JK Rowling’s latest intervention on trans rights is unnecessarily provocative

Editorial: When those with influence cite untypical examples of trans people involved in heinous crimes, the more likely it is that a trans person minding their own business will be abused or assaulted

‘Misgendering’ is a polite word for a very ugly and hurtful assault on the dignity of another human being, and it should be curbed (PA)

It is not that often that an author invites the police to come and arrest them, and certainly not one as famous as JK Rowling. Yet Ms Rowling has felt so moved by the new Hate Crime and Public Order (Scotland) Act that she is inviting a form of media martyrdom.

In common with many others, albeit not with her profile and social media reach, Ms Rowling feels strongly that, in the words of her latest viral posting on X (formerly Twitter): “Scotland’s Hate Crime Act comes into effect today. Women gain no additional protections, of course, but well-known trans activist Beth Douglas, darling of prominent Scottish politicians, falls within a protected category. Phew!”

Ms Rowling then goes on to identify various high-profile cases of trans people who’ve committed crimes, mingling them with others who are simply prominent. Ms Rowling states that those she identifies are “men, every last one of them”, and that: “Scottish lawmakers seem to have placed higher value on the feelings of men performing their idea of femaleness, however misogynistically or opportunistically, than on the rights and freedoms of actual women and girls.”

It certainly seems that, by her own witness, Ms Rowling wants to stir things up and her remarks are, obviously, unnecessarily provocative. Police Scotland was forced to take a stance, saying she would not be arrested. “The comments are not assessed to be criminal and no further action will be taken,” it said.

This is for the best: it would be unwise for authorities to act, if only because, though caustic and disdainful, her social media posts were intended primarily to attract attention and trigger debate about the rights of women, rather than to encourage vile verbal or physical attacks on trans people simply trying to live their lives. Or, leastways, to do that directly.

It is, though, broadly true that the more that people in positions of power and influence challenge the very concept of trans men and trans women, and cite egregious and untypical examples involving rapists and other criminals, the more likely it is that some random trans person minding their own business is given a mouthful of abuse or roughed up at a bus stop.

Younger trans people are obviously at even greater risk of persecution by their peers. “Misgendering” is a polite word for a very ugly and hurtful assault on the dignity of another human being, and it should be curbed.

Comedians who deride the trans community and politicians who assert with needless force that “a man is a man and a woman is a woman and it is just common sense”, as Rishi Sunak did last year at his party conference, should know better. Words have consequences, even if they are not immediate and direct.

It is right, in that context, that Mr Sunak should have found himself embarrassed if not shamed at Prime Minister’s Questions a few weeks ago when he made, in front of the mother of murdered trans teenage Brianna Ghey, his usual childish gibe about Sir Keir Starmer not knowing what a woman is. The media fashion for asking politicians if a woman possesses certain types of genitalia has, mercifully, passed, at least for the time being.

Westminster SNP MP Joanna Cherry, who is a prominent lawyer as well as a feminist, has suggested a sensible way for her colleagues in Holyrood to balance the right to debate serious issues raised by the liberation of trans people while discouraging, to the point of prosecution, the kind of discriminatory abuse and actions that have long been rightly outlawed in matters of, for example, race.

The new Scottish law, which has the best of intentions in terms of protecting a vulnerable and much-maligned and misunderstood minority, should follow other legislation on hate speech and include a clause that makes clear that the prohibition on hateful speech doesn’t prevent robust and sometimes even offensive debate about issues of public policy. Many people, of all backgrounds, have questions about how trans rights may be reconciled with, for example, the feared loss of “safe spaces” for women, about prison accommodation, and about participation in elite sport.

One example suggested by Ms Cherry that could usefully be followed features in the UK laws relating to public order, which contain an explicit “freedom of expression” defence, such that, for the avoidance of legal doubt, none of the clauses about incitement would “prohibit or restrict discussion or criticism of religions or the beliefs or practices of adherents of religions; expressions of antipathy, dislike, ridicule, insult or abuse towards those matters; proselytising, or urging of adherents of religions to cease practising their religions”, applied to religions generally, particular religions, and other belief systems.

In other words, anyone – and not just celebrated writers – should be free to discuss the very concepts of trans rights, gender identity, biological sex, the use of expressions such as cis, and the medical care of children without fear of being locked up.

The line should be drawn where legitimate debate veers into encouragement for verbal and aggravated physical assaults on individuals who are “different”, and not sexual predators or other criminals.

Of course there will always be difficult cases, and every debate should be conducted in temperate terms, but, as with all such areas of the law, the courts should be able to develop a solid corpus of case law to supplement statutes.

In time, the Scottish legislation should be revisited to make it better balanced, and to cover misogyny and sexism as well as the rights to free expression, albeit the latter are also guaranteed under the 1998 UK Human Rights Act.

Trans rights will continue to be hotly debated, unforgivably turned into a battleground for our never-ending culture wars, and the subject of bigotry and extremism, but any law in this area must balance hard-fought, cherished and sometimes conflicting rights – or else risk ridicule and failure.