By Jacob Mchangama

Should J.K. Rowling face criminal charges for misgendering someone on social media? In March, transgender British TV personality India Willoughby reported the “Harry Potter” author to the police for posting that “India didn’t become a woman. India is cosplaying a misogynistic male fantasy of what a woman is.”

Willoughby was about a month too early, though, since Scotland’s new Hate Crime and Public Order Act wouldn’t come into full force until April 1. On that day, Rowling posted a thread on X criticizing the law as being “wide open to abuse” and taunting Scottish authorities to arrest her. Prudently, the Scottish police have chosen not to investigate Rowling for her X thread, but there are still reasons to fear the act’s consequences for the climate of public debate in Scotland and beyond.

The act criminalizes a wide range of speech “stirring up hatred” based on certain characteristics, including “age, disability, race, religion or…perceived religious affiliation, sexual orientation, transgender identity and variations in sex characteristics.” A person commits an offense if they communicate material or behave in a manner “that a reasonable person would consider to be threatening or abusive,” with the intention of stirring up hatred based on protected characteristics. Convicted offenders could face up to seven years in prison.

Critics have lambasted the act for being overly vague and likely to instill a climate of fear and self-censorship. The Association of Scottish Police Superintendents predicted a huge increase in complaints, including people seeking to “score points” against opponents. This has already been the case, as Scottish police received around 3,800 complaints within 48 hours of the law’s enactment.

Those who share Rowling’s views have faced a harsh backlash for their statements on transgender rights, including threats and cancellation campaigns. They fear that the act will result in the state taking sides in debates around deeply polarizing issues of gender and sex, where calls for silencing particular viewpoints are all too frequent.

The U.S.-based Human Rights Campaign, a long-time LGBTQ advocacy group, demanded that the New York Times “stop consistently platforming anti-LGBTQ extremists” after it published a column by Pamela Paul titled “In Defense of J.K. Rowling.”

Private and cultural institutions have often complied with this pressure. In 2020, Reddit banned a subreddit community of radical feminists opposed to trans-rights activism. The following year, University of Sussex philosophy professor Kathleen Stock felt compelled to resign after protests against her views on transgender issues.

Under the new Scottish law, however, Rowling and others worry that ongoing efforts to suppress the full range of views on gender in the public sphere will be enshrined into law. Instead of braving “cancellation” attempts, offenders could face police investigations.

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