Hate Crime and Public Order (Scotland) Act 2021- SSI to add sex as a characteristic: consultation analysis

Executive Summary

The Hate Crime and Public Order (Scotland) Act 2021 (“the 2021 Act”) contains a power which enables the Scottish Ministers to lay an order in Parliament which, subject to Parliamentary approval, adds the characteristic of sex to the characteristics covered by the Act.

In May 2025, the Cabinet Secretary for Justice and Home Affairs announced that the Scottish Government would lay a Scottish Statutory Instrument (SSI) to add the characteristic of sex to the Hate Crime and Public Order (Scotland) Act 2021 so that people who are victims of crime motivated by a perpetrator’s prejudice concerning their sex have the same protections as other groups protected by that Act.

The Scottish Government undertook a consultation on a draft version of the SSI between 28 August 2025 and 17 October 2025 seeking views on the approach taken in the draft SSI.

All responses where permission was granted have been published. This analysis can be read alongside the published responses.

Respondent Profile

In total there were 365 responses to the consultation paper, of which 34 were from organisations and 331 were from individuals. A list of organisations which responded to the consultation is provided as an appendix.

Methodology

Responses to the consultation were primarily submitted using the Scottish Government consultation platform Citizen Space, however, some responses were submitted by email. Where responses were submitted by email, these were entered manually onto the Citizen Space system to create a complete database of responses.

When referring to respondents who made particular comments, the following phrases are used to ensure consistency when discussing the volume of responses that shared similar themes^[1]:

• " a very small number" - less than 5% of those commented
• "a small number" - less than 10% of those who commented
• "a number of" - 10-25% of those who commented
• "a significant number" - 25-45% of those who commented
• "around half" - 45-55% of those who commented
• "a majority of" - 55-75% of those who commented
• "a large majority of" - 75-90% of those who commented
• "a very large majority of" - 90% plus.

Citizen Space as a platform contains analysis tools which allow consultation hosts to determine how many respondents answered “yes” or “no” to consultation questions. For questions 1-4 (the questions on the policy content of the SSI), Citizen Space analysis was used to determine how many respondents were in support, and how many were opposed.

For all questions, there was the option to respond with “yes” and “no”, but there was also no requirement for respondents to answer any question. In instances where a respondent did not answer “yes” or “no” but did leave comments in the free text box following the question, the text was considered and included in this analysis. However, for reasons of consistency, where a respondent did not answer “yes” or “no”^[2], they are not included in figures for the proportion of respondents who are or are not content with a particular aspect of the policy.

Following the closure of the consultation on Citizen Space, all 365 responses were extracted from the Citizen Space platform and exported into Excel for analysis. For each question where respondents left comments in the free text box, responses were grouped by recurring keywords and common themes.

The analysis of responses is presented in the following chapters which follow the order of the questions raised in the consultation paper.

Summary of questions

Principle of adding characteristic of sex to the 2021 Act

There was support from a large majority of consultation respondents for the adding of the characteristic of sex to the 2021 Act. However, there was a significant divergence of views between individual respondents, where nearly 90% of respondents supported this, and organisation respondents, where around half of respondents supported this and half did not. A small minority of respondents (around 3%) supported adding the characteristic of sex to the statutory aggravation but not to the offence of stirring up of hatred.

Many of those who supported the characteristic of sex to the 2021 Act expressed the view that it was important that women and girls who were victims of misogynistic crimes had the same protections as other groups protected by the Act. By contrast, many of the (mainly organisations) who opposed the addition of the characteristic of sex to the 2021 Act were of the view that the ‘hate crime’ legislative framework was ill-suited to dealing with misogynistically motivated crime.

Freedom of expression provision

There was support from a very large majority of consultation respondents (94%) who answered this question for extending the provision concerning the protection of freedom of expression to the characteristic of sex if the offence of stirring up of hatred is extended to cover the characteristic of sex. This view was shared by individual respondents and those responding on behalf of organisations. It was also consistent across those who supported and who were opposed to the addition of the characteristic of sex to the 2021 Act.

Many argued that the extension of the provision is necessary to protect the right to freedom of expression. A number of respondents noted that they did not see any reason to treat the characteristic of sex differently from the other characteristics to which the 2021 Act extended the stirring up hatred offence.

Among the small number of respondents who opposed the application of the provision for protection of freedom of expression to the characteristic of sex, of those who gave reasons, a recurring theme was concern that it may provide a loophole which could be exploited by those seeking to stir up hatred of women and girls.

