For those unhappy about the ‘exclusion of women’ from the Hate Crime Bill

Joanna Cherry QC on Twitter: "Good news & excellent choice… "

In response to the suggestion that the Scottish Government is ‘digging its heels in’ against women’s voices with regard to the Hate Crime Bill, stewartb has provided us with this clarification:

‘The Working Group on Misogyny and Criminal Justice in Scotland has been set up to independently consider how the Scottish criminal justice system deals with misogyny. This includes looking at whether there are gaps in the law that could be addressed by a specific criminal offence to tackle such behaviour.”

Source: https://www.gov.scot/groups/misogyny-and-criminal-justice-in-scotland-working-group/

“The group will also consider whether a statutory aggravation and/or a stirring up of hatred offence in relation to the characteristic of sex should be added to the Hate Crime and Public Order (Scotland) legislation by regulation at a future date.”

The group is chaired by Baroness Helena Kennedy QC. She has appointed a panel of six experts with specialisms in Scots law, human rights, women’s equality and perpetrator behaviours relating to gender based violence.”

The Remit of the Group includes but is not limited to:

“Identify whether there are gaps in the existing law and/or where there is a failure to implement existing legislation in a way that protects women and girls. This will include whether the characteristics of sex should be included within the hate crime framework as a statutory aggravation and/or if sex should be added to stirring up hatred offences (subject to the Bill as passed).

“Consider the legal practice in Scotland and internationally that offers the best protection for women and girls and examine how misogyny may be best tackled through a legal lens. “

And on remit it adds: “ … work in partnership to develop a specific definition of misogyny within a Scottish legal context, taking account of behaviours that already fall within criminal law and actions that can be taken out with the criminal law to address women’s experiences relating to misogynistic behaviour or inequality, challenge men’s behaviour and wider societal attitudes.”

For more information, membership of the working group includes but is not limited to:
Baroness Helena Kennedy QC – Chair – Labour Party member of the House of Lords where she is active on a range of human rights advocacy matters. domestically and internationally. She is the author of the book ‘Eve was Framed: Women and British Justice’: a critique of the treatment of women in the British courts

Emma Ritch – Executive Director at Engender, the Scotland-based feminist policy and advocacy organisation. Its aim is “to make women’s inequality visible, and persuade those with power to make positive changes to services, policy, regulation, practices, and laws that negatively affect women.”

And to re-enforce the point if still needed by you or other readers inclined to accept your btl post at face value:

If you are interested in the balancing of judgement on this issue, I strongly advise you to read this from Engender, Scotland’s feminist policy and advocacy organisation:

Source: https://www.engender.org.uk/content/publications/Engender-Parliamentary-Briefing-Hate-Crime-and-Public-Order-Bill-Stage-3.pdf

In so doing you will also note in passing this instance of ‘talking up’ Scotland’s Parliament:

“Parliament has done some of its best cross-party work on complex issues around violence against women. Its Domestic Abuse (Scotland) Act has been hailed as ‘gold standard’ legislation, because parliamentary engagement with the Bill was deeply informed by women’s lived experience of men’s violence. We believe that similar detailed scrutiny is needed to provide adequate protection in respect of women and deeply embedded misogyny and inequality, which is not possible within the timetable available for the Bill.”

Back to the main point, Engender: ‘… welcomed the Justice Committee’s conclusion that “Whilst the arguments are finely balanced, the Committee considers it might be wise to wait until the Working Group on Misogynistic Harassment has reported before Parliament considers legislating to add sex as a hate crime characteristic.”

‘With consensus and momentum behind the need to address the misogyny and hatred toward women there is an opportunity for an ambitious ‘fit for purpose’ approach.

‘Engender therefore urges Parliament to support the Bill’s approach, which leaves it open to Parliament to add a sex aggravator if and when solutions to these problems have been identified. The Misogyny Working Group has committed to reporting on this within a year… ‘

Engender’s view has now been endorsed by the Scottish Government and Parliament. Engender has agreed to participate in Dame Helena Kennedy’s Working Group on Misogyny and Criminal Justice in Scotland.

