MISGENDERING people or asserting that biological sex is a reality are “not and never can be a hate crime” under new legislation set to come into force in Scotland – despite media reports to the contrary, a law expert and former Tory MSP has asserted.

Fears have been stoked by activists and media outlets that calling people by a gender other than the one they identify with will be criminalised in Scotland on April 1, when the new Hate Crime Act comes into effect.

In one example, sharing a clip from right-wing presenter Julia Hartley-Brewer’s show on social media, the Rupert Murdoch-owned TalkTV reported on “the SNP’s controversial new law which criminalises misgendering”.

One trans rights activist had wrongly claimed JK Rowling may fall foul of the law for misgendering broadcaster India Willoughby, leading the Harry Potter author to write: “If you genuinely imagine I’d delete posts calling a man a man, so as not to be prosecuted under this ludicrous law, stand by for the mother of all April Fools’ jokes.”

However, writing in the Herald, Adam Tomkins – the John Millar Professor of Public Law at the University of Glasgow and a former Tory MSP who served as convener of the Scottish Parliament’s Justice Committee when the Hate Crime Bill was enacted – called out “propagandists on both sides [who] want to turn up the heat”.

He wrote: “The act specifies that ‘discussion or criticism’ of matters relating to sexual orientation, transgender identity, age or disability, is not to be taken as threatening or abusive.

“For example, asserting that sex is a biological fact or that it is not changed just by virtue of the gender by which someone chooses to identify is not and never can be a hate crime under this legislation.

“As such, the new law is going to disappoint those transgender activists who think all acts of misgendering are instances of hateful transphobia, just as it is going to disappoint those culture warriors whose nightmarish vision is that the new law poses the greatest threat to free speech since the abolition of the Licensing Act.”

Tomkins explains that some of the key pillars of the new law, such as its provision criminalising the “stirring up of hatred”, have been around for decades.

He explained: “What the Hate Crime Act does is to take that core idea (stirring up racial hatred) and apply it to a range of ‘protected characteristics’: not just race, but religion, sexual orientation, transgender identity, age and disability, too.

“Even this idea is not new. In England it has been a crime to stir up hatred on religious grounds since 2006 and on grounds of sexual orientation since 2008. Not so in Scotland, however. The English extension of the stirring-up offences to cover religion and sexual orientation did not apply north of the Border.

“One of the things the new Hate Crime Act does is to bring that anomaly to an end. In doing so, however, the new law extends Scots criminal law beyond the English offences. From April 1 it won’t just be race, religion and sexual orientation that are covered: it will be age, disability and transgender identity, too.”

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Tomkins’s intervention comes after law lecturer and National columnist Andrew Tickell also warned about people “peddling fiction about what’s actually in the Hate Crime Act and painting dystopian pictures about the new and terrifying world of repression it will create”.

Tickell wrote: “Telling inflammatory lies about this ­legislation is back in fashion. And what’s ­curious is it is generally critics of these ­proposals who are most determined to ­pretend the Act says things it doesn’t say and criminalises behaviour it doesn’t ­criminalise.”

He went on: “Take aggravators first. We’ve had ­aggravators on the law books for decades … Aggravators don’t create any new ­offences or make any conduct which is currently legal illegal. As the name ­suggests, they’re attached to existing crimes like assault, vandalism or breach of the peace – are recorded, and reflected in sentencing.

“Contrary to what’s been asserted last week, the Act does not say that offences are aggravated by hatred just because the victim feels that way.”

You can find Tomkins’s full article on the Herald website.

You can find Tickell’s full piece on The National website.