In Scotland, online misgendering ‘could be investigated’ under new law

Members of the Scottish Parliament (MSPs) passed the Hate Crime and Public Order (Scotland) Act in 2021, consolidating existing hate crime legislation and creating a new offence of stirring up hatred against protected characteristics, although sex has been omitted in favour of a stand-alone bill designed to tackle misogyny.

Asked whether misgendering someone on the internet was a crime under the new law, Scotland’s minister for victims and community safety Siobhian Brown told BBC Radio 4’s Today Programme: “It would be a police matter for them to assess what happens.

“It could be reported and it could be investigated – whether the police would think it was criminal is up to Police Scotland.”

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The Ayr MSP added: “There is a very high threshold which is in the Act which would be up to Police Scotland, and what would have to be said online or in person would be threatening and abusive.”

Asked why women had not been included in the new legislation, Brown said: “We’ll be going further for the protection of women through our misogyny bill, which will be laid down in parliament.”

Human rights campaigner Peter Tatchell told the same programme the omission of women from the new law was an “astonishing exclusion”.

He added: “The big flaw in this bill is it does not protect women against hate.”

Tatchell also criticised the new law allowing third-party reporting.

He said: “With anonymity being granted, this could open the door to vexatious and malicious complainants who will go after people and use the third-party centre as a way of getting back at people.”

A stirring-up offence on the basis of race has been on the statute book in Scotland since 1986, but the legislation has raised concerns about a potential chilling of free speech.

Prominent critics include author JK Rowling, podcaster Joe Rogan and Elon Musk, the owner of X, formerly Twitter.

The Association of Scottish Police Superintendents (ASPS) also warned of the risk of vexatious complaints.

“If you’re thinking about making a vexatious complaint, if you’re thinking about making a complaint and there’s no merit in that, then do know that the police will take that serious in terms of tackling vexatious complaints, and so I would urge you not to do it.”

The first minister has repeatedly said there is “disinformation” being spread about the bill and what it entails, claiming there is a “triple lock” of protection for speech.

This includes an explicit clause, a defence for the accused’s behaviour being “reasonable” and that the Act is compatible with the European Convention on Human Rights.

The Scottish Police Federation (SPF) has claimed training for officers is not adequate.

Scottish police are being trained to enforce the legislation, although it has emerged more than a third of officers have not yet completed an online course required about the laws.

That has concerned critics, but Yousaf insisted he is “very confident in Police Scotland’s ability in order to implement this legislation in the way it should”.

The act has been a running sore for the Scottish National Party (SNP)-led government in recent years, with a number of changes having to be made before it was passed and the three-year gap before it came into effect.

Critics, many of whom include Rowling, famous for her Harry Potter books, hold gender-critical views, have said it would be weaponised against them.

It is “wide open to abuse by activists who wish to silence those of us speaking out about the dangers of eliminating women’s and girls’ single-sex spaces,” Rowling said in a lengthy online criticism.

“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,” she wrote.

Rowling has argued the new laws do nothing additional to protect women and girls, particularly as the Scottish government did not include women as one of the protected groups, although it has promised future legislation aimed at tackling misogyny.

SNP MP Joanna Cherry has previously said being under police investigation could be a punishment in itself.

Scottish Conservative justice spokesman Russell Findlay – who along with his party has been an ardent opponent of the law – said: “Officers would rather tackle real crimes and keep communities safe, rather than having to investigate malicious and spurious complaints.

“Humza Yousaf should bin his Hate Crime Act and instead divert resources towards frontline policing which is at breaking point.”

Police Scotland Chief Constable Jo Farrell, speaking at a meeting of the Scottish Police Authority board, said the force would apply the Act “in a measured way”.

She added there would be “close scrutiny” of how the legislation is being enforced as well as what reports are being received.