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

Data collection provisions

The consultation asked consultees if they were content with the provisions concerning data collection in relation to the characteristic of sex.

There were 342 responses to this question of which 325 were from individual respondents and 17 were from organisations.

The great majority of both the organisations and individuals who responded to this question were content with the provisions concerning data collection. Of the 17 organisations which responded to this question, 15 (88%) were content with the provision and 2 (12% were not).

Of the 325 individuals who responded to this question, 295 (91%) were content with the provision and 30 (9%) were not.

Organisation respondents

15 of the 17 organisations which responded to this question provided comments setting out the reasons for the position they had taken.

Of those organisations that commented, a significant number specifically said that they supported the approach because it ensured that the recording of information about perpetrators and victims in cases involving the characteristic of sex is consistent with the other characteristics covered by the 2021 Act. A significant number highlighted what they saw as the importance of data collection to assist in evaluating the effectiveness of the 2021 Act and the scale and nature of hate crime.

A significant number of respondents referred to the question of what is meant by a victim or perpetrator’s “sex” in the context of data recording. A small number of respondents specifically stated that it should be biological sex rather than gender, while one respondent said that both should be recorded.

A small number of respondents who were not content with the provisions on data collection, were concerned that it would or may require victims who are transgender or non-binary to provide information to the police about their biological sex. One of these organisations noted that this would be impractical given that it would be based on self-declaration, while the other noted that it was insensitive and would be an unjustified interference with their privacy.

Individual respondents

86 of the 325 individuals who responded to this question provided comments on the reasons that they were or were not content with the data protection provisions. Of those who did comment, 65 were content with the provisions and 21 were not content (as such, the 9% of individual respondents who were not content with the provision were much more likely to have made comments giving reasons for their position than the 91% who were content).

Of the 65 individual respondents who were content with the provision who commented, around half stated that in their view it was important that information about perpetrators’ and victims’ sex recorded their ‘biological sex’. A number used their comments to emphasise what they saw as the importance of accurately recording information about perpetrators and victims to understand who is being targeted and by whom. A small number of respondents stated that they thought that where the sex and gender of a victim differed, both should be recorded. A small number of respondents referred to what they saw as the importance of implementing the recommendations of the Sullivan Review on recording of sex and gender.

Of the 21 individuals who were not content with the provision who commented, around a quarter made comments that suggested that they distrusted or questioned the reliability or usefulness of government-published statistics generally or regarded the collection of such information about victims as being intrusive. A small number of respondents were concerned that recording of information about victims must be done in a way that is inclusive of transgender and non-binary identity and one suggested that requiring a victim to disclose their birth sex amounted to a breach of the General Data Protection Regulation.

Three respondents used the comments section to express their opposition to hate crime law more generally.