Hate crime: These laws offer no help to women while increasing their alarm

Women are used to being ignored. Pushed around. Overlooked. Underestimated. An afterthought. But when it comes to hate, we get it all. And then some. Which is why when the original hate crime legislation was mooted with misogyny not included, (some) women were rightly up in arms. 

The proposed law appeared to offer more protection to a man who occasionally dresses up as a woman than it did to an actual woman whose body is not just some performative costume she pulls on for the feels. 

Sex is the only protected characteristic within the Equality Act not to be included in the hate crime legislation. At the time of the passage of the bill in 2021, the then justice secretary Humza Yousaf argued that including “an aggravation for ‘sex’ rather than ‘gender’ could exclude trans women i.e. if a trans woman was attacked because they were perceived to be a biological woman rather than because they were trans”. 

That rather missed the point, in my view, that if an offence is aggravated by prejudice where an offender has based their aggression on their perceived understanding of the identity of their victim, and that then being one of the specified protected characteristics, that would then impact on how the court dealt with the crime. 

So the natural conclusion from the then justice secretary’s argument is that if the offence was committed against a trans woman who the aggressor believed to be a biological woman, then, under the new law, in which sex is not included, that would not qualify as an aggravator and would therefore not be reflected in the sentencing. Why this then became an argument to include transgender but to exclude sex is still beyond me.

But then, as a clear afterthought and in the face of protest, we were told that actually, the hate experienced by women was so all pervasive [who knew] that it demanded a separate crime of misogyny. And while this might be a welcome acknowledgement of the reality of women’s lives, it hardly needs to be said, but we are still waiting.

Instead, aptly enough on April Fools’ Day, we get a new hate crime law that doesn’t mention the hate that is the wallpaper to most women’s everyday lives. And yet women will, no doubt, be writ large as the focus of vexatious complaints.

The taunting has already begun. Women are already fearful. And the SNP MP Joanna Cherry KC has warned that she has “no doubt” the law “will be weaponised by trans rights activists to try to silence, and worse still, criminalise women who do not share their beliefs”.

JK Rowling is a prime target. Activists have told her she should purge her social media accounts, to which she has robustly retaliated: “If you genuinely imagine I’d delete posts calling a man a man, so as not to be prosecuted under this ludicrous law, stand by for the mother of all April Fools’ jokes.” 

And if you need further evidence of where this is all going, then just look to the ‘hate’ scenarios that Police Scotland have been rehearsing – a fictional woman called ‘Jo’ who has a huge social media following and who talks about sex being immutable and there only being two genders. Remind you of anyone, M’lud? 

You could almost believe that this is a government that [whisper it] hates women. I await the knock at the door.

And then cast your mind back to the passage of the bill when Professor Adam Tomkins, then an MSP and convener of the justice committee, expressed his alarm at the furious backlash to an amendment that sought to exempt criticism of transgender identity. The onslaught left him “disturbed” and a “little afraid”. The amendment was removed.

You need only recall Patrick Harvie saying there were “shockingly overt homophobic and transphobic amendments” within the hate crime bill. And remember a similar critique of his around the forensic examination legislation in which the former Labour leader, Johann Lamont, successfully campaigned for victims of rape to be allowed to specify the sex of their examiner following such an assault. SNP activists later described the move as a ‘dog-whistle’ for ‘anti-trans campaigners’. 

And then also consider the impact of Nicola Sturgeon’s video appeal on social media for people worried about transphobia not to leave the party and her later claim that critics of gender recognition reforms were likely using it as a shield to hide their transphobia, misogyny, homophobia and even racism.

This is the toxic and heavily one-sided environment in which the hate crime legislation, ironically, now lands. A place where trans right activists have been so emboldened by all of the above, they boast about shouting down women meeting to talk about sex-based rights. And they think they are the progressives.

Enough has been opined about how the hate crime act will and won’t work. There has been much mischief-making about Police Scotland’s Hate Monster campaign and that third party reporting centres can be based in sex shops, mushroom farms and ceramic studios. There have been misleading headlines about comics being censored and the idea promulgated that middle-class dinner parties could end with guests frogmarched to the local cop shop for daring to misspeak. Much of it is froth. 

What bothers me is the chilling and cumulative effect that various pieces of legislation, including this one, have had on women basically because MSPs were either too afraid, too craven, too party political, or too far behind the knowledge curve, that they boxed themselves so far into a corner on what it means to be a man or a woman, that when it came to the census, the forensic examination bill, the representation on public boards bill, the hate crime bill, the rules about transgender prisoners, the use of puberty blockers on children, the debate around trans inclusion in sport, and so it goes on, they were utterly paralysed by their own ignorance and fear, that they, bar some notable exceptions, were unable to enter the fray on anything that smacked of sex and gender. Even when it came to changes in the law. And yet that is what they are elected for.

Shame on them.

I believe the penny is finally starting to drop. But while we have a first minister who speaks about the rise in misogyny and the need to tackle toxic masculinity, but still presides over a change to our laws that offers no succour to women, while at the same time increasing their alarm, you could almost believe that this is a government that [whisper it] hates women. I await the knock at the door.