Women experience misogyny, sexism and bias in many areas of their lives. They are the target of much sexual and gendered abuse and harassment on the streets. More recently, the Internet has been unmasked as yet another venue where women are silenced – vitriolic attacks seem to try to both punish them for speaking out and discourage them from ever doing so again. And yet, sex/gender is not classed as a ground of hate speech in the UK. We ask what remains to be done for women's rights? Among many other things, the inclusion of sex/gender as a ground of hate speech alongside the existing protected classes: colour, race, disability, nationality (including citizenship), ethnic or national origin, religion, or sexual orientation. In the following contribution, I briefly explore the question whether sex/gender is somehow different from the other protected classes to make society accept the lesser recognition and protection it receives as a result.

In July 2016, the Nottinghamshire Police decided to record misogyny as a hate crime. The legal protection from hate speech is provided in various statutes and typically requires 'threatening, abusive or insulting words or behaviour', a ground, and a motive to stir hatred (for example, see Section 18 of the Public Order Act 1986). Sex/gender, however, is not a ground of hate speech. Indeed, what Nottinghamshire Police decided to do was merely to start recording incidents of abuse or harassment 'against women that are motivated by an attitude of a man towards a woman and includes behaviour targeted towards a woman by men simply because they are a woman.' They did so with a view to support the victims, and perhaps gain an understanding of this type of abuse or harassment. But lacking an express inclusion of sex/gender as a ground of hate speech, the incidents will continue to not be prosecuted as such.

Why this lack of coverage for sex/gender? Is sex/gender somehow different from the other protected classes to deserve this lesser recognition and protection? 

A comparison with race might be fruitful, since both are somewhat ‘classic’, long recognized axes of inequality in society. The comparison reveals one interesting facet, relating to whether we can truly become race- or sex-blind. If we were to imagine an ideal post-racial society, where race would no longer be tied to social exclusion and poverty, and people might have ceased to think in biased and prejudiced way on the basis of one’s colour of skin, you could arguably ignore race altogether. It could cease to be a characteristic that organises society and would become irrelevant. But one could argue that sex could not be entirely ignored even in an ideal equal society – women have the ability to bear children, and if they do, they become vulnerable and perhaps in need of special provision in a way which does not have a male equivalent. This might justify continued ‘different’ treatment of men and women, for example in labour law. But pregnancy and motherhood has little to do with abuse and harassment directly. 

Reproduction, more widely conceived, is relevant, however. Men and women (and, for reasons of space, in this particular contribution, I do concentrate on opposite-sex scenarios and straight men and women) have sexual relationships in order to reproduce, and would continue to do so even in an ideal equal society. The process of this, while often perceived as ‘natural’ even today by some, is, of course, socially constructed and highly gendered. Our culture has created or at least accepted styles of ‘courtship’ which see the male as the hunter and the woman as prey. Certain types of interactions between men and women – wolf whistling, loud ‘complimenting’, explicit invitations, even invasions of personal space or touches – can thus be cloaked and explained away as parts of the oldest game of sexual courtship, in a way that racist abuse cannot. Racist abuse is abuse. Sexual harassment and abuse are often presented as misunderstood teasing, flirting, or seduction. This justifies them as play gone wrong. When cast as ‘right to play’, it feels innocuous, even more immediately justified than the ‘right to offend’.

None of this, of course, justifies the lack of legal response to abuse and harassment of women. On the contrary, I believe it militates for the need for greater societal and legal vigilance against misogyny, exactly because it often touches such an important area of human existence – sexuality.