UK’s Protection from Sex-based Harassment in Public Act 2023 protects trans people
April 2026 saw the release of the Home Office’s statutory guidance for policing in England and Wales covering the new aggravated offenses relation to sex-based harassment. Unlike the civil courts which have since April 2025’s UK Supreme Court’s (UKSC) Fow Women Scotland (FWS) ruling which explicitly framed trans people based on a notion of “biological sex”, this statutory guidance goes out of its way to provide trans people with sex based protections based on their actual or presumed sex:
18. ‘Presumed sex’ means where individual A presumes that individual B is a certain sex and this is the reason for the behaviour. In such cases, it does not matter whether individual A was mistaken as to individual B’s sex so long as A intentionally carried out the conduct with a view to causing harassment, alarm or distress to B because of B’s presumed sex. While behaviour based on hostility towards a transgender identity is covered in hate crime legislation (see para 33), there will be instances where someone who identifies as transgender has experienced harassment based on their sex or presumed sex which is in scope of the 4B offence.
The Protection from Sex-based Harassment in Public Act 2023 (PSBHPA2023) does not define sex in a “biological sex” based framing. Indeed, there are no explanatory notes attached to the legislation to provide additional context. Thus, a direct reading of both the Home Office Guidance and the PSBHPA2023 itself leads us to read the act as framing transgender people as the sex they affirm themselves to be or are perceived to be at the point at which the crime against them is committed.
During the second reading of the bill in the House of Lords in June 2023, Lord Wolfson laid out (Hansard, 2276):
It provides a higher sentence if the crime is motivated by the sex or the perceived sex of the victim—and that is as perceived by the offender, not the victim.
Thus, irrespective of what laid out in FWS regarding “biological sex”, the intent of the House of Lords was to put the onus on the perpetrator’s perception, not the victim’s actual sex.
MP Sarah Dines spoke further on this in the Public Bill Committee’s debate in February 2023 when she stated:
The first is that it does not matter whether there are additional motivations behind the defendant’s behaviour as well as the victim’s sex, as long as the victim’s sex was one of the motivations. The second is that the defendant’s motivation need not have been one of achieving sexual gratification; of course it could have been, but there are many other reasons why a person might decide to harass someone on account of their sex.
This is important with respect to transgender related incidents, because the motivations to harass trans women in particular is often rooted in misogynistic and transphobic assumptions about their sex. Section 4 of the statutory guidance develops the interaction with hate crime legislation (Crime and Disorder Act 1998), the Home Office is clear:
34. Where conduct engages both the sex-based element of the section 4B offence and hostility related to a protected characteristic for the purposes hate crime both aspects can and should be reflected. Where a section 4B offence is charged and where there is also evidence of hostility on the grounds of transgender identity, race, religion, sexual orientation or disability there can be an uplift in the sentence under section 66 of the Sentencing Act 2020 to reflect that hostility.
The guidance outlines the legal test for a s. 4B offence:
9. An individual (A) is therefore guilty of the section 4B offence if the two-part legal test has been met:
i. They have committed the section 4A offence – i.e. by intending to cause a person (B) harassment, alarm or distress, they-
a. use threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
b. display writing, a sign or other visible representation which is threatening, abusive or insulting, thereby causing that person (B) harassment, alarm or distress.
ii. and they (A) carried out the conduct because of that person’s (B) sex or presumed sex.
The statutory guidance defines ‘in public’ in s. 14-15 as:
Examples of public places are streets, open spaces, public transport (including taxis and private hire vehicles), and public buildings (including buildings open to the public such as cinemas and shops). This offence may also apply to online behaviour where the above definition of ‘in public’ has been met.
This means that online spaces such as social media could be covered by this, though s.1 of the Malicious Communications Act 1988 could also cover sex-based harassment of trans people in the UK.
Gender critics cite FWS and Maya Forstater’s employment appeal ruling as justification for the manifestation of their personal beliefs when it comes to harassing and demeaning trans people based on trans people’s sex. Often they do so with impunity because they believe that their beliefs will protect them from civil actions. However, PSBHPA2023 covers individual criminal acts, meaning that if a trans person is harassed, alarmed, or distressed by someone threatening them due to their sex they can file a complaint with the police irrespective of what beliefs the perpetrator holds. Indeed, as shown in the uplift in criminal penalties, a perpetrator’s personal beliefs could well be used as proof that they were carrying out a hate crime.
The proof will be in the enforcement, but PSBHPA2023 offers trans people a way to defend themselves which was previously not possible. MPs and the House of Lords did not explicitly mention trans people in their debates, but as the Home Office makes clear in the guidance trans people are covered by the legislation.
Given that PSBHPA2023 covers public buildings open to the public including places of employment this means that manifested gender critical beliefs used to harass, alarm or cause distress to transgender people can now be criminalised. Indeed, it begs the question as to whether it is possible for applied gender critical beliefs to be manifested at all where transgender people are present because visible representation of anti-trans beliefs targeting individuals which are perceived as threatening, abusive, or insulting is potentially illegal.
There is also a clear line between sex-based targeting of trans people and the deconstruction of gender critical beliefs. PSBHPA2023 does not cover belief based harassment, which would likely fall under hate crime legislation, meaning that any trans person who deconstructed gender critical beliefs in public needs to ensure that their deconstruction is not targeting a gender critic for their sex, only focusing on deconstructing their beliefs.
What PSBHPA2023 provides is a clear pathway to tackling transphobic and gender critical abuse of trans people across England and Wales. While the civil law appears to be dismantling basic trans rights, PSBHPA2023 indicates that the criminal law is not taking such a path. Indeed, the statutory guidance provides a framework through which trans rights can be enforced and upheld through the criminal courts. Even if a gender critic received a caution or a fine for their behaviour they will still receive a criminal record which they need to state on job applications and to their employers.
Its not often that the UK government provides trans people with a win, so while it will take a few years for PSBHPA2023 to bed in, it provides trans people the grounding they need to take action against anyone who uses sex based harassment against them in a public space.
