A video claiming Scots could face seven years in jail if they misgender someone has gone viral across social media, even being shared by tech billionaire and X owner Elon Musk.
A post including the clip, produced and presented by American former TV presenter and political commentator John Stossel, received 35.6 million views on the X platform.
Musk shared it on his account, adding “This is crazy”. His post was seen more than 35 million times.
A new law in Scotland threatens you with seven years in jail if you misgender someone.
Ferret Fact Service looked at this claim and found it False.
Evidence
Stossel’s video features several laws and policies around the world that he claims restrict free speech, including in the US, Canada, Brazil and Scotland.
He states “Scotland recently banned misgendering” and claims that calling a trans woman “a man could get you seven years in jail”.
The social media post on his account promoting the video states: “A new law in Scotland threatens you with seven years in jail if you misgender someone”.
What is Scotland’s new hate crime law?
The Hate Crime and Public Order (Scotland) Act came into force on 1 April 2024. It was the result of a review of Scotland’s previous hate crime legislation by a senior Scottish judge, Lord Bracadale.
Various bits of existing legislation were brought together under the new law, which also extended protections for vulnerable groups, including transgender people.
Under the bill someone can be prosecuted for offences called “aggravations”. This is when an offence is committed where the perpetrator either demonstrates or is motivated by prejudice towards one of the protected groups. In the legislation this is described as “demonstrated malice and ill-will”.
Protected groups under this legislation are race, colour, nationality, or ethnic or national origins, age, disability, religious group, sexual orientation, transgender identity, or being intersex.
Is misgendering a crime under the law?
The most controversial part of the act has been the offence of “stirring up hatred”, which is the part referred to in Stossel’s video.
In the clip, he states that you can be prosecuted if “a ‘reasonable person’ views the speech as ‘insulting’ and ‘likely to result in hatred’”.
This is misleading.
There is an offence in Scotland called “stirring up hatred”. The new act extended existing protections on race, colour, nationality, ethnic or national origins and disability to include transgender identity, being intersex, age, religion and sexual orientation.
Under this part of the act, there are different thresholds for when an offence is committed.
For stirring up hatred based on race, colour, nationality or ethnic or national origins, a crime would be committed if a person shared material or behaved in a way that “a reasonable person would consider to be threatening, abusive or insulting”. This would need to be intended to or be considered by a reasonable person to “result in hatred being stirred up against such a group” This is the definition mentioned in the Stossel video.
However, for a crime to be committed linked to hatred against transgender identity along with age, disability, sexual orientation, or being intersex the bar is higher.
A person’s behaviour would need to be reasonably considered “threatening or abusive” for a crime to be committed, rather than simply insulting.
Misgendering would only be considered a hate crime if it was done in a way that a “reasonable person would consider to be threatening or abusive” and was “intended to stir up hatred against a group of persons”.
According to Adam Tompkins, a law professor and former Conservative MSP, “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”.
The maximum sentence for an offence under the act is seven years, which would only be used for the most serious breaches of the legislation.
Ferret Fact Service verdict: False
The new hate crime law in Scotland does not threaten people with seven years in prison for misgendering someone. The video produced by John Stossel claims you can be prosecuted for stirring up hatred if “a ‘reasonable person’ views the speech as ‘insulting’ and ‘likely to result in hatred’”. But the bar for an offence related to transgender identity requires a person to be considered “threatening or abusive”, not just insulting.
Ferret Fact Service (FFS) is a non-partisan fact checker, and signatory to the International Fact-Checking Network fact-checkers’ code of principles.
All the sources used in our checks are publicly available and the FFS fact-checking methodology can be viewed here.
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Main image: Elon Musk speaks with Lt. Gen. Richard Clark, Superintendent of the U.S. Air Force Academy, during the Ira C. Colorado, 2022. Credit: Trevor Cokley
