Misgendering and the criminal law: why clarity matters in the crime and policing bill
The British criminal law has long recognised that crimes motivated by hostility towards particular groups can warrant more serious treatment. The modern statutory framework for such offences was established by the Crime and Disorder Act 1998, which created a series of “racially or religiously aggravated” offences covering assault, harassment, and criminal damage. Parliament’s intention was clear: acts of violence or intimidation directed against individuals because of their race or religion should be treated as especially grave. The purpose of the law was not to regulate opinion or to police language, but to punish criminal conduct motivated by prejudice.
A current legislative debate risks blurring that distinction.
During the committee stage of the Crime and Policing Bill in the House of Lords, Toby Young, General Secretary of the Free Speech Union, proposed three amendments designed to clarify a simple question: whether the act commonly described as “misgendering” could become a criminal or aggravated offence under the new legislation.
His amendments seek to ensure that it cannot.
The Government’s proposal would expand the list of characteristics capable of aggravating criminal offences. At present the Crime and Disorder Act 1998 applies to hostility based on race or religion. Ministers propose extending that framework to include sexual orientation, transgender identity, sex, and disability. In addition, these aggravating factors would apply to a newly created offence concerning harassment, alarm, or distress directed at emergency workers.
On its face, such an extension appears designed to strengthen protections for vulnerable groups. Yet the practical question immediately arises: what additional protection would this legislation provide that the law does not already contain?
Under existing prosecutorial guidance issued by the Crown Prosecution Service, hostility toward characteristics including sexual orientation, transgender identity, and disability can already be flagged as an aggravating factor in criminal proceedings. When such hostility is identified, prosecutors may present it before the court, and judges may increase the severity of a sentence accordingly.¹ The police also record incidents reported as motivated by hostility toward protected characteristics as “hate crimes” or “hate incidents,” which are tracked for statistical and operational purposes.
In other words, the criminal justice system already possesses mechanisms for recognising and punishing hostility-motivated crime. The proposed legislative expansion therefore adds little in terms of substantive protection. Instead, its principal effect is likely to be institutional signalling: embedding additional characteristics within statutory aggravated offences inevitably encourages policing authorities to treat complaints framed in those terms as matters of priority.
That context is significant because the policing of speech in Britain has already become a matter of public controversy.
Statistics published by the Home Office and discussed in parliamentary debates indicate that thousands of individuals each year are investigated or arrested under communications offences for statements made online.² Such offences arise under legislation including the Communications Act 2003 and the Malicious Communications Act 1988, which criminalise sending messages deemed “grossly offensive” or intended to cause distress. Yet a substantial proportion of these cases do not result in prosecution or conviction. The disparity has led critics to argue that police resources are increasingly directed toward investigating speech that is offensive but not criminal.
It is against this background that Lord Young’s amendments must be considered.
The most consequential concerns a new offence to be introduced into the Public Order Act 1986, under which it would become an offence intentionally to cause harassment, alarm, or distress to a person because of their sex. Such provisions build upon earlier public-order offences, particularly those contained in sections 4A and 5 of the Act, which criminalise threatening or abusive behaviour likely to cause harassment or distress.³
Critics argue that the new provision risks introducing ambiguity when interpreted alongside contemporary disputes about gender identity. Activists who regard gender identity as determinative of sex may argue that referring to an individual according to their biological sex—or declining to adopt preferred pronouns—constitutes hostility capable of causing harassment or distress.
If such an interpretation were accepted, a disagreement about language could become grounds for police investigation.
Lord Young’s amendment therefore proposes a clear statutory safeguard: that referring to an individual according to their biological sex—often described as misgendering—cannot by itself constitute the offence. The amendment does not prevent police from investigating genuine harassment, threats, or intimidation directed toward transgender individuals. It merely ensures that the criminal law cannot be extended to encompass the expression of views about sex.
Such clarification is not unusual in British law. Parliament frequently inserts interpretative provisions to prevent statutes from being applied in ways that would conflict with constitutional principles, particularly those relating to freedom of expression.
That freedom is protected in domestic law through the Human Rights Act 1998, which gives effect to the European Convention on Human Rights. Article 10 of the Convention guarantees the right to freedom of expression, including the freedom to hold opinions and to impart information without interference by public authorities. In the landmark judgment Handyside v United Kingdom, the European Court of Human Rights famously held that the protection extends not only to information or ideas that are favourably received but also to those that “offend, shock or disturb.”⁴
The importance of clarity in criminal legislation therefore cannot be overstated. Vague or ambiguous offences risk creating a chilling effect on lawful speech long before any prosecution occurs. The mere prospect of police investigation, arrest, or prolonged legal proceedings may deter individuals from expressing views that are perfectly lawful but socially controversial.
Evidence from civil liberties organisations suggests that such scenarios already occur with some frequency. The Free Speech Union reports that approximately forty percent of the 5,600 cases it has handled since its founding have involved disputes related to sex and gender.⁵ Many of these cases concern workplace discipline, professional regulation, or police complaints arising from statements about biological sex and gender identity.
The amendments proposed in the House of Lords therefore represent a limited but significant attempt to preserve the proper boundaries of criminal law. They do not weaken protections against harassment or violence. They do not prevent the investigation of genuine abuse directed toward transgender individuals. Rather, they ensure that the criminal justice system is not drawn into adjudicating ideological disputes about sex and identity.
At a time when police forces face mounting pressure to address rising theft, violent crime, and public disorder, such restraint may be not only constitutionally prudent but practically necessary. Criminal law exists to punish conduct that harms others, not to arbitrate contested questions of language or belief.
Lord Young’s amendments therefore raise a fundamental question for Parliament: whether Britain intends to maintain a legal tradition in which citizens remain free to express their understanding of biological reality without fear of criminal sanction.
The answer to that question will shape not merely a single statute but the future boundaries of free expression in British law.
¹ Crown Prosecution Service, Hate Crime Legal Guidance, CPS.gov.uk.
² Home Office, Police Recorded Crime and Outcomes Data, including statistics on communications offences investigated under UK law.
³ Public Order Act 1986, ss.4A–5, offences of intentional harassment, alarm or distress and related public-order provisions.
⁴ European Court of Human Rights, Handyside v United Kingdom (1976) 1 EHRR 737.
⁵ Free Speech Union, case summaries and statistics published in organisational reports and parliamentary briefings.
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