How is Scotland's new hate crime law going?

"Freedom of speech and belief are at an end in Scotland if the accurate description of biological sex is deemed criminal," wrote JK Rowling this week.

The author was referring to the introduction on April Fool's Day of a law which criminalised the "stirring up of hatred" against various minority groups, as well as streamlining and extending other aspects of hate crime law.

Her objections focused on the inclusion of transgender identity as a protected characteristic given that women, as defined by biological sex, were not afforded specific protection.

Ms Rowling lives in Edinburgh but was abroad when she posted her comments on social media, in which she described ten transgender women as men, and dared Police Scotland to act.

"If what I've written here qualifies as an offence under the terms of the new act, I look forward to being arrested when I return to the birthplace of the Scottish Enlightenment," she wrote.

Scotland's national police force quickly decided that Ms Rowling's posts were not criminal and declined the invitation to arrest her, saying it had received complaints but would not be taking any action.

Perhaps freedom of speech in Scotland was still going strong after all.

If so, it might have come as a surprise to those who had been listening only to critics of the Hate Crime and Public Order (Scotland) Act 2021, including the entrepreneur Elon Musk, the podcaster Joe Rogan and the Prime Minister Rishi Sunak.

Mr Sunak had strongly implied that the law was silencing certain views when he told broadcasters: "We're not going to be doing anything like that here in England. We should not be criminalising people saying common sense things about biological sex."

For clarity, England already has specific hate crime offences relating to race, religion and sexual orientation.

There is also a more general protection from hatred throughout the UK, including on social media, in the Communications Act 2003 which states that it is an offence to send a message which is "grossly offensive or of an indecent, obscene or menacing character".

High bar for criminality

The fact that, so far at least, no one has been criminalised in Scotland for "saying common sense things", might have been less surprising to a parade of lawyers and academics who had warned in advance that the new law was being misrepresented around the world.

"I've not seen any sensible lawyer who thinks misgendering will become a crime tomorrow," wrote Roddy Dunlop KC, Dean of the Faculty of Advocates, on the eve of the act coming into force.

Dr Andrew Tickell, a law lecturer at Glasgow Caledonian University, insisted the legislation had a relatively high bar for criminality, stressing its 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 actually voted against the bill when he was a Conservative MSP (because he objected to its applying in private homes) agreed that it was "fairly safe" in terms of free speech.

"It's not a hate crime under this legislation to misgender somebody," he told BBC Scotland News, adding "even if somebody finds it really upsetting, really offensive, it's not a hate crime because it's not something that a reasonable person would regard as a threat or as abusive."

Others are more concerned. Joanna Cherry KC, the SNP MP for Edinburgh South West, argues that protection in the new law for the belief that biological sex is immutable could and should have been more robust.

Of course the law is not just about the issue of gender. The consultation which led to its introduction was supported, for example, by the Scottish Council of Jewish Communities which said that it enabled "society to signal its abhorrence of prejudice and hatred against identifiable groups."

That support had followed a joint campaign involving the Jewish and Muslim communities which urged Scotland to do more to tackle "the hatred and extremism that affects us all."

Within the Scottish government, there is a deep sense of frustration that so much of this week's public and media debate has focused on the issue of gender rather than the other protected characteristics in the act.

There is no doubt that the intervention of one of the most successful living authors on earth transformed the issue into a global news story but it is also clear that, had ministers chosen a different path, the narrative could have developed differently.

First, the SNP-led government could have proposed including specific protection for women as a group in the law rather than tackling that issue separately.

It could have included a specific free-speech clause relating to the belief that a man cannot become a woman.

It could have taken language in the bill which protects expressions of "antipathy, dislike, ridicule or insult" towards religion, and applied it to related protected characteristics, which include age, disability, sexual orientation, transgender identity and being intersex.

Instead of supporting a criminal threshold for "stirring up hatred" of behaviour that was either threatening or abusive, for those characteristics, it could have required it to be both threatening and abusive (on top of the existing requirement to prove intent).

That's not necessarily to say the Scottish government should have done any of those things - but that the way the bill has been received flows at least in part from its decisions not to do them.