21 thoughts on “For those unhappy about the ‘exclusion of women’ from the Hate Crime Bill

  1. The Domestic Abuse Bill is now being used against abused women. Abused by men. Anyone can make a malicious complaint, The complaint cannot be dropped even if the abuser complainant wants it dropped. Caroline Flack committed suicide.

    Abusive people use the Law against innocent others. The secret Family Courts. Presided over by men.

    There are now arguments that women cannot be protected by Law because they are not a minority. Even though they are more likely to suffer abuse.

    Women who co habit (the majority) Do not have equal rights with other women (or men), They have to stay in abusive, harmful situations because they are unequal under the Law. They cannot get away. Change the Law. Do something about it. Sticks and stones break bones but names not so much.

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  2. I haven’t looked at analytical jurisprudence or the semiotics of the law in almost three decades, so I’m not in the best position to be teaching legal theory. However, I do understand that sex and gender do not have the same cultural or legal meaning. The correctness of legal facts and rights depends on the coherence of correlation between legal concepts. The concept of “woman” is already well established in law.

    The Hohfeldian Approach to Law and Semiotics
    https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1983&context=umlr

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    1. This is an important point – that “woman’ is a well understood concept in law and there is a long established body of laws relating to women. One of the issues arising from amendments to the Gender Recognition Act, which, remember, is a UK Act passed in 2004, is the demand from some Trans campaigners, to remove or render inoperative, not just the term ‘woman’, but, the legal protections arising from that term.

      The amendments to the Gender Recognition Act were to take account of subsequent developments, such as civil partnerships, same sex marriage, adjusting the procedures for recognising self declared genders. All this is worthy and it is right that it is addressed.

      Sadly, these arguments have been distorted and presented in polarised terms, by the media, by misogynists, homophones, haters of trans people, fringe, but very voluble trans groups, some Heath companies promoting various ‘treatments’. This has led to the pausing of consideration of the amendments. But, it should be noted that since 2004, many thousands have, without fuss, made satisfactory use of the Act.

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  3. I never saw the day coming when I’d be trying to teach legal theory across t’internet. Conflating sex with gender subordinates the legal concept of “woman”, to the legal demands of the minority interests of trans-identifying men. So it lacks any respect for “proportionality”, let alone rational justification. As such, it is perfectly compatible with contemporary British constitutionalism, though not with the principle of equality in law.

    https://www.cato.org/policy-analysis/feminist-jurisprudence-equal-rights-or-neo-paternalism

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  4. “Conflating sex with gender …”? But there is no conflation – as just one example – by this UK government agency is there?

    Source: Office for National Statistics (2019) What is the difference between sex and gender? – Exploring the difference between sex and gender, looking at concepts that are important to the Sustainable Development Goals.

    See: https://www.ons.gov.uk/economy/environmentalaccounts/articles/whatisthedifferencebetweensexandgender/2019-02-21.

    “This article sets out the interpretation of the terms “sex” and “gender”, which the Office for National Statistics (ONS) and UK government bodies will be using to assess how the UK is progressing towards the achievement of the UN Sustainable Development Goals (SDGs).

    “Sex and gender are terms that are often used interchangeably but they are in fact two different concepts, even though for many people their sex and gender are the same. This article will clarify the differences between sex and gender and why these differences are important to understand, especially in research and data collection. How and why sex and gender is important for SDGs and the principle of “leave no one behind” will be considered. It includes the UK government position on these concepts.”

    Yes just one source, albeit a significant one but “Conflating sex with gender …”?

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    1. But the proposed GRA amendments and hate crime legislation do conflate sex with gender-identity, which is different to gender. As has all the public consultation.

      Sex and gender: What is the difference?
      https://www.medicalnewstoday.com/articles/232363

      “Historically, the terms “sex” and “gender” have been used interchangeably, but their uses are becoming increasingly distinct, and it is important to understand the differences between the two.”

