‘Scrapping Misogyny bill over Supreme Court ruling unconvincing'

The Herald Scotland

03-05-2025

His comments come after the Scottish Government claimed yesterday that the 'implications' of a judgment on the legal definition of a woman in equalities legislation meant ministers are unable to proceed with the bill aimed at tackling misogyny.
The proposed Misogyny Bill aimed to provide protection for women and girls at risk of gender-based violence in Scotland, with new laws against misogynistic harassment and behaviour, stirring up hatred against women and girls and protections from abusive communications.
However, ministers have now said there is "insufficient time" for the bill to be finalised by May 2026 following a Supreme Court judgment last month which concluded that the terms 'woman' and 'sex' in the Equality Act 2010 'refer to a biological woman and biological sex'.
Before this judgment, the proposals aimed at tackling misogyny had faced serious delays as well as additional scope being added to the plans as time went on.
Ministers have previously said that five new laws could be created from the proposals.
Dr Tickell understands there may have been a lack of parliamentary time for the bill to be finalised by next year and he accepts there were most likely further delays due to the controversy it attracted.
However, the legal academic does not think the impact of the Supreme Court judgment is a convincing reason to drop the proposals as he said judges were answering a "narrow question" in terms of this judgment.
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Dr Tickell told The Herald: 'It was a month or so ago, I think they said they were pausing the bill on the basis of the Supreme Court case.
'That's very unconvincing because the Supreme Court case was, as Lord Hodge said, about a narrow question which is about sex purely for the purposes of the Equality Act in the context of people with a gender recognition certificate.
"The court was clear that it wasn't making a global definition.
'So it's really, perversely in a way, feeds into the wider presentation of what the judgment means and, in this case, it's almost the Scottish Government presenting it as something more broad than it is because it doesn't read across straightforwardly to criminal law at all."
The legal academic pointed out that the judgment is not 'the final legal word on the definition of sex in all contexts'.
He added: 'If that's your understanding of what the Supreme Court Judgment meant then this might make more sense but actually in the realms of say hate crime law, though there are some shared vocabularies that are used, we are just in a different territory with different approaches,' Dr Tickell said, 'So it's in quite a different territory to what the Equality Act is talking about.'
Dr Tickell added the Misogyny bill was always 'shoogly-looking' when it came to whether or not it would be passed in time for the end of the parliamentary term.
The Government consultation on this included proposals to make sending threatening or abusive messages to women and girls which refer to rape, sexual assault or disfigurement a specific crime, and also proposed making stirring up hatred against women or girls a new offence.
The consultation had also considered if there should be an offence of misogynistic harassment – making it a criminal offence for a person to subject a woman, girl, or groups of women and girls to such behaviour.
That came after Scottish ministers commissioned a report from leading barrister Helena Kennedy KC into misogyny in Scotland.
Dr Tickell said: 'The proposals from Helena Kennedy had a lot of dimensions to them…irrespective of what the Supreme Court held, it was always going to be unlikely that this bill would get passed in time because it's not even been produced yet.'
Asked if the Scottish Government's reasoning holds water in anyway, Mr Tickell said: "I don't think it stacks up at all.
"The closest you can get to it is...under the Scotland Act, there are a range of reserved matters and in that list of reserved matters is equal opportunities...which means they can't amend the Equality Act.
"But it doesn't mean anything which is to do with everything equal opportunities is covered by. If it was, then you could not have Hate Crime legislation passed by the Scottish Parliament.
"That's the only thing I can see where you could have any kind of ambiguity about legislative competence and it's one that I don't think the Scottish Government themselves would remotely accept because they have never done so."
Dr Tickell said there remains "gaps in the law" when it comes to offences on behaviour based on misogyny but he said the proposals went "well beyond" those gaps which currently exist.
He pointed to a case involving the so-called pick-up artist known as Addy A-game who was jailed for targeting young women. However, he had his conviction quashed on appeal.
"There is, I suppose, a kernel of a gap in the law here which, I would argue, the law could fix.
"Particularly when it comes to protecting young women from this sort of street harassment because at the moment, following that case, they are not protected from that in the law."
Instead of separate legislation, the Scottish Government said it will now bring forward secondary legislation to amend the Hate Crime Act, adding the 'protected characteristic of sex' to this so females have 'the same protections as other groups'.
However, Dr Tickell said this may offer a "much more blunt" form of Hate Crime framework that would not include "certain nuances" within the Misogyny report from Helena Kennedy.