A Tory MSP is demanding an immediate apology from Police Scotland after the force confirmed comments made by Harry Potter author JK Rowling as Scotland’s new hate crime laws came into force have not been recorded as a “non-crime hate incident”.

Police had previously recorded remarks made by Scottish Conservative MSP Murdo Fraser in relation to gender identity in this manner.

But after Police Scotland confirmed the famous writer’s comments had not been treated as a “hate incident”, the Conservative politician claimed the force “appear to be making it up as they go along” – with Rowling backing calls for an apology.

She posted on X, formerly known as Twitter: “Again, I trust everyone will be treated the same way if they express themselves similarly.

“Nobody should have a ‘Hate Incident’ logged against them for accurately describing, or asserting the importance and reality, of biological sex.

“We must all be equal under the law.”

A non-crime hate incident is recorded when an incident does not meet the threshold for a crime but is perceived to be “motivated (wholly or partly) by malice and ill-will towards a social group”, according to Police Scotland guidance.

With regards to Rowling’s comments on social media, where the author misgendered a number of trans people, and effectively challenged police to arrest her, a spokesperson for Police Scotland stated: “The circumstances have been assessed and will not be recorded as a non-crime hate incident.”

And although transgender people are amongst those given new protection under the Hate Crime and Public Order (Scotland) Act, which came into force on Monday, the force had said earlier that Rowling’s posts were “not assessed to be criminal”.

Mr Fraser, who had a non-crime hate incident recorded against him after he likened identifying as non-binary to identifying “as a cat” now wants an apology from Police Scotland.

Complaints about comments Scotland’s First Minister Humza Yousaf made in a speech four years ago are also not being recorded as a “hate incident”, Mr Fraser said.

The Tory hit out at Police Scotland, saying: “They have taken a different approach to comments made by the SNP First Minister to those made by an opposition politician.

“It is hard not to conclude that Police Scotland has been captured by the SNP policy agenda and that this is a decision that reeks of political bias.”

Mr Fraser added: “I hope the Chief Constable will contact me urgently with an immediate apology for recording a hate incident against me and confirming all records in relation to it have been destroyed.”

Community safety minister Siobhian Brown said earlier how remarks are dealt with is an “operational matter” for Police Scotland.

She spoke out amid the controversy over the implementation of the Act, which consolidates existing laws on hate crime and extends protections offered against racial abuse to other groups of people.

While stirring up racial hatred was already a crime, the new legislation extends this protection to other people on the grounds of age, disability, religion, sexual orientation and transgender identity.

However critics, including Rowling and Elon Musk, the owner of X, have voiced concerns about its impact on freedom of speech, while others have raised the prospect of vexatious or malicious complaints being made under the legislation.

Community safety minister Siobhian Brown said a ‘fake’ complaint under Scotland’s new hate crime laws had been made to police in her name (Jane Barlow/PA)

And Ms Brown told how a false complaint under the legislation had been made in her name.

The minister said she had been “surprised” to receive a call from Police Scotland about a complaint she was said to have made on Monday, the day the legislation came into force.

Speaking on BBC Radio Scotland’s Good Morning Scotland programme on Wednesday, she said: “Obviously this was a fake complaint that someone had done anonymously in my name and gave my office number.”

She stressed overall that behaviour would have to exceed a “very high threshold” for a crime to be committed under the new laws.

She said that for something to be considered a crime the action would have to be “threatening and abusive, with the intention to stir up hatred towards an individual and that this would cause this individual to have fear or alarm”.

Ms Brown continued: “We’ve been very clear within this Act this is not about restricting freedom of expression, it is protected.

“This is particularly about being threatening or abusive, to cause fear or alarm to individuals who have these protected characteristics.”

But the Tories – who are to launch a petition to repeal the legislation – warned it was being “weaponised on an industrial scale”.

Scottish Conservative justice spokesman Russell Findlay said the laws were now the “biggest-ever burden on Scotland’s police officers”.

The Tory MSP said: “Within 24 hours of it coming into force, Police Scotland has been inundated with complaints, many of them spurious nonsense from activists with an axe to grind.

“At this rate the number of hate complaints will overtake the number of real crimes that are recorded each year.

“Hardworking officers want to protect our communities, not waste precious time investigating every single perceived hate crime.

“The Scottish Conservatives warned this would be disastrous for the police and have a chilling effect on free speech.

“That’s why we’re launching a petition to give the people of Scotland the chance to send a message to Humza Yousaf and the SNP, and tell them to repeal this law.”