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  5. From the perspective of critical realism, which is a contemporary philosophy of science designed to overcome the subjectivity inherent to both tradition positivist science and poststructuralist deconstructions of language, the legal rights of men and women need to correspond to their sex. Which is defined by biology and can’t be changed through medical intervention.

    Critical Realism, Gender and Feminism: Exchanges, Challenges, Synergies
    https://www.tandfonline.com/doi/full/10.1080/14767430.2016.1211442

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  6. Excellent article and synopsis Stewart, I learned more from that than most posts and articles I’d read thus far.

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  7. I appear to be wasting my time here. Stewart is essentially making the same point as myself, i.e. that sex and gender need to be treated differently in both science and law. As confirmed by the ONS paper, which I’m sure I’ve already highlighted on Wings. Perhaps on this blog, as well. Sex certainly should not be conflated with gender-identity, which the proposed GRA amendments and hate crime legislation both do.

    Feminism in Legal Jurisprudence and Social Analysis
    https://www.ukessays.com/essays/sociology/feminism-legal-jurisprudence-social-8682.php

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    1. It has been said earlier that ” …. sex and gender need to be treated differently in both science and law”.

      What about the treating of individuals – that is individual human beings – in international human rights law? I’ve posted on this source here in an earlier thread.

      Source: UN Office of the Commission Human Rights (OHCHR, 2012) Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law

      ‘The case for extending the SAME RIGHTS to lesbian, gay, bisexual and trans- gender (LGBT) persons as those enjoyed by EVERYONE ELSE is neither radical nor complicated. It rests on two fundamental principles that underpin international human rights law: equality and non-discrimination. The opening words of the Universal Declaration of Human Rights are unequivocal: “All human beings are born free and equal in dignity and rights”.’ (my emphasis)

      The OHCHR document adds: “All people, IRRESPECTIVE OF SEX, SEXUAL ORIENTATION OR GENDER IDENTITY are entitled to enjoy the protections provided for by international human rights law, including ….(list) ”

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      1. International human rights law is grounded in the principles of Natural law, and a legal respect for the human genome. These foundational values are under challenge from various political and economic concerns wishing to de-couple bioethics from legal reason, so as to privilege man’s will over biological reality.

        Special Issue “Bioethics, Law and Human Rights: Global Intersections”
        https://www.mdpi.com/journal/laws/special_issues/globalintersections

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  8. P.S. The original GRA was intended to allow individuals to gain legal recognition of their adoption of the opposite gender to their biological sex. The proposed GRA amendments would privilege trans-individuals to define their own sex, which defies medical science, bioethics, and the fabric of existing equality legislation.

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  9. Unfortunately some of the organisations advising govt on equality issues are toeing the line re identity ideology, resulting in doctrine rather than empirical fact holding sway. That should be a matter of concern.
    Wasnt the recent furore over ‘sex’ not ‘gender’ in the rape victim’s right to a female doctor debate which resulted in Andy Wightman leaving the Greens a clue to something amiss?
    There are currently males self identifying as women in women’s prisons in Scotland. That should be a cause for concern.
    CameronB Brodie, thank you for your persistence, it is appreciated.

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  10. There is no reason why sex can’t be included in the HCB while waiting for Baroness Kennedy to deliberate on this issue. Sex is a protected characteristic under the Equality Act 2010. Transgender identity is not, Cross dressing is not.

    Cross dressers are included because a man who attacks a trans woman can claim he thought she was a cross dresser. Then the aggravator would not apply. So cross dressers are added for protection. But now he can just say he thought he was attacking a woman. Women are not protected. So the aggravator does not apply.

    The meaning of misogyny is literally “hatred of women”. If that is not a reason to include it in a Hate Crime Bill what is?

    BTW I read the Engender Report and thought it a very poor basis for legislation. It uses only one example of the inclusion of sex (New Jersey) and concludes that didn’t work too well. There is no indication of the author of the report. My impression is that they have little experience in the field.

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