How Scotland’s controversial hate crime law triggered JK Rowling, Joe Rogan and Elon Musk

LONDON — It was no April Fool’s joke.

Harry Potter author-turned culture warrior J.K. Rowling kicked off the month with an 11-tweet social media thread in which she deliberately misgendered 10 transgender women — and dared Scottish police to arrest her.

Rowling’s intervention came as a controversial new Scottish government law, aimed at protecting minority groups from hate crimes, took effect. And it landed amid a fierce debate over both the legal status of transgender people in Scotland and over what actually constitutes a hate crime.

Already the law has generated far more international buzz than is normal for legislation passed by a small nation’s devolved parliament.

U.S. podcaster Joe Rogan and X owner Elon Musk — who boasts more followers on his platform than there are people living in Scotland — are among those to have waded in alongside Rowling.

The row, Musk said, is “example of why it is so important to preserve freedom of speech.”

“This bill is about protecting people against a rising tide of hatred we see far too prevalently in our society,” Scottish First Minister Humza Yousaf countered Wednesday.

‘Stirring up hatred’

Laws meant to protect Scots from hate crimes on grounds of race, disability, religion, sexual orientation and transgender identity already exist.

But the Scottish government, led by the pro-independence Scottish National Party, argues they don’t go far enough.

The law adds a new crime of “stirring up hatred” against groups with protected characteristics, including on the grounds of age — and echoes an offense that already exists in a law on racial hatred in place since 1965.

Under the bill, someone behaving toward, or communicating material to, an individual in a way that could be considered, by a “reasonable person,” to be “threatening or abusive” could face a maximum penalty of seven years in prison — but only if it’s found they intended to “stir up hatred” against a protected group.

Backers say that’s a bar even higher than the 1965 racism law, which already sees few prosecutions.

The Harry Potter author tested the fences by describing several transgender women — including prominent activists, public figures and some convicted sex offenders who self-identified as women — as men. | Jeff J Mitchell/Getty Images

Yet the law’s detractors argue forcefully that the law could stifle free speech and force Scotland’s already-stretched police to deal with a deluge of reports on a new offense.

The inclusion of transgender identity under the new rules sparked the ire of activists already angry with the Scottish government’s separate, and ill-fated, bid to make it easier for people to legally change their gender through self-identification.

They point out that women are not listed as a protected group, although the Scottish government has promised a separate law on misogyny in the future.

And that’s where Rowling comes in. The Harry Potter author tested the fences by describing several transgender women — including prominent activists, public figures and some convicted sex offenders who self-identified as women — as men. 

“Freedom of speech and belief are at an end in Scotland if the accurate description of biological sex is deemed criminal,” Rowling warned.

“I’m currently out of the country, but if what I’ve written here qualifies as an offense under the terms of the new act, I look forward to being arrested when I return to the birthplace of the Scottish Enlightenment,” she added.

Rowling was in part responding to the Scottish government minister Siobhan Brown, who told the BBC it would be a “police matter” to assess if misgendering someone on the internet was a crime. | Dia Dipasupil/Getty Images

Rowling was in part responding to the Scottish government minister Siobhan Brown, who told the BBC it would be a “police matter” to assess if misgendering someone on the internet was a crime.

Police Scotland confirmed the next day that no action would be taken against the author, despite complaints.

Free speech warriors

Regardless, the law has fast become a lightning rod for some of the world’s best-known free speech warriors.

“You see that wild shit in Scotland where they’re targeting comedians with hate crime laws?” Joe Rogan, the world’s most popular podcaster, asked his guests in a recent episode, as he seized on claims — swiftly denied by Police Scotland — that officers would be monitoring for hate speech “through public performance of a play.”

Musk approvingly shared a post from Malaysian right-wing influencer Ian Miles Cheong who claimed the law would see people who “show someone a spicy meme” on transgender people or “mass migration” locked up.

Closer to home, the footballer-turned pundit Ally McCoist railed against the legislation too —arguing he and 48,000 other fans would likely be breaching the law while watching his beloved Rangers take on arch-rivals Celtic this Sunday. Scottish football — and the rivalry between Celtic and Rangers in particular — has long been plagued by sectarian hatred, which the Scottish government has tried to combat with previous legislation.

U.K. Conservative Prime Minister Rishi Sunak rowed in behind Rowling this week, talking up Britain’s “proud tradition of free speech.” | Daniel Leal/AFP via Getty Images

Always keen to try and give the SNP-Scottish government a bloody nose, U.K. Conservative Prime Minister Rishi Sunak rowed in behind Rowling this week, talking up Britain’s “proud tradition of free speech.” His Westminster government has long battled the Scottish administration over protections for transgender people.

‘Protecting people’

The law poses a real test for Scotland’s First Minister Yousaf, who served as justice secretary when it first passed in 2021 and now presides over its coming into force.

Though a majority of lawmakers from all Holyrood parties except for the Scottish Conservatives backed the bill at the time, it had a rocky path to becoming law, and was amended in the process to toughen its freedom of speech provisions following a backlash.

Yousaf has spent the week giving the plan the hard sell — and was himself targeted Tuesday by racist graffiti near his home.

Other Scottish government ministers have decried “misinformation” around the bill, taking aim at Musk and Rogan. Supporters say the law is unlikely to lead to many new prosecutions, except for the most serious cases, due to its high bar for criminality.

For her part, Rowling’s welcomed the decision not to prosecute her — sparing the Scottish police one hell of a test case.

But she’s unlikely to keep quiet, and is already warning that others who share her views must be “treated equally under the law” — even if they lack the multi-millionaire’s cultural or financial clout.