Now that the definition of the word “woman” is beyond doubt, it should be easier than ever to pass a law against misogyny. Not according to the Scottish Government, however, which has dropped plans to introduce a standalone bill to protect women and girls. There isn’t time before next year’s Holyrood elections, apparently, to draw up legislation which takes into account the “implications” of last month’s Supreme Court judgment.

The main “implication” appears to be that women are adult human females and trans women are not. Any law criminalising misogyny, defined as hatred or fear of women, would apply to the former group and not the latter. It’s not even as though trans-identified people in Scotland need a new law. They’re already protected by existing legislation, unlike women who were the big omission when the controversial hate crime law came into effect in Scotland last year.

So what does First Minister John Swinney mean when he claims a misogyny law needs to be put on hold because “we have to navigate a way through all of the issues that come out of the […] judgment”? Why this sudden cooling on a piece of legislation which has been promised by successive first ministers, following the recommendations published in 2022 by an “expert group” led by Baroness Kennedy KC?

Kennedy has always been more exercised about the plight of trans women who are expected to serve sentences in men’s prisons than female inmates who don’t want to share intimate spaces with biological men. “Very often, putting a trans woman into a male prison is going to actually create an incredible risk to the safety and wellbeing of that person,” she told Justice Secretary Shabana Mahmood this week.

What’s more, Kennedy has repeatedly insisted that the misogyny law she favours would apply to men who “identify” as women. “This is about hatred,” she told the Guardian four years ago. “Trans women, gay women, journalists, parliamentarians, all women get a whole lot of horrible stuff slung at them — disproportionately — and I’m not narrowing down those who receive it.” Similar statements have been made by the Westminster MP Stella Creasy, who has long advocated legislation against misogyny which could be used by trans women.

The omission of women from the groups protected by hate crime laws in Scotland and the rest of the UK is telling. But it doesn’t necessarily mean that women and sex should be added to existing legislation, as the Scottish Government now proposes. Such laws are subjective and open to malicious misuse. Scotland’s legislation remains an unwelcome legacy of former first minister Humza Yousaf, who fell out with his Green coalition partners shortly after its implementation and was gone within weeks.

The risk to women posed by a poorly-drafted misogyny law is obvious. Including trans women under its umbrella would be an open invitation to target high-profile feminists such as J.K. Rowling with specious allegations of misogyny. The Supreme Court has put paid to that nonsense, which might explain the Scottish Government’s sudden lack of enthusiasm for one of its flagship proposals. If you’re still committed to the wilder shores of gender theory, what’s the point of a new law that doesn’t make allowances for trans women?

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Joan Smith is a novelist and columnist. She was previously Chair of the Mayor of London’s Violence Against Women and Girls Board, and is on the advisory group for Sex Matters. Her book Unfortunately, She Was A Nymphomaniac: A New History of Rome’s Imperial Women was published in November 2024.

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