No One Ever Said J. K. Rowling Might Be Jailed for Misgendering
A BBC Radio 4 interview with MSP Siobhian Brown was misrepresented in the UK press, then J. K. Rowling went on a transphobic tear, then Caitlyn Jenner amplified the misinformation, and now we’re doing a story on it.
by Evan Urquhart
First in the U. K. and more recently in the U. S. a spate of headlines have entertained the possibility that current anti-trans activist and former children’s book author J. K. Rowling might be arrested for misgendering trans women.
“JK Rowling could be investigated by the police for misgendering trans people under Scotland’s new hate crime law, an SNP minister has said,” began one story in the Independent, referencing a BBC Radio 4 program on April 1 in which one of the ministers for the Scottish government was interviewed about the legislation, which she has supported.
screenshot from the Independent
Note the wording of the Independent’s second paragraph, above. “Siobhian Brown had previously claimed that misgendering … would not count as a hate crime.”
The “previously” in this case refers to a few moments earlier in the same interview. Presenter Justin Webb began his interview with the member of Scottish Parliament by asking, “Is misgendering a crime under this act?” Brown’s answer? “No. Not misgendering. Not at all.”
The full program is available for streaming on the BBC’s website. The segment in which Webb interviews Brown begins at the top of the third hour. Webb’s first question is whether misgendering could be a crime under Scotland’s new hate crime legislation, which went into effect that same day. In the interview Webb interrupts Brown repeatedly, after the British style. During their back and forth, Brown explains that if a report of a hate crime is made it would be the police’s job to determine if a crime has taken place. Before the end of their exchange, a full transcript of which we’ve included at the end of this article, Brown clarifies that offensive or challenging opinions are not criminal, that the law is merely adding the categories of religion, disability, sexual orientation, and gender identity to existing hate crime language, and that behavior has to be abusive and threatening to be considered criminal.
In the anti-trans press Brown’s comments were widely misrepresented as her having said that misgendering might be considered a crime. Even the New York Times got in on the action, though at a slight remove from the original misinformation, describing the Scottish hate crimes legislation as “sweeping” and speculating that it might have chilling implications for free speech in Scotland.
Soon after the reports began, Rowling posted a thread objecting to the idea of trans women being protected from hate speech. In the thread she named ten individual trans women, and called them men. Four were of criminals. One contained an image of a trans woman activist and former sex worker who had promoted an image set that included knife play.* The other five targeted by Rowling were prominent trans women, including an athlete, a television presenter, and the head of a Scottish rape crisis center.
screenshot from twitter.com
She followed the thread by tweeting, “if what I've written here qualifies as an offence under the terms of the new act, I look forward to being arrested.”
Among those misled, or perhaps pretending to be misled, by false claims that Scotland had made misgendering a hate crime was Caitlyn Jenner, who tweeted, “JK Rowling facing arrest for ‘misgendering’ … absurd! This has gone way too far! You can ‘respect’ people’s pronouns or not. We cannot force or coerce this type of speech with the threats of jail time.”
To reiterate, the only people suggesting that misgendering might be a crime under Scotland’s hate crimes legislation are members of the media, Rowling herself, and other anti-trans activists. Legislators responsible for the law had said the opposite, and according to the same BBC Radio 4 program the text of the law itself explicitly includes “a right to offend, shock, or disturb,” which was included to guard against its possible misuse by authorities.
The effects of all of this, in addition to giving Rowling an excuse to target individual trans women with her disgust and anger, seems to have been to encourage spurious reports of hate crimes, including a false report in the name of Siobhan Brown herself. It’s not yet clear who is behind the flood of reports that have swamped the Scottish police, threatening any ability for the law to come into effect and embarrassing its proponents Whoever is responsible, the flood of nuisance reports has clearly been a boon to those who hate trans people, particularly those determined to prevent the trans community from being protected from hate crimes in Scotland.
CORRECTION: In an earlier version of this story we referred to Siobhian Brown as a “Scottish MP.” Brown is an MSP, a member of the Scottish parliament.
*UPDATE: The day after publication, readers alerted us to the possibility that our language might be interpreted as referring to one of the trans women targeted by Rowling’s tweets as having also been a criminal, and that our characterization of two images reposted by Rowling as “unsettling, violent posts” left out the context that they were posted to advertise her sex work. We have revised that sentence and included a link to the trans woman’s own description of her posts, which Rowling stripped of context.
Here is our full transcript of the portion of the April 1 BBC Radio 4 Interview with minister Siobhian Brown concerning whether misgendering will be a crime under the new Scottish hate crime legislation
Q: Is misgendering a crime under this act?
A: No. Not misgendering. Not at all. Justin, if I may, we respect everybody’s freedom of expression and nobody in our society should live in fear or be made to feel like they don’t belong. So the Scottish government’s committed to building safer communities and living free from hatred and prejudice, and this is what this legislation that comes into place is all about. If I, if I can, this is not a new piece of legislation, stirring up racial hatred has been set in Scots law since 1986, and in England and Wales there’s been similar hate crime laws which include stirring up hatred against race, religion, and sexual orientation since 2006 and 2008. So we are bringing Scotland into line with England and Wales, and adding other characteristics as well.
Q: Yes well its the adding other characteristics. So you’re taking Scotland out of line, aren’t you, with the rest of the UK, and the reason I asked you about misgendering is that there are some people, including critics of JK Rowling, who say it should be included, including one former SNP counselor who said recently of JK Rowling “She’s not entitled to make people feel uncomfortable and to misgender someone.” So just to be absolutely clear, if someone misgenders, in other words calls a trans woman a man, online, a specific individual, you’re saying that is not a crime in your view under this act?
A: Justin it would be a police matter for them to assess what happened, but I do need to reiterate, this act…
Q (interrupting): Sorry just to be clear, so it would be something that someone could complain about, and there would be an investigation.
A: It could be reported and it could be investigated, whether or not the police would think it was criminal is up to police Scotland for that, but this act…
Q (interrupting): Hang on, up to police Scotland, so what would their decision making process be?
A: That would be an operational decision, Justin, and it would not be for me as minister to dictate what the police in an operation would…
Q (interrupting): But they’ve had… so each police officer, not all of them has done it, but each police officer has had two hours of training, on the basis of that you are saying it’s up to them to decide.
A: They have had two hours training, but they’ve also, there’s other things in place with police Scotland, there’s dedicated 24/7 lines for officers if they want to speak to anyone and get guidance on a… there’s been, there’s been a lot of training within the last year and it’s…
Q (interrupting): But does that, does that training - sorry to interrupt - does that training then tell them what it is that they need to base their decision on?
A: Yes, I believe so, because what is happening is…
Q (interrupting): So what is it?
A: Yes, the chief constable last week Justin - if I just may - did say last week that she was comfortable that Police Scotland were ready to enact this legislation today and that training was in place for…
Q (interrupting): So what is it then, that they will base their decision on? Is it intent, is it, is it, um, targeting of an individual, what is it?
A: OK, there’s a very high threshold, which is in the act, which would be up to Police Scotland, and what would have to be said, online or in person, would be threatening and abusive. If you are conveying a personal opinion that is challenging or offensive for example, that would not be, that would not be, I’d say, that would not be…
Q (interrupting): Right well that’s very clear. So it has to be threatening to an individual, and of course there are lots of threats made against JK Rowling and against other women but they don’t come under the terms of this act, do they…
A: Because we’ll be going further for our protection of women through our misogyny bill which will be laid in this parliamentary session… [further discussion on this aspect continues]
Evan Urquhart is the founder of Assigned Media and an incoming member of the 2024-2025 Knight Science Journalism fellowship class at MIT.