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Sex (or gender?) as a hate crime: why the rush?

The push to adopt a gender neutral definition of “misogyny” as a hate crime with amendment 87B to the Domestic Abuse Bill (being debated this afternoon in the House of Lords) is another attempt at the political erasure of sex.

Why the rush when the Law Commission is working on this?

In October 2018 the government asked the Law Commission to conduct a comprehensive review of how hate crime laws work and how they could be reformed to work more effectively. The Law Commission is a statutory independent body whose job it is to keep the law of England and Wales under review and recommend reforms. The goal of this extensive process is to ensure that the law is fair, consistent and effective.

In September 2020 they published a 544 page consultation paper and invited comments. The section on sex and gender is 43 pages long. It raises several questions and makes provisional proposals. The consultation period ran to the end of December and they will make final recommendations later this year “so that parliament is equipped with an independent opinion, informed by extensive public consultation”.

But meanwhile there is a rush to “make misogyny a hate crime” by adding amendment 87B to the Domestic Abuse Bill

The amendment doesn’t use the words misogyny or women at all, but “hostility based on sex or gender”. It is an “All Lives Matter” approach that does not make hatred against women as its focus. 

When you ask about where this language comes from, one of the answers you get is – it is compatible with the language used by the Law Commission. But the Law Commission is still dealing with the consultation responses it has received. There is no need to jump the gun and translate its initial proposal directly into legislation.

Furthermore, as we argued in our response to the Hate Crimes consultation the law commission’s use of “sex or gender” is very confused. According to the consultation document, the Law Commission thinks the UK government has described sex and gender as two distinct concepts. It says: 

The UK government notes that sex is assigned at birth and refers to “the biological aspects of an individual as determined by their anatomy, which is produced by their chromosomes, hormones and their interactions”.

The UK government’s description of gender notes that “a person’s gender may not match the sex they were assigned at birth” and refers to “a social construction relating to behaviours and attributes based on labels of masculinity and femininity”.

Law Commission

This is not the UK government’s definition of sex and gender at all. Rather it is based on an article by two members of staff at the Office for National Statistics, focused on the UN’s sustainable development goals (which use gender to mean sex). 

They give no citations for the formulation that gender is a “social construction relating to behaviours and attributes based on labels of masculinity and femininity”. When I asked them about it in 2019 they said these definitions were agreed and discussed with the Government Equalities Office.

In fact gender is not defined in UK law at all. 

The Office for National Statistics (ONS) was recently told by the High Court that their idea that sex is an “umbrella concept” that includes “lived sex” or “self identified sex” is wrong. It’s not up to the ONS to redefine what sex means to make it more inclusive.

The Law Commission’s proposal also prioritises inclusivity over clarity, saying: 

Gender is more inclusive than sex, indeed it encompasses sex; a person’s biological sex is one means by which they might define their gender.

ONS

But the Office for Statistics Regulation has recently emphasised:

Producers should be clear about definitions or terminology they use, and these should be harmonised to be consistent and coherent with related statistics and data where possible. The terms ‘sex’ and ’gender’ should not be used interchangeably in official statistics.

OSR

They give the example of criminal justice statistics highlighting that

variation in the way data about sex is captured across the system…means it is not possible to know what definition of sex is being captured. This can, in turn, place limitations on how some criminal justice statistics can be interpreted and used.

OSR

Why not just measure crimes of violence, abuse and sexual harassment of women? 

Beyond these definition arguments there are other real problems with introducing “misogyny” as a hate crime. Instead of measuring classes of crime which involve sexual and domestic abuse against women, which would be statistically straightforward (as long as the sex of victim is recorded), it creates an additional category where crimes are judged as aggravated if the perpetrator is perceived as acting based on hostility towards the victim on the basis of sex. 

It relies on perception of motivation. And as Professor Liz Kelly notes there can be other motivations for sexual crimes such as superiority, entitlement and indifference: 

Neither Dominique Strauss-Kahn nor Julian Assange were motivated by hate in their sexual exploitation of women, rather both acted from a sense of male entitlement and impunity.

Professor Liz Kelly

The Fawcett Society told the Law Commission that this would forge an artificial distinction between “misogynistic” and “non-misogynistic” sexual offences or domestic abuse against women. One proposal that the Law Commission therefore makes is to “carve out” sex crimes and domestic abuse from the misogyny hate crime in terms of making it a separate aggravated offence. This is what the Law Commission proposes:

Women’s Aid argued to the Law Commission that “women” should be specifically recognised because a wider term such as “gender” fails to acknowledge that women are disproportionately the victims of abuse. Women’s Aid suggested that the inclusion of a gender-neutral term in hate crime laws may be more harmful than helpful. 

Adding “gender” reduces clarity about sex

A previous version of Stella Creasy’s amendment from June 2020 only talks about hostility based on sex.  In fact it specifically and helpfully states that sex has the same meaning as in Section 11 of the Equality Act. 

The development over time of amendment 87B shows how adding “ gender” pushed out the clarifying definition of sex  (since there is no respective clear, consistent, coherent definition of gender).

Stella Creasy makes clear on Twitter why the clarity of “sex” has been given up for the ambiguity of “gender”; it is for the benefit of males who identify as women. She says the motivation for someone attacking a woman is the same as  someone attacking a male person whose gender identity makes them a woman (as the law commission says – who adopts the “behaviours and attributes of femininity”). 

This comes dangerously close to saying the motivation is “because of what she was wearing”

And there is no need for any of this. As with the census questions there is already a separate hate crime characteristic based on “transgender identity”.

The most useful part of the original amendment, which should have been retained, is clarifying that for the purpose of this Act, and its guidance , “female” means sex, and sex (including man/woman, male/female) has the same meaning as in the Equality Act

Is it possible that Stonewall’s sudden interest in misogyny was what led to the Equality Act definition of sex being dropped from the amendment?