Failing to protect women from hate crime

Introduction

It has been reported that Scottish ministers are unlikely to bring forward new legislation on misogyny before the 2026 election. The alleged reason is fear that this will generate more controversy over the issue of self-ID, and the definition of “woman” in the run-up to the election. Ministers are on record  as suggesting the current case before the UK Supreme Court, narrowly concerned with the effect of a Gender Recognition Certificate under the Equality Act 2010, is holding up work on misogyny legislation. This is unconvincing.

A more likely reason for delay is the complexity of the proposals of the Misogyny and Criminal Justice Working Group set up by Scottish ministers in 2021. As a result, it has found itself faced with a dauntingly complex package, with potential for significant resource implications and controversy around the proposed new offences of misogynistic harassment and misogynistic behaviour – all quite apart from any issues related to the meaning of ‘sex’.   As For Women Scotland have pointed out, their court case has been ongoing since 2022. There was no mention of it as a relevant issue in the Scottish Government’s consultation on a draft misogyny bill, based on the working group’s proposals, which closed on 2 June 2023.

As a measure of the delay here, the Scottish Government has yet to make public what respondents to its consultation said. A Freedom of Information (FOI) response (dated February 2025) shows that the consultation analysis report was shared with Cabinet Secretary for Justice Angela Constance in April 2024, and when asked about publication, Ms Constance stated “we should definitely do so soon”. The FOI response refused to disclose the consultation responses or analysis of them, on the grounds that the Scottish Government would finally be publishing them in late March or early April 2025, almost two years after the consultation closed. There is no sign of them yet. All reference to what consultees said on any aspect of the bill, including the new offences, is redacted from the released internal papers.

The path not taken

When embarking on its current path in 2021, the Scottish Government rejected a relatively simple (albeit more limited) option to provide women with some protection in hate crime law; by adding a new aggravator for sex. Instead, it chose a much slower and more elaborate alternative process. Astonishingly, the government now appears to be blaming some of those who argued for a simpler approach for the consequences of its decision to reject that.

The remainder of this blog revisits the arguments, and suggests a way to make at least some practical change without waiting several more years.

The argument for adding a ‘sex’ aggravator: keeping it simple

During the passage of the Hate Crime and Public Order (Scotland) Act 2021, the Scottish Government resisted adding sex as a protected characteristic, in favour of developing proposals for a free-standing offence of misogyny. 

At the time, we challenged the Scottish Government’s arguments for excluding “sex” as a protected characteristic. In the light of this week’s reports, we are sharing some of our analysis again. 

Key points

In 2020-21, we made these main points:

• The priority is the addition of “sex” to Part 1 of the Act, which creates “aggravators” based on prejudice, where something is done which would already be an offence. 
• Offences are given a greater priority for investigation by Police Scotland if a hate crime aggravator is attached. This means that offences motivated by sex-based prejudice (for example, malicious communications, public order offences) are less likely to receive police attention, compared to offences based on other forms of prejudice.
• For as long as the current approach to legislating for hate crime continues, failing to include sex on the list of characteristics covered by aggravators means it is left out of police training and public information on hate crime. This sends the message, however unintentionally, that this is a more acceptable motivation for committing offences, compared to those recognised in law.
• Lord Bracadale’s original review of hate crime legislation considered the arguments put to it against adding sex as a protected characteristic, and rejected those: it recommended adding sex.
• Organisations close to the Scottish Government who opposed adding sex claimed this could be actively harmful, but failed to spell out the rationale for this assertion during the Bill process.
• The minister in charge of the Bill, Humza Yousaf, argued that he had been told that women’s organisations “at the coalface” were opposed to adding sex as a characteristic. Our analysis of FOI responses, however, showed that front-line organisations were more likely than not to support adding sex as a characteristic, even if only as temporary measure until something more could be done.
• Hate crime aggravators apply based simply on the perpetrator’s perception, so taking this step involves no need to get involved in questions about how to define the sex of the victim, or the relevance of how they perceive themselves. Sex can be used as the term in law with its ordinary meaning. The Act already includes a ‘transgender identity’ aggravator.

