Nicola Sturgeon has been accused of blocking changes to Scotland’s hate crime laws that would protect feminists’ freedom of expression on trans issues.
The Feminist group for Women Scotland (FWS) says Ms Sturgeon, as first minister, forced the then justice secretary, Humza Yousaf, to withdraw changes to the legislation in its final parliamentary stages in 2021.
Susan Smith, one of the group’s administrators, said they would provide certain free speech protections for feminists who argue that gender is a physical binary characteristic that cannot be changed.
As the legislation came into force on Monday, JK Rowling published photos of 10 well-known transgender people and mocked their claims that they were women. The Harry Potter author later dared Police Scotland to use the new laws to arrest him.
Ms Smith said Mr Yousaf, who replaced Ms Sturgeon as first minister, had broken a promise that he and a colleague would be involved in producing training materials for police to deal with such situations.
She told BBC Radio 4’s Women’s Hour that this was because she thought “giving these examples in instructions to the police would offend the trans lobby”.
In 2021, Mr Yousaf oversaw the passage of hate crime legislation in Holyrood, which was supported by almost all SNP and Labor MSPs. But the law did not come into force until Monday as Police Scotland said it needed time to train.
The legislation creates the criminal offense of “incitement of hatred,” expanding the scope of a similar offense based on racial harassment that has been on the statute book for decades.
This crime is being expanded to include abuse based on age, disability, race, religion, sexual orientation or transgender identity.
MSPs raise concerns over exclusion of women
But an amendment to add gender to the list of protected characteristics was voted down, despite cross-party MSPs raising concerns about why women were excluded.
Ms Smith argued that those accused of committing hate crimes under the law face living in the shadow of a police investigation for two years, even if they are later cleared of any wrongdoing, “so the process becomes very much punitive”.
“And all of this could have been prevented because in the very beginning there was an attempt to make changes to freedom of expression in the final stages of the bill,” he added.
“There was a backlash on Twitter. Nicola Sturgeon intervened directly and got Humza Yousaf to withdraw them.
“He then promised the committee, me and Lucy Hunter Blackburn, that we would be involved in drafting guidance and providing examples so the police could understand if someone like JK Rowling started a topic like this on Twitter.
“We could get real-world examples that police could use in training. But what happened was that he broke those promises because ministers decided that giving these examples in the guidance given to the police would upset the trans lobby.”
In early 2021, Mr Yousaf tabled an amendment to the bill aimed at addressing concerns that feminists who criticize gender equality would be criminalized for arguing that trans women are men.
This was later withdrawn and a roundtable discussion on the issue was held instead, convincing other parties to withdraw their amendments on the same issue.
The Final Act includes a section stating that discussion or criticism of transgender issues “shall not be considered threatening or harassing on the sole grounds that the conduct or material contained therein.”
However, this is weaker than the freedom of expression protection given to discussion or criticism of religious beliefs and practices, or expressions of antipathy, dislike, ridicule or insult.
A senior SNP MP said the final text of the Bill ignored recommendations by judge Lord Bracadale to include a “protection of freedom of expression clause” in the official review of hate crimes.
Joanna Cherry KC, MP for Edinburgh South West and Rowling’s ally, tweeted: “Her recommendations for the offense of inciting hatred on the basis of transgender identity were not followed up by the Scottish Parliament, but they were about respect for religion”. The relevant amendments were voted and rejected.”
She added: “For these reasons, many of us have legitimate concerns about this aspect of the legislation, its weaponization against women who do not believe in gender identity theory, and we would like to exercise our right to explain why. Like JK Rowling did.”
On Tuesday, Rowling responded on social media to claims that she will be remembered by history as a “bigoted children’s book author.”
He said: “With the same old nonsense again… If your friend History thinks that women do not deserve gender-based rights, that healthy children should receive medical treatment, and that freedom of expression should be eliminated, I am not interested in being his friend. Sounds like a huge jerk.
Ms Sturgeon’s spokesman referred a request for comment to the Scottish Government. The Scottish Government has been approached for comment.