Unintended Consequences: How a Hate Crime Law Deepened Divisions

The streets of Edinburgh witnessed a heated debate this weekend, reflecting the ongoing discussions on social media, in legal settings, police stations, and Scottish politics.

Last week, Scotland implemented the Hate Crime and Public Order Act, a law that has sparked controversy as it now includes transgender identity as a protected characteristic under hate crime legislation.

Scottish First Minister Humza Yousaf emphasized the importance of the Hate Crime Bill in Scotland, noting that approximately 18 hate crimes are reported daily in the country. When the bill was passed in 2021, Yousaf, who was then the Justice Secretary, highlighted the government's estimated figures on hate crimes.

He stated that the passing of this significant Bill sends a powerful message to victims, perpetrators, communities, and society as a whole. The legislation serves as a clear indication that crimes driven by prejudice will be taken seriously and will not be tolerated by authorities.

Supporters of the law believe it will protect the transgender community, while critics argue it may limit free speech and women's rights. The debate between the two sides continues both online and offline.

In the first week after the law was put into effect, a feminist group called "Let Women Speak" held a rally in Scotland's capital to protest the legislation. A small group of transgender rights activists counter-protested, with both groups exchanging loud insults while being separated by metal barriers and a strong police presence.

Despite the ongoing debate, the bill has been implemented, presenting challenges for lawmakers, sports regulators, and employers due to the complexities surrounding transgender rights and their intersection with women's rights.

As tensions rise, the discussion has become highly polarized and has attracted the attention of public figures like JK Rowling, Elon Musk, and Joe Rogan, all known for weighing in on contentious cultural issues.

So what does the law mean, and why has it sparked outcry?

Transgender rights counter-protesters traded shouts with those participating in the Let Women Speak rally.

Transgender rights counter-protesters traded shouts with those participating in the Let Women Speak rally.

Jane Barlow/PA Images/Getty Images

Before the bill was passed by Scottish lawmakers, existing laws in the United Kingdom already made it illegal to stir up hatred based on racial identity. The new legislation expands these laws to include hate crimes against characteristics such as age, disability, religion, sexual orientation, transgender identity, and differences in sex characteristics.

Biological sex is not considered in this legislation. The government plans to present a separate bill addressing misogyny to the Scottish parliament in the future.

Sign for the NHS National Health Service outside a pharmacy on 24th August 2022 in London, United Kingdom. (photo by Mike Kemp/In Pictures via Getty Images)

Sign for the NHS National Health Service outside a pharmacy on 24th August 2022 in London, United Kingdom. (photo by Mike Kemp/In Pictures via Getty Images)

Mike Kemp/In Pictures/Getty Images

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According to Susan Smith, the director of For Women Scotland, she believes that this creates an "inequality" within the law. She explained to CNN that having certain characteristics singled out can elevate or provide protection to some individuals while others may lack this benefit.

Another issue raised by opponents of the Hate Crime Act is the perceived lack of clarity regarding what actions could be considered a violation under the new law. In Section three, it is stated that it is an offense to engage in behavior or share material that could be seen as threatening or abusive by a reasonable person, with the goal of inciting hatred.

According to Smith, the threshold for determining what is considered "threatening" is much higher compared to what is deemed "abusive." He also noted that perceptions of what constitutes abusive behavior can vary greatly from person to person.

Those convicted under the new law could face up to seven years in prison, and/or a fine.

Online arena

Siobhan Brown, Scotland’s Minister for Victims and Community Safety, caused confusion about whether misgendering someone online would be considered a crime, making the implementation of the law more complicated.

At this point, Rowling, the famous author of Harry Potter who has become a strong critic of certain gender beliefs, intentionally misgendered a few transgender women online and openly challenged the police to arrest her.

Police Scotland has confirmed that they will not be investigating Rowling's posts as a criminal offense. First Minister Yousaf mentioned to the BBC last Wednesday that he was not surprised by this decision. He stated that despite her comments being offensive, upsetting, and insulting to trans people, the authorities have chosen not to charge Rowling.

“But it doesn’t mean that they meet a threshold of criminality of being threatening or abusive and intending to stir up hatred,” he said.

British author J. K. Rowling waded into the online debate.

British author J. K. Rowling waded into the online debate.

Angela Weiss/AFP/Getty Images

A spokesperson from the Scottish government assured CNN that the law allows for the expression of controversial, challenging, or offensive views. It also does not aim to limit criticism or vigorous debate, as the right to freedom of expression is protected under the Act.

Vic Valentine, who serves as the Scottish Trans Policy and Public Affairs officer at Equality Network, believes that the law strikes a good balance in terms of protecting free speech.

"It is difficult to comprehend why anyone would believe that threatening or abusive behavior or speech, with the intent to incite hatred towards individuals based on their identity, should not be considered a criminal offense," they shared with CNN.

However, 25-year-old Scottish transgender student Lucy (who preferred to remain anonymous due to ongoing online harassment) expressed her lack of reassurance with the new law.

She mentioned that abuse towards trans people is sadly common and even promoted at times, especially on social media platforms like X. She believes that this trend will persist despite any new laws being implemented.

This is not the first instance where Scotland has diverged from the rest of the UK in order to create more progressive transgender laws.

In January, the British government blocked Scotland’s proposed reforms to the UK-wide Gender Recognition Act 2004. This act allows people to apply for a legal gender change. Scotland wanted to make it easier for transgender individuals to self-identify without needing a medical diagnosis or certificate.

According to Lucy, this situation has only made things worse. She believes that if the self ID debate had not started, there would not have been as much hateful rhetoric. Lucy thinks that some people will use the new law as a reason to speak negatively about trans individuals, viewing it as a form of protest.

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Concerns have been raised by the Scottish Police Federation about the ability of officers to handle an increase in hate crime reports. They mentioned on X Sunday that they felt overwhelmed by the number of complaints.

Police Scotland did not confirm reports from the media about thousands of hate crime incidents being reported in the week following the implementation of the law. A spokesperson mentioned to CNN that the data is currently being collected and will be shared with the public once it is ready.

In an article published in Scottish newspaper The Courier on Saturday, Yousaf expressed that critics of the law should not overstate its effects with unfounded fears. He further stated in an interview with the PA Media news agency later that day that there are individuals spreading false information deliberately, referring to them as "bad actors."

Scotland's new law has sparked heated debates online, drawing the attention of global public figures to the issue.

The US Capitol building is seen in the background as people attend a LGBTQ + Pride event in Washington, DC, in June 2021.

Erin Scott/Reuters

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Police Scotland recently had to address false claims made by influential figures such as Joe Rogan and Elon Musk. They denied allegations that officers were instructed to target actors, comedians, or any specific groups under a certain Act.

On March 19, Elon Musk reposted comments from Malaysian far right commentator Ian Miles Cheong. Cheong claimed that police officers in Scotland were being trained to focus on social media posts containing content considered "threatening and abusive."

Musk shared it on X, stating that it shows the importance of protecting freedom of speech. Police Scotland, on the other hand, called it "inaccurate media reporting and commentary" in their response.

Despite being directly impacted by Scotland's new law, individuals like Lucy may not feel comfortable speaking out publicly about their experiences.

"I feel pretty hopeless about the way gender is discussed in society," she shared with CNN. "I've decided to step back from those conversations. Many of my trans friends feel the same. We simply want to focus on living our lives."

Editor's P/S:

The Hate Crime and Public Order Act in Scotland has ignited a polarizing debate, exposing the complexities and tensions surrounding