Scotland’s contentious new hate crime law may impact free speech
The Hate Crime and Public Order (Scotland) Act makes it an offense to stir up hatred with threatening or abusive behavior based on characteristics including age, disability, religion, sexual orientation and transgender identity. Racial hatred was already banned under a law dating from 1986.
The maximum sentence is seven years in prison.
The legislation does not specifically ban hatred against women. The Scottish government says that will be tackled by a separate forthcoming law against misogyny.
Scottish Minister for Victims and Community Safety Siobhian Brown said the new law would help build “safer communities that live free from hatred and prejudice.”
“We know that the impact on those on the receiving end of physical, verbal or online attacks can be traumatic and life-changing,” she said. “This legislation is an essential element of our wider approach to tackling that harm.”
Critics argue that the law will have a chilling effect on free speech, making people afraid to express their views. The legislation was passed by the Scottish Parliament almost three years ago but has been delayed by wrangling over its implementation.
Veteran human rights activist Peter Tatchell said the law was well-intended but vague, relying on “subjective interpretation” of what constitutes abuse and allowing people to report alleged offenses anonymously.
The Scottish National Party-led government in Edinburgh says the legislation includes free speech protections, including a specific guarantee that people can still “ridicule or insult” religion.
“The threshold of criminality in terms of the new offenses is very, very high indeed,” First Minister Humza Yousaf said. “Your behavior has to be threatening or abusive and intended to stir up hatred.”
“Harry Potter” author J.K. Rowling, who has called the law “ludicrous,” is among critics who say it could be used to silence what are known as “gender-critical” feminists, who argue that rights for trans women should not come at the expense of those who are born biologically female.
In a series of posts on X, formerly Twitter, Rowling referred to several prominent trans women as men. Misgendering could be an offense under the new law in some circumstances.
“I’m currently out of the country, but 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,” Rowling wrote.
Scottish National Party lawmaker Joanna Cherry, another critic of the law, said that “if you are a woman, you have every right to be concerned.”
“Biological sex is not included as a protected characteristic in the act, despite women being one of the most abused cohorts in our society,” she wrote in The National newspaper.
Meanwhile, police organizations are concerned the law will trigger a flood of reports over online abuse.
David Kennedy, general secretary of the Scottish Police Federation, said the law could “cause havoc with trust in police.” And the Association of Scottish Police Superintendents wrote to lawmakers to express worry that the law could be “weaponized” by an “activist fringe.”
The law is the latest case of Scotland's semi-autonomous government, which is led by the pro-independence SNP, diverging from the Conservative U.K. administration in London. In 2022, the Scottish Parliament passed a law allowing people to change their legally recognized gender through self-declaration, without the need for medical certification.
The gender-recognition legislation was vetoed by the British government, which said it conflicted with U.K.-wide equalities legislation that, among other things, guarantees women and girls access to single-sex spaces such as changing rooms and shelters.