Engender blog

Modernising Scotland's abortion law

Today we launch our new report, ‘Outdated, harmful and never in the public interest - The urgent need to modernise Scotland's abortion law and prevent prosecutions.’ 

Here’s why... 

1. The law is in urgent need of modernisation.  

The legal framework which currently governs when an abortion is permitted is made up of a patchwork of laws that stem from as far back as the 17th century. These measures largely reflect the eras in which they were introduced, and the degrees of patriarchal control women were subject to at the time. Put another way, one of these laws was first introduced at a time when witch trials were still happening.  

The law is therefore out of step with the experiences of women in modern Scotland for whom abortion is routine healthcare, accessed by around one in three in their lifetimes.  

The report is informed by input from legal experts and medical professionals, detailing the wide-ranging support that exists for decriminalisation. It concludes with clear recommendations for Scottish Government and other key decisionmakers on what the next steps towards a modernised regulatory framework should be. These actions will be vital to support ongoing improvement in reproductive healthcare services and the safeguarding of reproductive rights for future generations of Scotland’s women and pregnant people.  

2. Prosecutions for crimes of abortion are happening in Scotland. 

Under the current law women and pregnant people in Scotland have no legal right to end a pregnancy. That decision ultimately sits with doctors, two of whom must authorise the request for an abortion. This layers unnecessary complexity onto service delivery and creates delays and barriers for women. Without this permission and compliance with other rules set out in the Abortion Act 1967, abortion is illegal across Britain, and women, healthcare providers and people assisting someone to have an abortion can be subject to prosecution. 

The sharp increase in prosecutions for abortion related offences in England throws into stark relief how the legal framework is increasingly working at odds with modern clinical realities, and public health, human rights and gender equality obligations.  

Our report examines the shortcomings of the current legal framework in Scotland in detail, including evidence that women have been charged and prosecuted for abortion related offences in recent years.  

3. The current system in Scotland is not keeping step with international human rights standards. 

With a few high-profile exceptions, countries across the world are increasingly modernising and liberalising their legal frameworks on abortion. Laws in Scotland, England and Wales now trail behind more progressive regulatory frameworks in most other European countries. Britain, including Scotland, has also failed to keep pace with international human rights standards. These are clear that access to safe, legal and timely abortion is a fundamental human right that must not be regulated using criminal law and penalties. 

 

 

4. Abortion is treated differently under the law without medical justification.  

 
Despite being one of the most routinely used and safe forms of healthcare- accessed by one in three women in their lifetimes, abortion is treated differently in law than almost all other medical procedures. In all other fields of healthcare, medical bodies are able to shape guidance and regulation based on best practice, rather than complex laws, including criminal law, from a bygone era. Dealing with abortion in this way creates a harmful stigma around an essential health service. It also prevents the development of services that are based on the best available clinical standards. Like all other healthcare, the governance of abortion should rightfully sit with healthcare regulators and professional medical bodies, not criminal courts.  

5. Support for abortion rights is widespread 

Decriminalisation is supported by the World Health Organisation, all relevant medical bodies in the UK, UN treaty bodies, trades unions and equalities advocates. In January 2024, 93% of those polled in Scotland agree that women should have the right to an abortion.  

 

 

 

 

In Summary 

The current legal framework in Scotland is:  

• Outdated and falling behind international human rights standards  

• Out of step with guidelines from global and national health bodies  

• Impeding access to quality abortion care for women 

• Perpetuating abortion stigma, harmful gender stereotypes and women’s inequality  

• Preventing healthcare practitioners from providing the highest standards of care 

• Causing women trauma and lasting harm, that is most pronounced for marginalised women and those in situations of vulnerability  

 

The report sets out how: 

• Women have been charged and prosecuted for crimes related to abortion in Scotland in the 21st century. 

• Abortion is vital, routine healthcare and is one of the safest and most frequently accessed medical procedures used by women and pregnant people across the world. 

• Decriminalisation of abortion is recommended by the World Health Organisation, major international human rights mechanisms, and all relevant professional medical bodies in the UK. 

• Decriminalisation is needed for realisation of a wide range of women’s human rights and for government compliance with international human rights law. 

• Safe and legal abortion is a cornerstone of progress towards women’s equality. 

• Decriminalisation is in line with high-level commitments from Scottish Government on gender equality and would help future-proof against regression on women’s rights. 

• Decriminalisation would remove unnecessary “chilling” pressures on healthcare professionals, who are exposed to potential criminal sanctions at work. 

Read the full report here.

Why is sex and gender not included within hate crime legislation in Scotland?

There has been much discussion in media in recent weeks focussed on sex and gender not being included within hate crime legislation in Scotland. At first glance, it might seem appealing to expand hate crime aggravators to include sex, as an obvious way to increase protections for women. However, in reality, the hate crimes model was not designed to address the nature and scale of the gender-based violence and harassment women face in our society. The hate crimes model focusses on protect minorities. Women are not a minority- they make up 51% of Scotland’s population.  

