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

Introduction

The Hate Crime and Public Order (Scotland) Act 2021 (“the 2021 Act”) contained a provision at section 12 which enables the Scottish Ministers to lay regulations in Parliament to add the characteristic of sex to the Act, subject to the agreement of Parliament.

In May 2025, the Cabinet Secretary for Justice and Home Affairs announced that the Scottish Ministers intended to use the power at section 12 of the 2021 Act to lay regulations to add the characteristic of sex to the Act.

That order is subject to a form of “super-affirmative” procedure whereby, before laying such an order in Parliament, the Scottish Ministers must first lay before Parliament a proposed draft of the instrument and have regard to any representations about the proposed draft that are made to them within the period of 40 days beginning with the day on which the draft is laid and make any changes to the draft instrument that they consider appropriate.

The power to add the characteristic of sex to the 2021 Act enables it to be added to either or both of the provisions at section 1, concerning the aggravation of offences by prejudice, and at section 4, concerning offences of stirring up of hatred. It also enables consequential amendments to be made to the provisions at section 9 of the Act, concerning protection of freedom of expression, at section 11, to add interpretive provision concerning the characteristic of sex, and at sections 14 and 15, concerning the publication of reports on hate crime convictions and hate crime recorded by the police.

In order to facilitate the process by which people could make representations to the Scottish Ministers about the draft order, the Scottish Government undertook a public consultation on the draft Order between 28 August 2025 and 17 October 2025 using the Citizen Space platform.