JK Rowling recently criticized Scotland’s new Hate Crime and Public Order (Scotland) Act, which criminalises the “stirring up of hatred” against certain minority groups, including transgender individuals. Rowling took issue with the inclusion of transgender identity as a protected characteristic, arguing that women, defined by biological sex, were not afforded specific protection. Critics of the Act have included Elon Musk, Joe Rogan, and Prime Minister Rishi Sunak. Sunak strongly implied that the law was silencing certain views when he claimed that “We should not be criminalising people saying common sense things about biological sex.”
However, no one has thus far been criminalised in Scotland for “saying common sense things”. Lawyers and academics had warned that the new law was being misrepresented around the world. The act had a relatively high bar for criminality and free speech provisions, including a right to express ideas that “offend, shock or disturb.” Even Adam Tomkins, a professor of public law at Glasgow University who voted against the bill when he was a Conservative MSP, conceded that it was “fairly safe” in terms of free speech.
There is no doubt that Rowling’s intervention transformed the issue into a global news story, focusing much of the week’s public and media debate on the issue of gender rather than the other protected characteristics in the Act. Within the Scottish Government, there is deep frustration with this narrative and the failure of the Act’s other aims to be recognised, including the protection of groups such as the Jewish and Muslim communities from prejudice and hate.
Had ministers proposed specific protection for women as a group within the law, included a specific free-speech clause relating to beliefs about gender, and taken language in the bill which protects expressions of “antipathy, dislike, ridicule or insult” towards religion and applied it to other protected characteristics, the narrative may have developed differently
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