Rishi, Rowling & A Glasgow Sex Shop: Breaking Down The Bizarre Discourse Around Scotland’s New Hate Crime Laws

First things first: what will Scotland’s Hate Crime and Public Order Act actually accomplish?

Put simply, the Hate Crime and Public Order Act, which came into effect on 1 April 2024 in Scotland, expands and modernises the country’s existing hate crime laws, including abolishing the offence of blasphemy, last prosecuted in 1843 (not an April Fool’s joke). First passed in 2021, the legislation criminalises any “threatening or abusive behaviour which is intended to stir up hatred” against an individual or group based on age, disability, religion, sexual orientation, transgender identity and/or variations in sex characteristics.

That sounds good –  although, what about race?

Actually, words or behaviour inciting racial hatred have been illegal across the UK as a whole since 1986. As Scotland’s First Minister Humza Yousaf pointed out while responding to the Hate Crime and Public Order Act’s detractors, “If I have the protection against somebody stirring up hatred because of my race – and that has been the case since 1986 – why on earth should these protections not exist for someone because of their sexuality, or disability, or their religion?” It’s also worth noting that England previously extended its own hate crime legislation to cover religion and sexual orientation in 2006 and 2008, respectively.

Got it. Why is there no mention of sexism in the Hate Crime and Public Order Act, though?

Controversially, the Scottish government deliberately excluded any reference to misogyny on the basis that sexism could be more effectively dealt with via a separate Misogyny and Criminal Justice Act – a decision backed up through a review spearheaded by Baroness Helena Kennedy. This call wasn’t without its critics, and has helped fuel debate about the Hate Crime and Public Order Act from the jump, particularly among those arguing, with varying degrees of coherence, that it protects transgender identity but not the rights of cis women (more on that below). It’s worth noting that, as of 2024, there’s no clear timeline for getting the Misogyny and Criminal Justice Act passed.

Who, exactly, is up in arms about the Hate Crime and Public Order Act, and why?

While Yousaf has (somewhat wordily) claimed that the bill’s passing represents “a strong and clear message to victims, perpetrators, communities and to wider society that offences motivated by prejudice will be treated seriously and will not be tolerated”, the legislation has been criticised on several levels. First and foremost, there are various concerns about how it will impact the Scottish public’s freedom of speech – some of which are valid, some of which were put forward by Elon Musk.

Gender-critical feminists, in particular, have been beating the “free speech” drum – hard. JK Rowling delivered a not-not-unhinged Twitter diatribe on the matter, declaring herself “look[ing] forward to being arrested” when she next returned to Edinburgh before doubling down on her right to misgender anyone she so pleases. She also referenced the Scottish Enlightenment, because what’s an offensive Tweet without a nod to David Hume? (To misquote Mother Miriam, “I worry about Harry Potter’s author, because she should be over this by now.”)

Meanwhile, Rishi Sunak took it upon himself to declare that “people should not be criminalised for stating simple facts on biology… We believe in free speech in this country, and Conservatives will always protect it.” (Not sure if you’ve heard, but there’s a general election coming up, and things aren’t looking good for the Tories.) Sunak has consistently espoused gender critical views during his premiership, famously declaring that “a man is a man and a woman is a woman” during the Conservative Party Conference last October.

Is this much a-transphobic-do about nothing, then?

Yes and no. Some of the concerns raised about the Hate Crime and Public Order Act do feel legitimate – particularly given the phrasing used within the bill. Specifically, it claims that language any “reasonable person” would find threatening can be reported either directly to police or via third-party reporting centres (which have, hilariously, been set up everywhere from a mushroom farm in East Lothian to Luke & Jack’s Passionate Purveyors Of Pleasure Products in Glasgow). Another sticking point: the fact that, in order for a conviction to be made, prosecutors will only have to prove that a comment was “likely” to offend instead of “intended” to offend, a crucial difference in a courtroom.