”If the person isn’t perceived as or passing as a member of the vulnerable group, then that type of hate crime cannot be applied.”
I can see how this works in terms of ethnicity/ race or sexuality because if you don’t know someone is from a certain ethnic group how can you target them on that basis.
It’s a bit different for trans women though isn’t it because on the whole you can spot a non passing TW from a mile off and recognise they are a TW on the basis that you can see they are a man in a dress or a man with various other signifiers of “womanhood”. So you are simultaneously perceiving a man and a TW at the same time.
But if TW are considered to be women for the purpose of the act then your perception of the attacker as a man isn’t going to save you because for most people we will also be perceiving a man who believes themselves to be a woman.
If I see an obvious trans woman in the ladies and I start stirring up hatred against him (aka calling him a man, using male pronouns and shouting at him to get out the ladies) then my perception of him as a man isn’t going to save me from being investigated under the misogyny legislation because that legislation recognise TW as women. The perception of the TW will be that you have targeted them on the basis that they are a TW not a man and TWAW for the purpose of the legislation.
There’s obviously some complexity here and I imagine it would end up going up the court hierarchy. But I don’t think it’s as simple as perception of the attacker v intent.