Interpretive provision concerning the characteristic of sex

There was support from a large majority of consultation respondents (85%) for the approach taken in the draft SSI to interpretive provision concerning the characteristic of sex.

However, there was a significant divergence of views between individual respondents, of whom 88% were content, and organisations responding to the consultation, of whom a small majority (53%) were not content with the provision.

Those who were content with the interpretive provision concerning sex often highlighted what they saw as the importance of being consistent with the decision of the Supreme Court in the case of For Women Scotland (FWS) v. The Scottish Ministers on the meaning of ‘sex’ in the Equality Act. A number highlighted that separate provision already exists to address hate crimes relating to the characteristic of transgender identity.

Those who were not content with the interpretive provision concerning the characteristic of sex often expressed concern that the approach is the same as that of the Supreme Court decision with this reflecting their underlying concern with the nature of this decision. A number expressed concern that, in their view, it failed to recognise people with a transgender identity in line with their gender.

Data collection provisions

A large majority of consultation respondents (91%) who answered this question were content with the provisions concerning data collection in the draft SSI. This view was shared by both individual respondents and those responding on behalf of organisations.

Most respondents who offered views said that they thought the same approach should be adopted to the collection of data about victims and perpetrators of hate crime relating to the characteristic of sex as for the other characteristics covered by the 2021 Act. A number also noted that such data can help to better understand and respond to hate crime motivated by hostility relating to sex and stirring up of hatred on grounds of sex.

Of the small proportion of respondents who opposed this provision and set out their reasons for doing so, a common theme was concern about the reliability of government statistics and a concern that collection of data about victims could constitute an invasion of their privacy.

Impact Assessments

Human Rights

The consultation revealed mixed views on the human rights implications of adding “sex” as a characteristic under the 2021 Act. Among organisations, opinions were relatively evenly split: some saw positive impacts, particularly for women and girls, saying it would be in keeping with obligations under the European Convention on Human Rights (ECHR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Istanbul Convention, while others raised concerns about negative effects on transgender, non-binary, and intersex individuals. Issues included the reliance on birth sex in definitions and potential requirements for victims to disclose birth sex to police. A few organisations felt the measure did not go far enough to protect women and girls compared to previous commitments on misogyny legislation.

Among individual respondents, nearly half viewed the change as positive for human rights, especially for women and girls, while about a quarter saw negative impacts, mainly for transgender and non-binary people. Concerns included perceived conflict with the Gender Recognition Act, risks to freedom of expression, and fears of discriminatory enforcement. Some respondents expressed mixed views, supporting the principle but stressing the need for proportionate policing.

Financial Impacts

Responses suggested limited financial implications overall. Most organisations anticipated minimal additional costs for the justice system, though some foresaw extra expenses for third-sector support services and justice agencies due to potential increases in investigations and prosecutions. Guidance and training for justice agencies were highlighted as essential, and possible impacts for employers were noted, with calls for clear reporting guidance.

Individual respondents largely believed costs would be negligible or irrelevant, with some warning against using financial concerns as a barrier to implementation. A small minority opposed the measure on grounds of perceived poor use of resources, without specifying cost estimates.

Protected Characteristics

The addition of sex to the 2021 Act was broadly welcomed, with strong emphasis between both individuals and organisations on its importance for protecting women and girls from sex-based hate crimes. Respondents highlighted that this change would improve clarity in the law and strengthen enforcement, enabling better data collection and more effective responses from police and prosecutors.

Intersectionality was a recurring theme, with recognition that multiple characteristics subject to protection can compound experiences of harm. Overall, the proposal was seen as a positive step toward ensuring equal treatment of all characteristics given protection under hate crime legislation.

Children’s Rights

All respondents generally agreed that the draft SSI would have a positive impact on children and young people, particularly girls. The regulations were viewed as supporting key principles of the UN Convention on the Rights of the Child, notably protection from discrimination and violence. Many felt that these changes would enhance safeguarding and wellbeing for young people, ensuring they are better protected from abuse and prejudice.

Socio-economic, Island communities and data impacts

The draft SSI was widely perceived as beneficial for addressing socio-economic inequality, especially for women from lower-income backgrounds who are more vulnerable to gender-based violence and often face barriers to accessing justice. Respondents also noted the importance of robust data protection measures, with confidence that alignment with UK GDPR and anonymised, gender-disaggregated data would maintain privacy standards. For island communities, the main theme was the need for targeted outreach and support to overcome challenges such as stigma and limited anonymity, which can hinder reporting in remote areas.