Women face a wide and complex range of gender-based violence and harassment in workplaces, public settings, online and at home. This violence and harassment are rooted in and drive forward gender inequality. Broader, more in-depth protections are therefore needed for women. Using hate crimes legislation to address misogynistic violence against women has proven to be inadequate in other countries that have trialled this approach. It has also shown potential to undermine more targeted efforts to address these issues. 

Ultimately, we need an entire legal framework and system that recognises the impact of sexism, misogyny and violence against women by design. A sex-based hate crime aggravator that is ‘added on’ to existing crimes won’t do this – we need a set of standalone, gendered laws. Without this, we risk creating unhelpful inconsistencies in how gendered crimes are dealt with by the justice system. It would, for example, leave it up to judges to determine whether an individual case of sexual assault or stalking meets the threshold for a sex-aggravated hate crime when in reality, these crimes against women are always inherently gendered forms of violence.  

We worked with the Misogyny and Criminal Justice in Scotland Working Group led by Baroness Kennedy, to advocate for a thorough examination of how the justice system should respond to misogynistic violence and harm. We joined experts in law, social work and human rights to take the necessary time to grapple with the expansive question of how the law can be used to interrupt misogynistic attitudes and behaviours. The report can be found here. The Scottish Government subsequently launched the Misogyny Law Consultation, our response to which can be found here, published June 2023. 

In 2022 the Scottish Government committed to introducing detailed legislation to improve protections for women before the end of this parliament.  

Before the Ballot - Why Candidate Assessment is a crucial step on the journey to more equal representation in politics

With partners in the Equal Representation Coalition, Engender is launching a brand new chapter of the Equal Representation in Politics Toolkit focusing on Candidate Assessment. Ahead of the Scottish Parliament and Local Council elections in 2026 and 2027, now is the time for parties to review how aspiring candidates gain approval to stand if we're to see more diversity on the ballot. Our Development Officer for Equal Representation, Jessie Duncan, explains how the new Toolkit chapter can help. 

Before the ballot 

When we think about how to make councils and parliaments more representative of the communities they serve, we normally think about elections. How do we elect more women, more minority ethnic people, more disabled people and more LGBTI people? The ultimate decision about who makes it off the ballot and into our councils and parliaments, of course, rests with voters. But in reality, so much about elections is already decided long before polling day. Parties largely have control over who makes it onto the ballot, with many decisions taken in the months and years leading up to election day, shaping the outcome before any votes have been cast.  

Parties decide who becomes a candidate through the process of candidate selection. Selection is where the party decides on who from a list of nominees will become the party candidate at the upcoming election. There is a lot of evidence showing the positive impact that using different policies, such as voluntary quotas during selection, can have on the diversity of elected representatives. However this is only useful if there is a diverse pool of potential candidates available to choose from. 

Candidate assessment and discrimination  

Not just anyone is allowed to put themselves forward for selection - aspiring candidates will usually have to gain the party's approval. This process is known as candidate assessment (sometimes called vetting, screening or shortlisting), and it is at this stage that the first decisions about who our elected representatives will be are taken. Processes vary but usually involve some combination of written application form, an interview with a panel , and might include a test before a final decision is made. Some parties might use these stages to filter, and just like any recruitment process, without consideration of how to combat discrimination and to ensure equal access, candidate assessment risks stifling a more equal, representative politics right at the outset.  

Chronic underepresentation – It's not good enough 

Unfortunately, no robust data that would tell us about the protected characteristics of our elected representatives is published at the moment, but what we do know tells us that across our councils and parliaments, underrepresentation of marginalised groups is rife – for instance, women make up approximately just 35% of councillors in Scotland, and it took until 2021 for the first two women of colour to be elected to the Scottish Parliament. This kind of chronic underrepresentation benefits no one – we know that when there is meaningful diverse representation, better decision-making follows. Parties have a tremendous responsibility to their membership and to the communities they seek to serve to ensure that candidate assessment processes do not enable and reward only those whose experiences and pathways to politics conform to an outdated status quo of what makes a politician – because it's clear that the status quo is broken. 

What will help? 

While progress on increasing diversity is often focused on electoral outcomes, to ensure that progress at the ballot box is sustainable, it's essential to look at all stages of the journey and to invest in developing a strong, diverse pipeline of future candidates. This means considering how potential candidates are developed, supported and assessed. As well as being a responsibility, this offers parties a huge opportunity to put into practice often-stated principles when it comes to building a fairer, more equal society. 

Parties must ask themselves: 

• What qualities and experiences do we want to see more of in public life? 

• Is the way we assess potential candidates perpetuating inequality? 

• Are our values as a party reflected in the candidates that we approve to stand? 

• Are we meeting our legal duties to ensure a fair and open process under the Equality Act?  

