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Siobhian Brown, the SNP’s community safety minister, initially stated that misgendering would “not at all” fall foul of the legislation but then admitted it would be for the police to decide.
She told BBC Radio 4’s Today programme: “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.”
However, she said there was a “very high threshold” of criminality in the legislation of being “threatening and abusive”, and people would not be prosecuted for expressing a “challenging or offensive” opinion.
Justin Webb, who conducted the interview with Ms Brown, was found in February to have broken impartiality rules by calling trans women “males” on air.
The BBC upheld a complaint against the Today presenter after he said “trans women, in other words, males” on the Radio 4 programme last August.
A listener complained that the comment amounted to Mr Webb giving his personal view on a controversial matter in breach of the BBC’s requirements on impartiality.
On Monday, protesters gathered outside the Scottish Parliament to demonstrate against the Act’s introduction, but Mr Yousaf claimed it was needed thanks to “a rising tide of hatred against the people because of their protected characteristics”.
“Unless your behaviour is threatening or abusive and intends to stir up hatred, then you have nothing to worry about in terms of the new offence that has been created,” he told Sky News.
Pressed on Rowling’s views, he said the police would investigate if a crime had been committed and the Crown Office would decide “if there is a sufficiency of evidence to charge”.
Jim Sillars, the SNP’s former deputy leader, has launched a campaign to “resist the Hate Crime Act and campaign for its repeal”. He said: “Humza Yousaf’s Hate Crime Act inflicts a deep wound on the face of Scottish society.”
Police Scotland did not reveal how many reports of crime it had received on the first day the act came into force.
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