Extending Scotland’s Hate Crime Protections to ‘Sex’: Symbolism Without Substance?

This blog is the second in our series, “Gender (in)justice: Views from Scotland”, featuring pieces authored by legal academics at Glasgow Caledonian University. GCU Law has a strong socio-legal research culture, and this blog series draws on our research across diverse legal contexts. This blog series will explore recent legal developments and emerging legal challenges at the intersection of gender and justice in the law of Scotland. By publishing pieces exploring gender justice issues from a Scots Law perspective, we hope to inspire discussion and invite critical perspectives not only among researchers working in the Scottish context, but from our colleagues in the rest of the UK and beyond.   

By Lucy Mackay

Keywords: misogyny; violence against women; hate crime; legislative reform

Extracts from my PhD interviews with Scottish people aged 18-30 who had experienced harassment in public spaces that they believed was, at least partially, due to being perceived as a woman or girl

Few issues have revealed the limitations of relying on criminal law as the primary tool for tackling misogynistic violence more clearly than Scotland’s seemingly endless consultations on hate crime reform. I have followed these developments over the last four years for my PhD thesis: Public Misogynistic Harassment: Situating Harms, Evaluating Criminalisation and Centring the Ideal.

This blog examines the most recent development in relation to this issue: the decision not to proceed with recommended misogyny reforms, but instead to add ‘sex’ to the list of protected characteristics in the Hate Crime and Public Order (Scotland) Act 2021. I argue that this change is not only symbolic, but that its symbolic effect will be one of confusion and exclusion.

Background

In 2021, the Scottish Government convened the Misogyny and Criminal Justice Working Group – led by Helena Kennedy KC. They were asked to investigate whether sex should be added as a protected characteristic to the Hate Crime and Public Order (Scotland) Act 2021, or whether standalone offences were needed.

This work started at a time when societal and political will to tackle misogyny was heightened in Scotland, as it was across the UK. This was due to a number of converging factors: the murder of Sarah Everard and the resulting exposure of Police misogyny; increased understanding of the everyday harassment of women and girls; and a Scottish appeal case which highlighted the inadequacies of the criminal justice system to deal with this behaviour.

My own photos from a vigil set up in remembrance of Sarah Everard in Kelvingrove Park, Glasgow, 13-03-21

The Working Group published a report in 2022, concluding that standalone offences were needed: Public Misogynistic Harassment; Threatening or Abusive Communications to Women or Girls that Reference Rape, Sexual Assault or Disfigurement; and Stirring Up Hatred Against Women and Girls. Alongside this, they recommended a statutory aggravator related to misogyny.

A key motivation cited in the report was that ‘women should know that there is law that is clearly there for them, for when they experience frightening, humiliating, degrading or abusive behaviour’.[1] It was an ambitious and distinctive approach, which went considerably further than recent measures taken elsewhere, such as the Protection from Sex-Based Harassment in Public Act 2023 in England and Wales.

The Scottish Government drafted these offences, opening consultation in 2023. In setting out the rationale for reform, Justice Secretary Keith Brown stated that ‘Baroness Kennedy's report provided a compelling and depressing picture of why action is needed’, and the majority of respondents to the Scottish Government’s consultation agreed. However, in May 2025 - over 20 years after gender was first considered as a hate crime characteristic – the Scottish Government changed course again.

Citing legal complications following the Supreme Court’s decision in For Women Scotland Ltd v The Scottish Ministers [2025], the Scottish Government shelved the misogyny-specific reforms. Instead, they are now moving forward to extend the existing hate crime legislation to protect on the basis of ‘sex’. This would create the offence of stirring up hatred on the basis of sex, and a statutory aggravator related to sex. The stated aim: ‘greater protections in criminal law for women and girls from crimes motivated by malice and ill-will relating to their sex.’

Sex as a Hate Crime Characteristic: The Evidence

This reform would offer – as supporters have indicated – an ‘equality’ of protection under the law for women and girls, given the breadth of other characteristics currently protected. It would also offer the opportunity to collect data on the prevalence of such incidents, which could be valuable. However, is this approach likely to offer greater protection? Scottish women’s organisations, such as Engender and Zero Tolerance have consistently argued that this will not be the case, both in 2021 and again in response to the 2025 proposals. The evidence base begins to demonstrate why.

