This week the Hate Crime and Public Order (Scotland) Act 2021 came into force. It’s not normal for legislation to take this long to come into effect, but this is not ordinary legislation. It has been plagued by controversy since it was proposed, and that controversy has come to a head this week as high-profile people such as JK Rowling have publicly dared the police to arrest them under the Act. Misinformation and misunderstanding have surrounded this new law. So, what does it actually do and why are so many forcefully dissenting from it?

The Act has two distinct strands: aggravations and stirring up offences. Aggravations are not crimes in their own right: they apply only when someone does something which is already a crime, such as an assault or a murder, and in doing so they demonstrate or are motivated by “malice or ill-will” towards a protected characteristic such as race or sexual orientation. In such circumstances, an existing crime can be recorded as a hate crime, and this will be accounted for in sentencing. Aggravations date back to 1998 in the context of race and over time sexual orientation, religion, disability, and transgender identity have been added. The 2021 Act consolidates these previous offences into one piece of legislation and adds age to the list of protected characteristics. 

Aggravations don’t seem to be causing controversy and have for the most part been mentioned only in the context of debate where it’s argued that the 2021 Act mostly just keeps the law the same. The real tension is revolving around the stirring up hatred offences. 

It’s been a crime to stir up racial hatred since 1965. The new Hate Crime Act will extend this to include religion, age, disability, sexual orientation, transgender identity and variations in sex characteristics. These offences are more limited than the racial hatred one. The offence of stirring up racial hatred can be committed either intentionally or recklessly. The other offences require an intention to stir up hatred to be proven. Additionally, there is a defence that one’s conduct is reasonable in the circumstances and there is an explicit commitment on the face of the Act to interpret reasonableness with particular regard to the right to freedom of expression. 

The legal standard that must be met for these crimes to be committed is high. So why have people been so worried? The answer is a combination of misinformation and mistrust. Unfortunately, both are centred around the Scottish government and Police Scotland. 

We have seen a public information campaign that has focused almost exclusively on hurt feelings, with barely a mention of freedom of expression. This might be understandable if this law was being introduced where it is relatively clear what counts as threatening or abusive behaviour in the context of these new protected characteristics. We have had a law against stirring up racial hatred for decades. The problem is that the background context into which this law is being introduced is one where there is profound disagreement within the public sphere over how to balance competing rights, particularly in the context of sex and gender identity. 

Misgendering or accurately sexing, depending on one’s view, is either legitimate political speech or it is abusive and potentially criminal

In our current political climate, there is profound disagreement about the substance of these competing claims, and this has bled into disagreement about what counts as abusive behaviour. To some, referring to a trans person by reference to their sex and not their gender identity is harassing and abusive. To others, this is a manifestation of legally protected philosophical beliefs and necessary for the protection of women’s rights. Misgendering or accurately sexing, depending on one’s view, is either legitimate political speech or it is abusive and potentially criminal. 

Against that background, one might have expected the Scottish government to have been clearer in its messaging about whether, in its view, the expression of gender critical speech was targeted by this new Act. Indeed, the government cannot claim ignorance of this: at Stage two of the Bill several amendments were put forward to explicitly state on the face of the Act that expression of gender critical views would not itself be taken to be threatening or abusive. This included an amendment proposed by the then Justice Secretary Humza Yousaf: 

Behaviour or material is not to be taken to be threatening or abusive solely on the basis that it involves or includes discussion or criticism of matters relating to transgender identity.

This prompted a backlash from trans rights activists that was virulent enough to leave Adam Tomkins, the then Justice Committee Convenor “a little afraid”. Yousaf quickly apologised and the amendments were pulled. 

In the end, the Act went ahead with generic freedom of expression protections rather than anything tailored to reflect the background political context. While these protections likely would be sufficient should a case get to court, feminist groups remained worried that this Act would be used by the same activists who left MSPs in fear to weaponise the police against them. Yousaf committed to meet with those groups going forward. That never happened and this week Ash Regan MSP revealed that at a meeting for ministers to discuss what guidance would be provided, it was decided that the government would not include any real-world scenarios involving gender critical feminists because “there was nothing to gain, and it would upset the transgender lobby”.

It is against this background that we must assess the messaging coming from both the government and Police Scotland on this issue. This week Siobhian Brown, the Minister for Victims and Community Safety, was interviewed about the Act. She was asked about whether misgendering was a crime under this new law, prompted by JK Rowling making several statements manifesting her gender critical views. Brown initially states that misgendering would not meet the criminal threshold. However, she then later states that this would actually be a matter for the police to decide. 

Police Scotland has for some time now had a definition of hate crime on its website which makes no reference to freedom of expression and claims that insults and name-calling can be hate crimes. Add to this the fact that people are seeing stories of opposition MSPs being reported for non-crime hate incidents for criticising government policy and it’s entirely reasonable for some people to be worried that they will be targeted. Indeed, it has been reported that, since Monday, there has been over 3000 hate crimes reported to Police Scotland. Several of these reports will have been about JK Rowling and the police have now confirmed that her posts did not meet the criminal threshold. The fact that it took her daring the police to arrest her to get some clarity from Scottish officials on this revealing. 

It is quite clear that if a case got to court the Act and its interpretation in light of human rights law would ensure that only the most extreme cases will be prosecuted. But that is not the messaging that was being sent out until recent backlash prompted a change in comms. 

In addition to this, many people are more worried about the police turning up at their workplace and using new powers in this Act to seize their phones and laptops than they are about being prosecuted or even convicted. The risk at this point is in how the police will choose to investigate accusations before deciding no crime has been committed. 

They heard it from Police Scotland and out of the mouth of government ministers

Some people are genuinely concerned that offensive speech or misgendering could now be a crime. But they didn’t get that idea out of nowhere. It wasn’t just drummed up by those opposed to this Act. They heard it from Police Scotland and out of the mouth of government ministers.

This social context matters when attempting to correct misinformation. The people who have believed what the police and government has told them and become worried are not the ones to be blamed for their reaction to this. Fault lies with people who have responsibility for the Act. If a government minister brought on radio to explain and defend the Act can’t unequivocally tell you that misgendering isn’t a crime and says that’s a matter for the police, you can’t blame people for thinking it might be a crime.