. The message was amplified, resonating with more and more voters.

According to Twitter, the top hashtag in Ireland this year was #repealthe8th, closely followed by #brexit then #áras18. Internationally, #brexit is top, with #trump and #russia also in the top five. Social media has become the online arena for intense political displays. Problems arise from this, as complicated issues are boiled down to fit within character limits. Arguments become heated and personal behind anonymising usernames. ‘Bots’— automated accounts posing as real people, thought to be used to influence elections or incite hatred—add another dimension to social media’s influence. Most crucially, online discussion and debates can quickly forget the actual issue at hand.

On May 25, 2018, the “Yes” side was successful in its campaign to reform Ireland’s strict abortion laws, and the celebrations continued online. Social media provided a platform for people to share their often emotional and heartbreaking reasons for voting ‘Yes’, and show the very human side of a legal issue.

Though the Irish people voted to repeal the Eighth Amendment, the new Health (Regulation of Termination of Pregnancy) Bill 2018 isn’t perhaps what many repeal voters had in mind. Emer O’Toole, associate professor of Irish performance studies at Concordia University in Canada, outlined how the aims of the abortion law don’t align with voter wishes. “Exit polls show that 62% of people cited a woman’s right to choose as the motivation for their votes, and 55% cited women’s health,” he wrote in The Guardian. “These were the electorate’s two main priorities. There is no ambiguity about what the people want.”

Despite the traditional narrative presented on social media, in which people support women’s right to choose whatever the circumstances, representatives seem to be taking a more moderate approach. The new bill puts red tape in place rather than peeling it away, with aspects including “a mandatory three-day waiting period; unnecessary criminalisation; casting the patient’s views of risks to her health or of the probable gestational date as clinically irrelevant; creating an unworkably high bar for access to abortion where the health of the pregnant person is at risk; and regulations that seem designed primarily to create barriers to safe, legal care”.

Previously, high-profile cases concerning abortion weren’t widely reported, with those involved unable to speak out. As Chloe Mac Donnell wrote for Glamour: “Miss X, Ms A, Ms B, Ms C, Miss D, Miss C—there’s an entire alphabet of female bodies in Ireland over which control of their own body has been taken away from them.” Thanks to social media and the people who shared their stories online, those affected by the Eighth Amendment now have a face and, most importantly, a voice.

The replacement bill presents new problems, as those at the forefront of the debate are still concerned with restricting abortion, effectively going against the feelings that voters displayed online. O’Toole is alarmed, saying, “The purveyors of red tape know this. They know that their hoop-jumping exercises will effectively prevent many vulnerable women, trans and non-binary folk accessing the care they need and should be legally entitled to.” Lawyers for Choice have also analysed the legislation in depth and found a myriad of potential human-rights abuses, so the battle is far from over.

Case Study 2: Self-Identification and the Gender Recognition Act

As of 2004, transgender people in the UK have been able to legally change their gender by acquiring a gender-recognition certificate (or GRC). It was a monumental step forward for trans rights— the first law in the entire world that didn’t require people to have reassignment surgery before making the legal change. The current system requires trans people over the age of 18 to seek approval from a panel of experts to receive the certificate. They need to supply a medical diagnosis of gender dysphoria (the condition of feeling one’s emotional and psychological identity as male or female to be opposite to one’s biological sex) and evidence that they have been living as their “acquired gender” for a period of two years. Once the legal tribunal issues a GRC, they are then able to change the gender on their driving licence and passport, and apply for a birth certificate.

On 3 July 2018, the Government announced a public consultation to reform the Gender Recognition Act 2004: “Since the GRA came into force, only 4,910 people have legally changed their gender. This is fewer than the number of trans respondents to the government’s LGBT survey, who were clear that they wanted legal recognition but had not applied because they found the current process too bureaucratic, expensive and intrusive. The government therefore seeks your views on how to reform the legal recognition process.”

The next step for gender identification leans towards selfdeclaration— a system where a person’s gender identity is immediately and automatically accepted, without the need for a legal tribunal. The UK is by no means the first country to consider this system. Scotland has already held a consultation on the matter, looking to follow in the footsteps of Ireland and Denmark who already accept self-declaration, though not without some formality. Ireland requires a statutory declaration as witnessed by a lawyer, and Denmark asks for reconfirmation six months after applying their new personal-identification number.

The decision isn’t being taken lightly. Compared to the countries that have already adopted self-declaration, the UK has a much larger population and thus many more people that are affected. The subject is difficult, as it involves issues of personal identity, with legal rights and protections to consider. The most prevalent issue that has been widely debated across social media involves spaces that are female-only to protect a disadvantaged group.

The Equality Act makes an allowance for objective justification. This means that policies can be applied that would otherwise be unlawful direct discrimination where there is “a proportionate means of meeting a legitimate aim”. An example of this is in rape crisis centres, where a female-only space is created in the interest of safeguarding women using the facilities. Some trans people think this should be abolished, while some feminists argue that this policy should be strengthened. Some members of both sides think completely the opposite.

Arguments surrounding this point go far beyond the original consultation laid out by the government, which was firm in its purpose: “The consultation focuses on the Gender Recognition Act 2004. We are not proposing any amendments to the Equality Act 2010. […] Trans and non-binary people are members of our society and should be treated with respect. Trans people already have the right to legally change their gender, and there is no suggestion of this right being removed.”

Despite the tight focus of the government outline, the argument on social media was messy. The issue had previously come to boiling point when Tara Wolf, a trans activist, assaulted Maria Maclachlan at Speakers’ Corner during an event called “What is Gender: The Gender Recognition Act and Beyond”. Protestors of the event chanted, “When TERFS attack, we fight back!” The term TERF is short for Trans Exclusionary Radical Feminist and is used by trans advocates to describe feminists who oppose the inclusion of trans people in female spaces and organisations. Many of those on the receiving end see it as a mischaracterisation and a slur. This incident introduced the term to the wider public, and thus reduced a complicated argument to for (trans activists) and against (TERFS).

Though the incident between Wolf and Maclachlan involved physical violence, much of the fighting on issues surrounding the public consultation has been online, with insults typed and jeers in the form of Twitter graphics. A thread on the forum Mumsnet titled “Gender Self Identity Law coming! MNQH and Mumsnetters: Time to pick a side” got over 1,000 messages in just two days.

It’s been shown that a large volume of voices has the ability to incite change. The internet was appalled when Travis Alabanza (who identifies as trans feminine) claimed to have been refused entry to female changing cubicles in a Manchester Topshop store. Evidence—reduced to a tweet and an outpouring of outrage— resulted in Topshop confirming their policy that “all Topshop and Topman customers are free to use any of the fitting rooms located within our stores”.

As the deadline for the Gender Recognition Act consultation was extended due to the high volume of responses, the conversation continued to explode online. Female campaigners from the group Man Friday stormed a male-only pool at Hampstead Heath, wearing fake beards while claiming to “self-identify as men” to protest the proposed changed to gender law. Pictures of the protest flooded the media. In a conversation with a trans non-binary couple on Good Morning Britain, broadcaster Piers Morgan asked, “Can I literally say I’m now an elephant and do I get afforded elephant rights? Can I go to London Zoo and demand to be put in an elephant compound because I have decided I’m an elephant?”

Over 53,000 people reportedly responded to the Government’s consultation questions. The feedback is still being analysed. Only the results of the consultation will show the effect of social media on this highly topical issue, and the laws that govern it.

Legal Spotlight