Hate crime and public order (Scotland) Act 2021 - draft SSI to add 'sex' as a characteristic: consultation

About this consultation

This consultation seeks views on new criminal law measures to be added into the hate crime legal framework. The effect of the new measures is to add new protections for women and girls as well as men and boys where behaviour is undertaken displaying prejudice in relation to the characteristic of sex.

Executive summary

Hate crime is a term used to describe behaviour which is both criminal and rooted in prejudice. The Scottish Government has taken significant action to help protect groups affected by hate crime.

The Hate Crime and Public Order (Scotland) Act 2021 (“the 2021 Act”) consolidated, modernised, and extended existing legislative protections against offences aggravated by prejudice against disability, race, religion, sexual orientation, variations in sex characteristics and transgender identity, and added age for the first time.^[7]

Where an offence is aggravated under the 2021 Act, this means that the law has already been broken and an individual’s actions have been driven by hatred towards a particular group (for example, an individual has assaulted another person and comments made during the assault show that the offence was, say, racially motivated or, say, religiously motivated).

For stirring up hatred offences, it is an offence to stir up hatred against a group of persons based on that group sharing a particular characteristic.

In May 2025, the Scottish Ministers announced that they would use the power contained in section 12 of the 2021 Act to add the characteristic of sex into the 2021 Act.

Any instrument to add the characteristic of sex is subject to the affirmative procedure. Further, under the 2021 Act, the Scottish Ministers must lay before Parliament a proposed draft of the Scottish Statutory Instrument (SSI) and have regard to any representations about that proposed draft that are made within a period of 40 days.

This consultation paper offers information on the SSI. It should be read alongside the SSI and accompanying Policy Note and it is intended to provide a straightforward means by which anyone can make representations about the draft SSI.

The draft SSI does not include a commencement date. The commencement date for the SSI that is laid in Parliament will be agreed in consultation with justice agencies.

The key areas where views would be welcome are:

• Introduction of an aggravation relating to the characteristic of sex
• Creation of a stirring up hatred offence relating to the characteristic of sex
• Provision for the protection for freedom of expression in relation to the stirring up hatred offence for the characteristic of sex
• Interpretative provision concerning the characteristic of sex
• Reporting of information on offences aggravated by prejudice concerning the characteristic of sex or stirring up of hatred against people defined by reference to the characteristic of sex; and
• Views on matters relating to impact assessments to accompany the final SSI.

Background

In 2017, the Scottish Government appointed Lord Bracadale to conduct an independent review of hate crime law in Scotland. Lord Bracadale published his report in May 2018^[8]. This report recommended that laws concerning the aggravation of offences by prejudice should be consolidated and standardised. It also recommended that there should be new stand-alone offences of stirring up hatred applying to all the characteristics covered by the aggravation of offences by prejudice.

Lord Bracadale’s report also recommended that hate crime legislation should cover the characteristic of ‘gender’.

The majority of Lord Bracadale’s recommendations were accepted by the Scottish Government and formed the basis of the 2021 Act. However, informed by responses to the Scottish Government’s consultation^[9] on Lord Bracadale’s report, the Scottish Government did not follow the recommendation on gender.

Instead, a power was included in the 2021 Act to enable Ministers to lay regulations in Parliament to add the characteristic of sex to the Act, subject to the agreement of Parliament.

Further to the Parliamentary consideration of hate crime legislation in 2021, the Scottish Ministers appointed Baroness Helena Kennedy KC to chair a Working Group on Misogyny and the Criminal Law to consider how the criminal law deals with misogynistic behaviour, including whether there are gaps in legislation that could be filled with a specific offence or offences, and whether the characteristic of sex should be added to the 2021 Act.

The Working Group’s Report was published in 2022^[10] and recommended

• Creating a new Statutory Misogyny Aggravation which operates outside of the Hate Crime and Public Order (Scotland) Act 2021;
• Creating a new offence of Stirring Up Hatred Against Women and Girls;
• Creating a new offence of Public Misogynistic Harassment; and

Creating a new offence of Issuing Threats of, or Invoking, Rape or Sexual Assault or Disfigurement of Women and Girls online and offline.

The Scottish Government previously planned to introduce a stand-alone Misogyny Bill to implement these recommendations. However in answer to a Parliamentary Question on 2 May 2025, the Scottish Government stated:

“The Scottish Government is committed to ensuring people are protected from misogynistic abuse and we had previously committed to the introduction of a Misogyny Bill. This is a complex area of policy and law, and it would be necessary that any Bill which brought misogyny into criminal law contained clear and unambiguous provisions in regard to the circumstances in which they apply. This would include the implications of the recent Supreme Court Judgment. Given the short time left in this parliamentary session, there is insufficient time for a Bill to be finalised and introduced in this session, therefore the Scottish Government has decided not to proceed with this Bill in this parliamentary session.

