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What is Scotland’s new hate crime law – and why is JK Rowling challenging it?

Scotland’s controversial new hate crime laws came into force on Monday, introducing updated legislation around transgender identities.

Passed in 2021, the new hate crime act aims to ensure “crimes motivated by prejudice will be treated more seriously and will not be tolerated by society”.

Among its opponents is JK Rowling, author and prominent anti-trans activist. Writing on X on April 1, Ms Rowling challenged the bill in a series of posts.

The Harry Potter author listed several transgender women, ranging from convicted sex offenders to TV presenters, referring to them all as men.

Author JK Rowling is a prominent anti-trans activist (AFP via Getty Images)
Author JK Rowling is a prominent anti-trans activist (AFP via Getty Images)

In her final post, Ms Rowling claims that women’s issues cannot effectively be tackled “unless we are allowed to call a man a man”, challenging Scottish police to arrest her when she returns to the country.

Rishi Sunak has backed the author, arguing that people should not be criminalised “for stating simple facts on biology”.

Humza Yousaf has said he is “very proud” of the new laws, arguing they will help protect against a “rising tide” of hatred.

The Scottish first minister has also expressed that he is “very confident in Police Scotland’s ability in order to implement this legislation in the way it should”.

In light of the controversy, here is everything you need to know about Scotland’s new hate crime law:

What does Scotland’s new hate crime law do?

It updates the definition of transgender identity

The new act changes existing legislation to remove the term intersexuality from the current definition of transgender identity. Splitting these terms up, it now provides for both biological sex characteristics and gender identities.

This means there are now two distinct characteristics: ‘variations in sex characteristics’, which relates to ‘physical and biological characteristics of the body’, and ‘transgender identity’, which relates to ‘a person’s gender identity’.

As per the new act, a person is a member of the group under the definition of transgender identity if they are:

  • a female-to-male transgender person

  • a male-to-female transgender person

  • a non-binary person

  • a person who cross-dresses

It introduces new hate crime offences

The 2021 act maintains the existing ‘stirring up of racial hatred’ offence outlined in the Public Order Act 1986.

This makes it an offence to behave in a manner that could be considered threatening, abusive or insulting, with the intent of stirring up hatred against a group of people based on race, colour, nationality or ethnic or national origins.

It is also an offence if this is the consequence of the behaviour, without being the clear intent.

The 2021 act does not replace Scotland’s existing hate crime legislation but builds on it. It creates similar stirring up of hatred offences for the following characteristics:

  • Disability

  • Religion

  • Sexual orientation

  • Transgender identity

  • Age

  • Variations in sex characteristics

However, the bill states that it is an offence to behave in a way that is threatening or abusive – but not insulting – towards someone on the basis of these characteristics, unlike racially-based hate crimes.

In practice, this means the threshold at which the police will consider behaviour against a transgender person (based on their identity) a hate crime is much higher.

Is it now a crime to misgender someone?

Scotland’s new laws do not make misgendering a specific criminal offence. Rather, it will be up to the police to interpret whether a person’s behaviour constitutes a hate crime on a case-by-case basis.

The bill also offers protections for freedom of expression, giving people scope to discuss matters around certain characteristics or identities, including transgender identity.

Asked whether misgendering someone on the internet was now a crime, Siobhian Brown MSP, minister for victims and community safety, said: “It would be a police matter for them to assess what happens.”

“It could be reported and it could be investigated - whether or not the police would think it was criminal is up to Police Scotland,” she told BBC Radio 4’s Today programme.

“There is a very high threshold which is in the act which would be up to Police Scotland, and what would have to be said online or in person would be threatening and abusive.”