Scotland’s law, enacted last week, makes it an imprisonable offense to incite hatred on the basis of race, religion, transgender identity, sexual orientation, age or disability.
“If … it’s intended to stir up hatred because of their membership of that group, then that is a criminal offense,” Nick McKerrell, a senior law lecturer at Glasgow Caledonian University, said in a telephone interview Monday. In Scotland, prosecutors recorded 1,884 hate crime charges relating to sexual identity in 2022-23 — representing an eighth consecutive year-on-year increase — in addition to 55 charges relating to transgender identity.
Rights groups say the change is a much-needed extension of hate crime protections, consolidating them into a single statute for the first time. Its opponents — including Harry Potter author J.K. Rowling — say they are concerned that the protections are so broad that they could unfairly criminalize free expression. (Critics have also argued that women should be listed as a protected category, too; the Scottish government says it intends to do this through separate legislation.)
The furor underlines the polarizing impact of attempts by legislators around the world to find a balance. Backlash to the law has been so fierce that it reportedly prompted far-right agitators to flood police with crime reports to overwhelm them in protest.
Legal experts and the Scottish government say the threshold for criminality is high enough to prevent the stifling of debate, pointing out that the law cannot be used to censor jokes or views that are offensive or shocking.
“The test is that it has got to be threatening or abusive to someone, or it has to cause them fear or alarm,” McKerrell said. “That’s a very high threshold.”
In a series of social media posts, which misgendered trans women and mocked their physical appearance, Rowling — who lives in Scotland — wrote that “freedom of speech and belief are at an end … if the accurate description of biological sex is deemed criminal,” and dared Scottish police to arrest her “if what I’ve written here qualifies as an offense.”
Rowling’s remarks last week drew condemnation from rights groups — Stonewall, Britain’s largest LGBTQ charity, said they “trivialise the very real violence committed against us.” Scottish police said Rowling’s comments were “not assessed to be criminal and no further action will be taken,” the Associated Press reported.
Scotland’s leader, Humza Yousaf, told the BBC the newly created offenses “have a very high threshold for criminality.”
“JK Rowling’s tweets may well be offensive, upsetting and insulting to trans people,” Yousaf said, “but it doesn’t mean that they meet a threshold of criminality of being threatening or abusive and intending to stir up hatred.”
Outside Britain, Elon Musk and Joe Rogan were among the high-profile celebrities to critique the legislation. In an episode of his podcast last month, Rogan described the new law as “ridiculous” and incorrectly suggested that it empowered Scottish police to specifically target comedians.
Musk said in a post on X that it was “an example of why it is so important to preserve freedom of speech.”
The billionaire has frequently weighed in on the topic, billing himself as a “free speech absolutist.” In the wake of his quest to remold X into a free-speech town square since buying it in October 2022, research groups have identified a rise in hate speech, antisemitic posts and QAnon conspiracy theories on the platform.
McKerrell echoed Yousaf’s position, saying that neither misgendering someone nor making offensive jokes automatically becomes a criminal offense under the new law. “Within the law, there is a defense for freedom of expression. Explicitly, it says freedom of expression includes the right to be offensive, shocking or disturbing.”
The legal concept of protecting minority groups from hate speech is not new in Scotland, McKerrell said, but the law — passed in 2021 and enacted on April 1 — extends that principle to additional groups of people.
Age Scotland, a seniors charity, welcomed the introduction of age as a protected characteristic, hoping it will give older people confidence to report crimes and deter potential offenders. Stonewall also welcomed the law, arguing that sexual minorities across the United Kingdom are facing “rising hate and escalating violence.”
On Sunday,…
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