In the United Kingdom, the debate around gender long ago lost any semblance of moderation. It is a political and cultural battle in which the text of a law or a lawmaker’s intentions is what matters least. Both sides of the conflict see hidden attacks on their freedom in every move the other side makes. Writer J.K. Rowling has become the standard-bearer for the side that does not believe trans women are women. Hours before the Hate Crime and Public Order Act came into effect in Scotland — where J.K. Rowling was born and continues to live — the Harry Potter author posted a series of controversial messages on X (formerly Twitter) and challenged the Scottish government of Humza Yousaf to arrest her under the new law.
“Scotland’s Hate Crime Act comes into effect today. Women gain no additional protections, of course, but well-known trans activist Beth Douglas, darling of prominent Scottish politicians, falls within a protected category. Phew!” she posted on social media, beginning a thread of almost a dozen messages, in which she listed who she believed would be protected by the new law. The list includes the rapist Isla Bryson, who transitioned to a woman shortly before being convicted; trans Katie Dolatowski, who was locked up in a women’s prison after sexually assaulting a 10-year-old girl in a public bathroom; as well as trans activists such as Mridul Wadhwa, Munroe Bergdorf and Katie Neeves.
All of them — both the convicted sex offenders and the trans activists — are protected by Scotland’s new law, according to Rowling. “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,” concluded Rowling, who challenged the Scottish government to arrest her for her statements.
The content of the law
The new law, which has been under parliamentary review for three years, concerns crimes “that stir up hatred.” Under the legislation, for this offense to be committed, a person must behave in a manner that “a reasonable person would consider to be threatening, abusive or insulting” or “communicates to another person material that a reasonable person would consider to be threatening, abusive or insulting.”
According to the text, this behavior is intended to “stir up hatred” against a group for being defined by the following characteristics: age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics.
It is precisely the lack of clarity of the law, which uses ambiguous terms such as “reasonable person” and “variations in sex characteristics,” that has prompted critics to argue that it could be used to cancel or censor statements like those made by Rowling, who defends “the reality and immutability of biological sex.”
Law experts, however, do not believe there are grounds to charge the writer. The Yousaf government — scalded by a debate on gender self-determination that was one of the factors that led to the resignation of Nicola Sturgeon — introduced an amendment that states when considering a crime Article 10 of the European Convention on Human Rights. This article states: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
Police in Scotland ruled out any action against Rowling hours after she posted her tweets: “We have received complaints in relation to this social media posting, but the comments have not been considered criminal in nature and no further action has been taken,” he said.
Opponents of the new law — nearly 300 people demonstrated in front of the Scottish Parliament on Monday — have also criticized the fact that the legislation does not provide specific protections for women against possible hate crimes. The Scottish government has said that it is working on a new legal text focused exclusively on misogyny and sexism.
The Tories culture war
In an election year in which the results in Scotland could affect who will win the U.K. election, the Conservative Party has launched a culture war against progressive policies in a bid to win votes. In January last year, U.K. Prime Minister Rishi Sunak blocked the Gender Recognition Reform Act passed by the Scottish Parliament, and has now sided with Rowling in the latest debate over the Hate Crime and Public Order Act.
“People should not be [criminalized] for stating simple facts on biology,” Sunak told The Daily Telegraph on Monday. “We believe in free speech in this country, and Conservatives will always protect it.”
Any citizen, according to the new law in Scotland, can report a hate crime; they do not have to be an alleged victim. A report can be made at a police station, in centers designated for that purpose, or by calling 999 or 101. It is up to the police to initiate a criminal investigation or not, based on the “reasonableness” of the complaint and its intention to “stir up hatred.”
In the event that the investigation is not successful, the “hate incident” would still be recorded: not in the criminal record of the accused, but in the police’s private file on that person.
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