Minister's inaccuracy

Another headache for the government this week was Minister for Victims and Community Safety Siobhian Brown's struggles as she tried to defend the law.

In an interview with BBC News to mark the introduction of the legislation, Ms Brown claimed, wrongly, that it was "passed unanimously" by MSPs in 2021.

The bill did have cross-party support at Holyrood from Labour, the Liberal Democrats, and the Greens but, after five hours of heated debate, a Labour trio of Johann Lamont, Jenny Marra and Elaine Smith joined the Conservatives in voting against it, while the SNP's Joan McAlpine and Alex Neil abstained.

Ms Brown also gave mixed signals about whether or not misgendering would be a crime, flitting between "not at all" and: "It could be reported and it could be investigated. Whether or not the police would think it was criminal is up to Police Scotland."

The minister also repeatedly claimed that the legal threshold for a hate crime was behaviour that was both "threatening and abusive," an inaccuracy that prompted campaigners against the legislation to lodge a complaint with the Scottish government.

Thousands of complaints

If the minister had a torrid week so too did Police Scotland which, as senior officers had predicted, was flooded with thousands of complaints under the new legislation.

Both the force and Humza Yousaf's government had engaged in a widespread publicity campaign, with billboards encouraging people to report hate crimes.

That was a double-edged sword, with the first minister saying on Thursday that he was "very, very concerned" about the "flurry of vexatious complaints."

As well as additional work for a police force already under pressure, the potential of being reported for posting on social media worries even some of those who regard the legislation as reasonably well-drafted.

Warnings about a "chilling effect" on free speech date back at least as far as the publication of John Stuart Mill's famous essay, On Liberty, in 1859.

Prof Adam Tomkins said: "What the chilling effect means is that people feel that they shouldn't say something because they worry about what the potential consequences might be."

In that sense the Hate Crime Act feeds into the culture wars — ideological battles between different groups over morality and identity, as distinct from traditional left-right political struggles over economics.

The strategic question for the Scottish National Party is whether or not it could or should have dodged these wars, putting a sharper focus on bread-and-butter issues rather than on social reforms such as trying to make it easier to change gender.

"On the doorsteps," wrote Joanna Cherry in the National this week, "I hear real anger from constituents who think too much time is spent on virtue-signalling and not enough on the issues they care most about, such as health, transport, housing, and education."

"I wish the post-2014 leadership of the SNP had spent half as much time on advancing the cause of independence as they have on identity politics," she added.

Mr Yousaf has stoutly defended his and predecessor Nicola Sturgeon's approach to these issues.

Referring to the fact that a large number of complaints to police this week related to a speech he had given about racial disparities in Scotland, he said: "I'm not going to let them stop me from continuing to speak out about racism or talk about that fact that we need more diversity in public life."

The first minister is not alone.

Scottish Trans, which advocates for "equality, rights and inclusion" for trans people, is among the organisations supporting both gender recognition reform and the new hate crime law.

But the charity's manager, Vic Valentine, also defended freedom of speech, saying the act would be unlikely to quieten the noise "that can sometimes feel deafening if you are a trans person facing it every day".

There may be more noise to come. The culture wars in Scotland are far from over.

The Scottish government has promised to introduce a separate Misogyny Act to tackle hatred and harassment of women by the time of the next Holyrood elections in 2026.

Although there is considerable support for this idea among women's groups, the devil will be in the detail, and another gender-related flashpoint about the definition of the word "woman" seems highly likely.

On top of that, the Scottish government is proposing to ban conversion therapy, which has been described as "any treatment, practice or effort that aims to change, suppress and/or eliminate a person's sexual orientation, gender identity and/or gender expression".

A public consultation on its plans closed this week, the day after the hate crime law came into force, and is already provoking debate.

A ban has also been discussed in England and Wales, although the UK government left it out of the King's Speech setting out its legislative priorities in November - a reminder that Scotland is not the only place where the culture wars are being fought.

Internal pressure for social liberalisation tends to be more intense in parties of the left than of the right and if the UK emerges from the next general election with a Labour government, party leader Sir Keir Starmer might find that those culture wars are winding their way to Downing Street, whether he likes it or not.