Criminalisation of misgendering – an analysis of the legitimacy of implementing regulations in the Polish legal order based on the Scottish model

Abstract

Background: The subject of this study is the phenomenon of misgendering, understood as the use of linguistic forms inconsistent with a person’s gender identity, analysed in the context of its potential criminalisation. The research was undertaken in response to the dynamically developing tendency in Europe to expand the catalogues of protected characteristics in provisions concerning hate crimes and hate speech, particularly as reflected in the entry into force of the Scottish Hate Crime and Public Order (Scotland) Act 2021. The analysis forms part of the current multidimensional legal discourse on the limits of criminalisation of speech and the protection of freedom of expression in a democratic state governed by the rule of law.

Research purpose: The aim of the article is to determine whether the phenomenon of misgendering constitutes an explicit criminal offence under the provisions of the Scottish Hate Crime and Public Order (Scotland) Act 2021 and to assess the legitimacy and practical feasibility of implementing analogous normative solutions within the Polish legal order. The research hypothesis assumes that the Scottish legislation does not directly criminalise misgendering; however, its indeterminate conceptual framework and the absence of clear boundaries of the offence of stirring up hatred create a serious risk of infringing the standards of freedom of expression and generate a chilling effect.

Methods: The study employs the dogmatic-legal method based on the analysis of the normative text and its literal, systemic and purposive interpretation. Additionally, a comparative legal method was applied by comparing the Scottish model with the proposed amendments to the Polish Criminal Code of 2024–2025. The analysis is supplemented by a review of relevant case law and legal scholarship.

Conclusions: The conducted research leads to the conclusion that misgendering does not constitute an offence expressis verbis under Scottish law. Its possible criminalisation would require an extensive interpretation of the statutory elements of the offence of stirring up hatred, which remains contrary to the principle of nullum crimen sine lege certa. The analysis of the practical application of the law demonstrates that the protection of gender identity remains largely illusory due to the low number of reports and convictions in this field. With regard to the Polish legal order, the study indicates that the legislator is not prepared to implement similar solutions, as evidenced by the Constitutional Tribunal’s judgment of 30 September 2025 declaring the amendment to the Polish Criminal Code unconstitutional.