Good news — J.K. Rowling won’t be arrested for “misgendering” men who identify as women, Scottish police assure.

Bad news — Scotland’s new law making it illegal to “stir up hatred” against someone based on their age, race, disability, religion, sexual orientation or transgender identity is still in effect — despite widespread confusion over what actions constitute “stirring up hate.”

The Hate Crime and Public Order (Scotland) Act, which passed the Scottish legislature in 2021, says a person can be charged with stirring up hatred — and face up to seven years in jail — if they:

Behave in a manner that a reasonable person would consider to be threatening, abusive or insulting, OR communicate to another person that a reasonable person would consider to be threatening, abusive or insulting, AND EITHER intend to stir up hatred against a protected group OR a reasonable person would consider the behavior of the communication of the material to be likely to result in hatred being stirred up against a protected group.

The Act gives no indication what kinds of speech would be criminalized.

Lois McLatchie Miller, senior legal communications officer for Alliance Defending Freedom (ADF) International, writes for the New York Post, “The law is vague and far-reaching, without clear parameters around what the state decides could be ‘hateful’ language.”

The law created so much confusion, says Miller, about how it would be enforced — including whether Rowling could tweet about the biological differences between men and women — that Scottish police asked to delay the law’s implementation so it could prepare to investigate the onslaught of reports.

Yesterday, the Hate Crime and Public Order Act of 2021 officially went into effect. The Scottish police will reportedly investigate every complaint made under the act, despite announcing it lacked the bandwidth to prosecute some 24,000 “low-level crimes” less than a month ago.

The problem No one seems any closer to answering who is liable for jailtime.

Scotland’s Victims and Community Safety Minister, Siobhian Brown called the act “ambitious,” but simultaneously assured the BBC it would “not necessarily criminalize [anything that wasn’t already illegal].”

She continued,

You have to be really threatening and really abusive [to be convicted of stirring up hate], and there has to be reasonable assumption from other that that is the case.

When the outlet asked whether “misgendering” someone would be a crime, Brown left it up to police discretion.

Regardless of the law’s content, many people seem to believe the law does, in fact, make calling men who identify as women by their biological pronouns a crime. In March, a man implied he would report J.K. Rowling  if she refused to delete old tweets calling Scottish T.V. personality India Willoughby, who identifies as a woman, a man.

Rowling replied:

The author doubled down on April 1st by satirically highlighting several Scottish men identifying as women who have physically, mentally, socially and economically harmed biological women.

She goes on to write, in part,

In passing the Scottish Hate Crime Act, Scottish lawmakers seem to have placed higher value on the feelings of men performing their idea of femaleness, however misogynistically or opportunistically, than on the rights and freedoms of actual women and girls. The new legislation is wide open to abuse by activists who wish to silence those of us speaking out about the dangers of eliminating women’s and girls’ single-sex spaces, the nonsense made of crime data if violent and sexual assaults committed by men are recorded as female crimes, the grotesque unfairness of allowing males to compete in female sports, the injustice of women’s jobs, honors and opportunities being taken by trans-identified men, and the reality and immutability of biological sex.

Rowling ended the defiant post with a flippant, “#ArrestMe.”

Though Scottish police declined to arrest Rowling, her defiant position exposes deep divides among Scottish legislators regarding the law’s scope.

Prime Minister Rishi Sunak declined to comment on the author’s case specifically, but emphatically noted,

We should not be criminalizing people saying common sense things about biological sex. Clearly that isn’t right. [Scotland] has a proud tradition of free speech.

A spokesperson for First Minister Humza Yousaf fired back at Sunak, telling the BBC,

The prime minister’s comments ignore the fact that the right to freedom of expression is built into the Act and that it also has a high threshold for criminality. The legislation does not prevent people expressing controversial, challenging, or offensive views, nor does it seek to stifle criticism or rigorous debate in any way.

Scotland’s confused law should warn Americans of the dangers of using policy to crack down on hate speech, no matter how well-intentioned.

Conceptions of hate speech are similarly murky here. In California, a women’s group was accused of hate speech for holding a sign reading “Protect Women’s Sports.”

Less than six months ago, the presidents of Harvard, M.I.T. and the University of Pennsylvania told a congressional committee they could only discipline students calling for the genocide of Jews if the context warranted it. Their defense? Students’ right to free speech.

Rowling’s plight also demonstrates the way hate speech laws can indirectly harm censor people. By threatening her with prosecution under the impending act, X (formerly Twitter) users tried to force Rowling not only to filter her current speech, but erase her past speech.

If the author had conceded, the law would have effectively silenced Rowling’s viewpoint before it became effective.

The First Amendment to the U.S. Constitution endows every American with the right to freedom of speech. Come what may, the Daily Citizen will continue opposing laws that unjustly infringe on those rights.

Will you join us?

To find out what proposals threaten free speech in your state, contact your local Family Policy Council.

Additional Articles and Resources

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J.K. Rowling Calls Trans Procedures on Children ‘Worst Medical Scandal in a Century’

J.K. Rowling Speaks Out Against Transgenderism and Cancel Culture, ‘It’s Going to Have to Be Me, Isn’t It?”

J.K. Rowling Attacked For Saying Male Rapists Aren’t Women — No Matter How They ‘Identify’