To help answer these questions, we're launching a new chapter of the Equal Representation Toolkit, focused on Candidate Assessment. The chapter is aimed primarily at party members and staff who are involved in assessing candidates or in designing assessment processes. Guidance is given on how to run an inclusive and accessible candidate assessment approach that enables people from a wider range of backgrounds to succeed. This includes looking at things like how to advertise and raise awareness of the assessment process; providing equalities training for people involved in assessment; valuing diverse experience; and how to provide constructive feedback and ongoing support for unsuccessful applicants.  

As with the rest of the Toolkit, users are invited to take a self-assessment quiz and receive a bespoke action plan highlighting areas for reflection and recommendations for improvement. The Toolkit is easy-to-use and each chapter takes no more than 5 minutes. We can also offer workshops and 1-2-1 support – please get in touch with us if you're interested. 

While all attention may be focused on campaigning for the General Election, it's essential to remember what comes next. We are currently 2 and 3 years out from the next Holyrood and local council elections, but it is likely that the processes which will shape these results will begin much sooner. Candidate assessment is the first in a chain of decisions that determine who our elected representatives will be. It's up to parties to make sure that hopes for greater equality in our democracy are built on strong foundations – starting with asking who is given the chance to be on the ballot.

Women, Scotland & Inclusion: We need more than 'inspiring' inclusion

This International Women's Day, we're overjoyed to share with you four guest blogs from women across Scotland who are making meaningful steps towards women's equality. The theme of IWD this year is #InspireInclusion, & we asked our bloggers to talk about the communities and campaigns happening across the country.

Nosheen Ahmed is the Employability Project Coordinator at AMINA, the Muslim Women's Resource Centre. She is a trained Independent Domestic Abuse Advocate (IDAA).

I came across this meme that has been circulating on LinkedIn inspired by the Beckhams, and it made me laugh because it hit the nail on the head…nothing says inclusion like a cupcake, right?

Thank you for the tokenistic gesture, but what we really want to see is meaningful change where as women, we can thrive in an environment that brings out the best in us.

Equality, Diversity, Inclusion, the 'buzz words' organisations across sectors have been using, but how are these words actually being implemented in reality to tackle all the 'isms' that exist in today's society?

Featuring your only BME or disabled person on your website, social media or marketing materials doesn't quite inspire inclusion, especially when the board of directors have a disproportionate ratio of men, women, and people of colour on it. We can see through the façade and know when we are the diversity hire or tick box exercise to increase the EDI stats. Please don't use us to promote you are 'an inclusive employer' when your policies and internal practices are to the contrary.

For the majority of my career, I have been either the only BME person within my organisation or from the minority. I was never able to bring my entire self to work, or proudly share my identity of being a Scottish, Pakistani, Muslim woman. When I first started my career journey, I wanted to fit in and focus on the job I was employed to do. Therefore, microaggressions, racist, sexist or Islamophobic comments were tolerated with a fake smile as I didn't know how to challenge them in fear of losing my job.

However, over the years, I observed the covert and overt forms of discrimination, sexism and racism that occurred in the workplaces which affected me and others from marginalised communities. My lived experience has now become my expertise and valued by organisations that are serious about making their workplace more inclusive.

When I speak to organisations who say they want to increase their diversity, some of the first things they tend to say is:  

• We don’t know how to reach the marginalised communities.
• We don’t get many applications from BME people when jobs are advertised.
• Women aren’t applying for senior management roles.

The onus is automatically put on the marginalised community being hard to reach when they aren't. Perhaps there are barriers preventing them from applying and pursing those career opportunities. As an organisation that is serious about inclusion, you have to actively look for and engage with the communities you want to reach and work with them to remove these barriers.

If you don't know where to start, reach out to a specialist BME organisation such as AMINA The Muslim Women's Resource Centre that has been around for the last 25 years serving women from the Muslim and BME communities. Managing the employability project at AMINA, my team and I are always open to partnership working and can help promote vacancies, skills development, volunteering opportunities, and facilitate focus groups.

Celebrating Inclusion

Of all the places that I have worked, AMINA is the only place I feel I can bring my true, authentic self to work. Why? Because I don't have to explain my faith, my culture, or my feminine issues, I am accepted for who I am; there is a sense of belonging, a shared understanding, and a real family feel. This is what true inclusion should feel like for everyone.

At AMINA, it's International Women's Day, every day! We are fighting for women's equality in all areas of life and celebrate the unrecognised invisible work they do outwith their day job by ensuring our internal policies help them achieve a work-life balance.

In 2024, we should all be doing better at inspiring inclusion. It's a collective and collaborative effort that requires buy-in from everyone within an organisation. It's not a gender problem, a BME problem, or a race problem… it's a societal problem that we all need to work on together. After all, we can all enjoy a cupcake (or two) while being different together without needing a dedicated day to celebrate.

Guest posts do not necessarily reflect the views of Engender, and all language used is the author's own. Bloggers may have received some editorial support from Engender, and may have received a fee from our commissioning pot. We aim for our blog to reflect a range of feminist viewpoints, and offer a commissioning pot to ensure that women do not have to offer their time or words for free.

Interested in writing for the Engender blog? Find out more here.