Section 12 of the Act allows ‘sex’ to be added as an aggravator in hate crime law, using a simple piece of secondary legislation. There is still time to make such an Order before the next election. We suggest this power is now used.

Misogyny and Criminal Justice Working Group view: the argument against a sex aggravator

To our earlier analysis can now be added the Misogyny and Criminal Justice Working Group’s subsequent arguments against adding sex as a characteristic in hate crime law.

The Working Group based their objections wholly on the belief that their proposed approach of a standalone misogyny offence was better. The report includes nothing which repeats, let alone fills out or explains, suggestions made during the passage of the Bill that adding sex as an aggravator would be actively harmful.

The report says only:

We do not recommend the addition of Sex as a characteristic to the Hate Crime and Public Order Act (Scotland) Act 2021 as we feel that misogyny is so deeply rooted in our patriarchal ecosystem that it requires a more fundamental set of responses. While not all misogynistic behaviours will be captured by either the Aggravation or the proposed new offences in this Act, the shift in thinking and the reappraisal of certain forms of speech and conduct will contribute to a resetting of cultural norms.” (page 7)

…there are some vital elements of the Act and the rationale behind it which means it is a poor fit for women:

• Women are not a minority.
• There is no pervasive male-sex equivalent to misogyny. Adding ‘sex’ to the Hate Crime and Public Order (Scotland) Act 2021 would not create law for women, as women, reinforced by international human rights frameworks which are clear that there should be a presumption against gender-neutral laws (CEDAW, Istanbul).
• It fails to recognise that misogyny is experienced by the vast majority of women and the prevalence of violence against women, some of which is still normalised by our society (pages 55-6)

The Report argued that types of offence which are inherently misogynistic should be excluded from an aggravator, to avoid having to badge some cases of rape, for example, as misogynistic, and some not. They suggested ‘carving out’ crimes, including where the domestic abuse aggravation can be applied, and many sexual offences. The Scottish Government consultation set out a list of offences that it suggested should be outside the scope of a misogyny aggravator, for this reason. It appears at least possible that general provisions in the Hate Crime Act may allow this point to be dealt with also, as part of amending it to add sex.

What about a ‘stirring up hate’ provision

Section 12 of the Act allows sex to be added to the list of aggravators in Part 1 without requiring it to be added to the list of characteristics covered by Part 2 of the Act, which covers offences of “stirring up”.

Part 2 raises questions related to freedom of expression, which we still believe the Act does not address well. The Scottish Government rejected Bracadale’s suggestion that where a new characteristic was added to stirring up, specific tailored defences protecting freedom of expression should also be added. Instead it relied on generic wording. Its consultation on a draft misogyny bill repeated the same general approach. We do not think sex should be added to Part 2 without more careful consideration of what protection is needed for freedom of expression. It is also not obvious that any more could be added just using secondary legislation.

Conclusion: the road to nowhere is paved with good intentions

It was the choice of the Scottish Government not to make ‘sex’ an aggravator alongside others in the 2021 Act. Instead it took the advice of organisations close to it, who preferred a more wide-ranging, more elaborately theorised and, they would argue, more ambitious approach. One concern of those organisations was that any simpler fix would mean the more comprehensive approach they preferred would be parked. But the signs now are that women still face a long wait for anything to change, at all.

If the Scottish Government has now decided it has no immediate appetite for bringing forward legislation on the model of the more complex misogyny proposals it commissioned, it should urgently revisit adding sex as an aggravator under Part 1 of the Hate Crime Act, possibly with carve-outs for certain types of offence, as a first step.

Right now, it appears that perfectionism on the part of legal reformers, anticipated controversy around new offences quite separate from any issues related to the current court case, and quite probably concerns about new costs, are preventing women from having the most basic legal protections, and thus access to police attention, under hate crime law, that other groups have now had for years.

The Scottish Government should take a first, simple step towards correcting this situation, and drop the chutzpah of blaming those it ignored when the Act was passed for its own protracted inaction.