To ensure there are protections for women and girls in law, we will therefore lay an SSI by September to add the protected characteristic of sex to the Hate Crime and Public Order (Scotland) Act 2021 so that they have the same protections as other groups protected by that Act. This SSI is subject to super affirmative process and will therefore be subject to consultation.

We recognise the gendered nature of the harm caused to women and girls and will also take forward further work and engagement on the harms caused by misogyny including what more could be done to tackle the underlying attitudes that lead to misogyny and gender based abuse.”

The Scottish Government wants to ensure new protections for women and girls. This SSI will ensure that women and girls have the same protections in relation to hate crime as the people with the other characteristics covered by the 2021 Act. It also, in general terms, implements the first two recommendations made in the Working Group’s report, but does so in a gender-neutral way, reflecting the way in which the power to add the characteristic of sex is framed, so that women and girls receive new protections as well as men and boys.

Proposals

Introduction of a new aggravation and stirring up hatred offence

Regulations 2(2) and 2(3) of the instrument add the characteristic of ‘sex’ to the list of characteristics to which the statutory aggravation of offences by prejudice at section 1 of the 2021 Act and the offence of ‘stirring up hatred’ at section 4 of the 2021 Act apply.

This reflects the Scottish Ministers’ commitment to ensure that women and girls have the same protections in respect of hate crimes relating to their sex as other characteristics covered by the Act.

Question: Do you support the approach of extension of both the stirring up of hatred offence and the aggravation of offences by prejudice to cover the characteristic of sex?

Yes

No

Only the Stirring Up Hatred Offence

Only the Aggravation of Offences by Prejudice

Please use this space to give reasons if you wish to.

Protection for freedom of expression

Section 9 of the 2021 Act makes provision to protect the right to freedom of expression in relation to the offence of stirring up of hatred. It ensures, for the avoidance of doubt, that behaviour is not to be taken to be threatening or abusive solely on the basis that it involves or includes discussion or criticism of matters relating to age, disability, sexual orientation, transgender identity or variations in sex characteristics.

The intention behind section 9 was to address concerns that expressing views on a particular matter could trigger the stirring up hatred offence. For example, that organisations should not be required to make adaptations for disabled access, or that restrictions should be placed on people because of their age could otherwise be taken to be threatening or abusive in and of itself (without having to be expressed in a threatening or abusive manner) and therefore someone expressing such views could be seen as stirring up hatred.

Regulations 2(4) of the SSI extends this provision to the characteristic of sex.

It is considered that the value of the freedom of expression protection is the same in relation to the characteristic of sex as with other characteristics. This ensures that, as is the case with the other characteristics listed at section 9 of the 2021 Act, in order for the offence to be committed, the accused’s communication or behaviour must be threatening or abusive and intended to stir up hatred.

Question: Do you agree that if the offence of stirring up hatred is extended to the characteristic of sex, the freedom of expression provision at section 9 should apply?

Yes

No

Please use this space to give reasons if you wish to.

Interpretation of the characteristic of sex

Section 11 of the 2021 Act contains interpretive provision relating to the characteristics covered by the Act. Regulations 2(5) of the SSI makes provision relating to the meaning of the characteristic of sex for the purposes of that Act.

It defines sex for the purpose of this SSI as meaning biological sex (so a group defined by reference to their sex is a group defined by reference to their biological sex being either female or male), and “biological sex” means one’s sex at birth.

More information on the interpretative provision can be found in the draft SSI Policy Note^[11]

This reflects the fact that there is separate provision in the Act for the characteristic of transgender identity which covers the stirring up of hatred against people with a transgender identity, and offences motivated by hostility concerning transgender identity.

It should be noted that, for the purpose of the statutory aggravation of offences by prejudice, where an offence is committed against an identifiable victim or victims, it is the perpetrator’s perception as to the victim’s identity rather than their actual identity which is relevant. As such, where, for example, any victim, regardless of their actual identity, is assumed by the perpetrator to be a of a certain sex and commits an offence against them because of malice or ill-will relating to (the perpetrator’s assumption regarding) their sex, the offence would be aggravated by prejudice relating to their presumed sex.

Question: Are you content with the interpretive provision relating to the characteristic of sex?

Yes

No

Please use this space to give reasons if you wish to

Reporting of information

Sections 14 and 15 of the Act require reports on convictions under the 2021 Act (insofar as reasonably practicable) and police recording of crimes under the 2021 Act to provide additional statistical information about the characteristics in respect of which an offence is aggravated, or an offence of stirring up hatred is committed.

