“I can’t wait to be arrested myself,” challenged JK Rowling. For several years, the successful novelist, creator of "Harry Potter", has regularly published virulent messages against transgender people on social networks. A posture which has earned her, since Monday April 1, the center of attention as the controversial “Hate Crime and Public Order Act” comes into force in Scotland, where she lives. The objective of this text: to strengthen a 1986 law which criminalized incitement to racial hatred by opening it to discrimination targeting the age, disability, religion, sexual orientation or even the transgender identity of a person. individual.

In detail, "any incitement to hatred, whether verbal, physical, or written, whether it takes place online, in public or in the private sphere, can now be considered a crime", punishable by a sentence of up to seven years in prison, explains Sarah Pedersen, professor of communications and specialist in women's engagement in politics at Robert Gordon University in Aberdeen.

Proposed in 2020 by the government of Nicola Sturgeon, then leader of the independent Scottish National Party (SNP), the text aimed to provide a reaction to the report of a former judge showing an increase in acts of hatred in the country. Finally adopted by the Holyrood regional Parliament in 2021, “it will be an essential element in our plan to fight discrimination”, promised Siobhian Brown, Scottish Minister for Victims and Community Protection, in a press release on Monday. “We know that physical, verbal or online attacks can have a traumatic and life-changing impact on those who receive them,” she insisted.

But if this legislation is widely presented by the Scottish executive as a tool for protecting minorities, it is also the subject of much criticism, with some fearing that it threatens freedom of expression.

“A recipe for disaster”

As early as 2020, around twenty artists wrote an open letter to the Scottish government in which they said they were concerned about the consequences of this law for their artistic freedom. For his part, the leader of the Scottish Conservatives, Douglas Ross, castigated the text in mid-March, presenting it as "a recipe for disaster", "dangerous" and "inapplicable".

“What is especially worrying, particularly in conservative ranks, is the way in which the implementation of this law has been presented,” underlines Sarah Pedersen. "The police have assured that they will take into account all complaints, without exception. And if, after the investigation, they conclude that there was no crime, the incident will still be recorded as a 'non-criminal hate incident'. In other words, there will remain a trace which could harm the person concerned,” she explains. “There is therefore a significant risk that this opens the door to a form of self-censorship because people will be afraid of reprisals.”

“For part of the population, hearing that the police will take all complaints into account goes down quite badly,” continues the specialist. “A few weeks ago, it deplored a lack of resources. How will it be able to collect these new files if it is already overwhelmed?”

Police unions have in fact repeatedly mentioned their fear of being overrun by complaints. There is "enough hatred online to keep every police officer in Scotland busy", quipped the Association of Scottish Police Commissioners. “I am really afraid that mistakes will be made, the officers are already overwhelmed, we have not obtained additional resources or personnel to enforce this law”, denounced David Kennedy, general secretary of the Scottish Federation from police.

Saying he was "very proud" of the text, Scottish Prime Minister Humza Yousaf said he was "very confident in the ability of the Scottish police" to implement it "as it should". He also denounced on several occasions the "misinformation" which, according to him, reigns around this legislation, recalling that the text expressly insists on "the importance of the right of expression".

Transidentity under debate

“At the same time, the text, through the reaction of JK Rowling, reopened the debate around the question of transidentity, a very polarized subject in Scotland,” explains Claire Breniaux, specialist in Scottish political life at the University of Burgundy. Franche-Comté.

For several years, the novelist has become the spokesperson for "gender critics", a feminism movement which rejects transidentity and affirms that sex is an immutable biological fact - a position which has often caused her to be accused of transphobia.

The author of the "Harry Potter" saga thus estimated that "the legislation is wide open to abuse by activists who want to silence those of us who denounce the dangers of eliminating spaces reserved for women", in a series of messages on X where she cites cases of transgender people convicted of rape or sexual assault on women or young girls.

“It is impossible to accurately describe or address the reality of violence and sexual violence committed against women (...) unless we have the right to call a man a man,” she continued, before concluding: “Freedoms of expression and belief are under threat in Scotland if the precise description of biological sex” is seen as a criminal offense.

Stand out from the UK

This latest controversy recalls the debate sparked, in 2022, by another Scottish law, the Gender Recognition Reform Bill, which aimed to allow the recognition of a change of gender without medical advice. This, also supported by the separatists, ended up being adopted by the regional Parliament before being censored a few weeks later by the British government. This is partly what precipitated the surprise resignation of Prime Minister Nicola Sturgeon.

“Similarly, if this new law divides public opinion, it also allows the independence party in power to distance itself from the conservative British government by presenting itself as a liberal and progressive government,” analyzes Claire Breniaux. A way to continue to assert oneself, believes the specialist, while the desire for independence is today at half mast.

British Prime Minister Rishi Sunak also gave his support to JK Rowling on Tuesday, ensuring that no one should be prosecuted for “stating simple facts about biology”. “We believe in freedom of expression in this country, and the Conservatives will always protect it,” he assured the Daily Telegraph.

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