Don’t feel too encouraged by police leniency with JK Rowling

Police Scotland, who are responsible for enforcing Humza Yousaf’s Hate Crime Act, have found no criminality in a series of tweets posted by JK Rowling. On Monday, the day the Scottish law came into effect, the author, a gender-critical feminist, tweeted about a number of men who call themselves women – and insisted they were still men. In doing so, she said that, if this was a crime, she would ‘look forward to being arrested’ under the Act, which carries prison sentences of up to seven years. I would say this took some balls on her part but such metaphors are probably best avoided given the subject in hand. 

Responding to the news, Rowling tweeted:

In stating that there was nothing criminal in Rowling’s tweets, Police Scotland have brought a smidgen of much-needed clarity. The SNP’s victims and community safety minister Siobhian Brown told the Today programme on Monday that Scots might be investigated by the police for ‘misgendering’. It can only be taken from their Rowling announcement that ‘misgendering’ – which is to say correctly stating a person’s biological sex – is not a criminal offence, at least not in the terms on which the Harry Potter author did it. Rowling has set an important precedent in terms of policing and public relations. If her ‘misgendering’ words aren’t criminal, Police Scotland cannot be seen to hold ordinary punters without Rowling’s celebrity or money to a different standard. 

There are two perspectives on today’s development from those supportive of the legislation or at least dismissive of its critics. Legal academics in Scotland have been loudly bemoaning the public and the press for failing to understand the provisions of the Act. These academics will no doubt point to Police Scotland’s decision as evidence that concerns were overblown. This would be a mistake. Far from misapprehending the Act, free speech campaigners, journalists and ordinary citizens have been left to cobble together an interpretation of one of the most poorly communicated pieces of legislation to emerge from the Scottish parliament. Not only did Siobhian Brown’s comments contribute to this but the police themselves, with Police Scotland’s website even defining a hate crime to encompass ‘insults including name-calling’. For a law often defended on the grounds that it sends an important signal, its signal has been singularly garbled. 

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The other perspective is that of those activists who backed the Hate Crime Act either because they believe in criminalising speech acts as a matter of principle or because they saw this legislation as an opportunity to enforce the new orthodoxy on sex and gender. For these people, the law has failed its first test. They don’t want to hear donnish musings on how Police Scotland’s handling of Rowling’s tweets proves that criticism of the Act is overblown. They wanted Rowling to be arrested. They want the criminal law to punish those who disagree with them. In a sense, this is almost understandable. If you sincerely believe that saying transwomen are not women will drive young people to suicide or represents a statement of genocidal intent, it makes sense that you would seek to have such speech restricted. 

This is a self-inflicted wound. The sensibles of progressive identity politics have grown too afraid of denunciation and ostracisation to challenge hardline trans activists on their hyperventilating analysis and catastrophising rhetoric. Those least amenable to compromise and pragmatism have been allowed to set the terms of the trans rights movement. You need only look at the sharp change in public attitudes over recent years to see how disastrous that has been for gender identity politics. Few political movements have quietly shifted the Overton window so far in their direction only to shove it all the way back – and then some – once they started speaking plainly about their objectives. 

While it’s reassuring that JK Rowling isn’t going to Cornton Vale, supporters of free expression should not rest on their laurels. There is still plenty of scope for the Hate Crime Act to do serious damage to liberty, not least the fact that it allows Scots to be prosecuted for the words they speak inside their own homes. There are going to be people not as fortunate as Rowling, who either lose their liberty or, even in the case of those investigated but ultimately not charged, have their lives turned upside down. This will include, indeed is more likely to include, those whose opinions are much less sympathetic than Rowling’s. The idea that people should be able to speak freely and hatefully about, say, sexual orientation – also a protected characteristic in the Hate Crime Act – is probably now as much a minority view as the proposition that racist speech, though morally repugnant, should not be a matter for the courts. When this happens, it will fall to those of us who cling to free-speech liberalism to make ourselves Twitter’s bastards of the day by defending the right of bad people to say bad things.

The point of free expression is that it’s not only for nice, reasonable, liberal people like JK Rowling, but for everyone, and perhaps especially for those who hold the most unpopular views, since those are the views it is easiest and most tempting to suppress. That is why the Hate Crime Act has to be repealed and why other ‘stirring up hatred’ offences should meet the same fate.