For example, where the characteristic is race, colour, nationality or ethnic or national origins, it requires information to be recorded about the particular race, colour, nationality or ethnic or national origins recorded as being targeted, and where the characteristic is sexual orientation, it requires information to be recorded as to whether the sexual orientation targeted is sexual orientation towards persons of the same sex, towards persons of a different sex, or towards both persons of the same sex and persons of a different sex.

The provision at regulations 2(6) and 2(7) of the SSI amends sections 14 and 15 so as to introduce a requirement that, where the characteristic is sex, information must be provided about whether the sex being targeted is female or male. This is in line with the kind of information that the 2021 Act requires to be collected for the other characteristics that it covers and will ensure that information is available about the extent to which stirring up hatred offences and the aggravation of offences by prejudice relate to behaviour concerning women and girls, or men and boys.

Question: Are you content with the provisions concerning data collection in relation to the characteristic of sex?

Yes

No

Please use this space to give reasons if you wish to

Impact assessments

We will publish impact assessments on the impact of the SSI prior to the final version being laid in Parliament. The aim of these assessments is to identify issues that may affect some groups more than others and to consider how we will address these issues.

In addition, we need to ensure that any reforms to the criminal law comply with the European Convention on Human Rights.

The questions on the potential impacts of the proposals are broken down in line with the formal assessments carried out by the Scottish Government, which are:

• Compliance with ECHR
• Equality Impact Assessment
• Child Rights and Wellbeing Impact Assessment
• Fairer Scotland Duty Assessment
• Business and Regulatory Impact Assessment

We consider that the SSI is unlikely to raise any new issues not already addressed in the Impact Assessment process which accompanied development of what became the 2021 Act in the following areas:

• Islands Community Impact Assessment
• Data Protection Impact Assessment
• Strategic Environmental Assessment

Human Rights

The Human Rights Act 1998 incorporated the European Convention on Human Rights (ECHR) into UK law. It means that public authorities, such as the Scottish Government, must not act in a way that is incompatible with the rights set out on the ECHR. It is therefore vital that we consider how the proposals will impact on human rights.

Question: Do you have any views on potential impacts of the proposals in this consultation on human rights?

Equalities

The Public Sector Equality Duty requires the Scottish Government and other public bodies when they are exercising their functions to have due regard to the need to:

• eliminate unlawful discrimination, harassment, victimisation and other conduct prohibited by the Equality Act 2010
• advance equality of opportunity between people who share a relevant protected characteristic and those who do not
• foster good relations between people who share a relevant protected characteristic and people who do not share it.

For the purposes of the Public Sector Equality Duty, a ‘relevant protected characteristic’ means age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

The Equality Act 2010 sets out nine protected characteristics: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. The Public Sector Equality Duty includes a requirement for the Scottish Government and other public bodies to have due regard to the need to eliminate unlawful discrimination, harassment, victimisation and other conduct prohibited by the Equality Act 2010.

Question: Do you have any views on the potential impacts of the draft SSI on equalities and the protected characteristics set out above?

Children’s rights

The UN Convention on the Rights of the Child (UNCRC) is an international treaty which sets out the fundamental human rights of all children. Part 1 of the Children and Young People (Scotland) Act 2014 places a duty on the Scottish Ministers to (a) keep under consideration whether there are any steps which they could take which would or might secure better or further effect in Scotland of the UNCRC requirements and (b) If they consider it is appropriate to do so, take any of the steps identified by that consideration.

All new legislation and policy that is developed by the Scottish Government must consider the impacts on the rights and wellbeing of children up to the age of 18.

Question: Do you have any views on the potential impacts of the draft SSI on children and young people as set out in the UN Convention on the Rights of the Child?

Business

A Business and Regulatory Impact Assessment (BRIA) is used to analyse the costs and benefits to businesses and the third sector of any proposed legislation or regulation, and to assess the financial implications of a policy more generally, with the goal of using evidence to identify the proposal that best achieves policy objectives while minimising costs and burdens as much as possible.

Question: Do you have any views on the potential financial or other impacts of the draft SSI on businesses, government and the third sector?

Other Impact Assessments

It does not appear to us that the addition of the characteristic of sex to the 2021 Act raises new issues relating to the Fairer Scotland Duty, Island Communities, Data Protection and Privacy, Business or the Environment that were not considered as part of the impact assessment process prior to the introduction in Parliament of the Hate Crime and Public Order (Scotland) Bill. However, we would welcome your views on any issues specific to the addition of the characteristic of sex to the 2021 Act which may be relevant to these impact assessments.

Question: Do you have any views on the potential impacts of the draft SSI on socio-economic inequality, communities on the Scottish islands, privacy and data protection, or the environment?