Currently, reporting data from other jurisdictions that have introduced gender or sex into their equivalent hate crime legislation does not seem to suggest the effectiveness of this approach. Research on Canada finds that ‘sex’ typically comprises 2% of all reported hate crimes, despite self-reporting data suggesting that 22% believe their victimisation was at least partially motivated by their sex. In England, a trial recording misogyny as a hate crime by Nottinghamshire Police Force resulted in only 6.6% of those who had experienced misogyny hate crime reporting it.

For a longer-term example, we can look to New Jersey. Hodge found that between 1999 and 2008, only four gender-bias incidents were recorded - in comparison to 3,521 race-bias, 2,589 religious-bias and 579 sexual orientation bias incidents.[2] Revisiting New Jersey’s bias-incident statistics in 2025, this remains similar with 0.45% of overall bias incidents being coded as ‘anti-female’.

Sex as a Hate Crime Characteristic: The Effect

When considering the potential for similar under-reporting, it is also important to consider who is represented within these small numbers. While women and girls have declining trust in the police to handle crimes committed against in general, Tura et al. also argue that it ‘appears to be universal across cultures’ that racial and ethnic minorities consistently report lower satisfaction and trust in the police. For women who experience multiple forms of oppression, these barriers are even greater. The rigidity of the protected characteristic model compounds this further.

The risk of perpetuating a flattened understanding of how women may experience ‘hate’ is further heightened by choice of ‘sex’ and the choice to interpret this as biological sex (in line with the 2025 Supreme Court judgment). It is important to understand that hate crime operates on a perception basis – it is the offender’s prejudice being policed, not the identity of the victim. Further, in considering the Scottish Government’s explanatory notes, it is clear that they imagine this to police ‘hate’ directed on the basis of gender, not just biological sex.

Despite these caveats about the practical application of the offence, it is clear through the reporting data that this reform will largely be symbolic. Therefore, what does this choice symbolise? I argue that it works largely to confuse, with a likelihood that people will feel they can only report if the behaviour relates directly to their biological sex. I also believe it works to exclude transgender women and men from reporting hate which is directed at them because of their gender (not because of their transgender identity).

This exclusion will also operate in relation to cases of violence against women which make it through to trial and conviction. As noted, this reform would create a statutory aggravator on the basis of sex. This means that where, for example, an assault is committed and there is evidence that the perpetrator’s actions were a result of hatred (or ‘malice or ill-will’, per the legislation) of the victim’s sex, it will be recorded as such, and a harsher sentence can be applied.

This raises a problem: as Walters and Tumath argued back in 2014, ‘the state begins to label some rapists as hate crime offenders and not others’. This therefore signals to individual victims that their cases are more, or less, serious depending on whether an aggravator was attached. This also adds further to the confusion, given the efforts which feminists have gone to over previous decades to promote an understanding as all violence against women being related to gender inequality.

Concluding Thoughts

Therefore, broadly speaking, it is clear that this most recent development represents a significant step backwards from the ambitious plans presented in 2022. Along with this, any urgency for action appears also to have disappeared – a feeling which may be familiar for those working on this issue in other jurisdictions, too.

Of course, this is not reflective of the problem going away. The Netflix drama Adolescence raised significant concerns earlier this year about young men, misogyny and online spaces. In the weeks following its release, the NASUWT reported that female teachers in Scotland face greater rates of physical abuse or violence (49%) than men (36%) and Scotland’s Young Women’s Movement reported that concerns about misogyny were consistently present within their research regarding young Scottish women’s human rights.

This reform not only fails to address these issues but actively perpetuates confusion and exclusion. This being the result of 20 years of working groups, consultations and legislative drafting highlight a need to move away from the criminal law as the solution altogether. Efforts would be better directed in Scotland toward the primary prevention of violence, rather than reactive and punitive measures.

References

[1] Misogyny and Criminal Justice Working Group, ‘Misogyny - A Human Rights Issue’ (2022). 14, 15

[2] J Hodge Gendered Hate: Exploring Gender in Hate Crime Law (Northeastern University Press Boston, 2011)