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

Impact Assessments

Human Rights

The consultation asked respondents if they have any views on potential impacts of the proposals in this consultation on human rights. 150 respondents provided comments in response to this question. Of those, 26 were organisations and 124 were individual respondents.

Organisation respondents

To a significant extent, organisations’ responses to the question concerning the potential impact of the SSI on human rights reflected their views on the principle of adding the characteristic of sex to the 2021 Act and the approach the draft SSI took to the inclusion of interpretive provision concerning the meaning of the characteristic of sex. Of the organisations that made substantive comments, around the same number considered that the SSI would have a positive impact on human rights as considered it would have a negative impact. One respondent highlighted a number of ways in which they thought the SSI could have both positive and negative impacts on human rights.

Around half of organisation respondents who stated that they considered that the SSI would have a positive impact specifically said that it would have a positive impact on the human rights of women and girls. Some of these highlighted either specific articles of the European Convention on Human Rights (ECHR) that would be positively impacted upon, or stated that they considered that the SSI is consistent with or supports the Istanbul Convention on Violence Against Women and Girls or the Convention Against all forms of Discrimination Against Women (CEDAW).

Among those who had concerns about the human rights impacts of the draft SSI, a significant number specifically highlighted what they considered to be negative impacts on the human rights of people who are transgender, who have variations in sex characteristics or who identify as non-binary. These concerns broadly reflect the issues these respondents raised in response to earlier questions in the consultation. Some expressed concern that the human rights of transgender people could be undermined by the fact that the approach to the definition of the characteristic of sex in the SSI relates to a person’s birth-sex irrespective of how they themselves would self-identify. Other respondents raised practical concerns that the data provisions could require a hate crime victim who is transgender, non-binary or has variations in sex characteristics to declare their birth sex to the police.

There were also some respondents who stated that they considered that the approach of adding the characteristic of sex to the 2021 Act doesn’t sufficiently protect the human rights of women and girls. These respondents explicitly contrasted the policy with the Scottish Government’s earlier commitment to legislate to implement the recommendations of the Working Group on Misogyny and the Criminal Law chaired by Baroness Helena Kennedy, which they considered would better address criminal misogynistic behaviour experienced by women and girls. A small number of respondents said that the gender-neutral approach of having the visions apply to both women and girls and men and boys was in their opinion contrary to the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and the Istanbul Convention on Violence against Women.

Individual respondents

124 individual respondents provided comments on the human rights implications of the draft SSI. Of these, around half of respondents expressed the view that the policy provided for in the draft SSI would have a positive impact on human rights. Just under a quarter of respondents expressed the view that it would have a negative impact on the human rights of particular groups of people. A small number highlighted both positive and negative impacts that that the draft SSI could have on people’s human rights while just under a quarter of respondents offered views that could not easily be categorised. Some of these were comments to the effect that the respondent did not think that they were in a position to offer an informed view on the question while others were either offering views on how other characteristics covered by the 2021 Act impacted on human rights, or offering commentary on individual cases (some of which were civil cases that are not connected to the 2021 Act).

Of those respondents who expressed the view that the SSI would have a positive impact on human rights, the majority specifically expressed the view that it would improve the human rights of women and girls. A number of respondents expressed the view that the characteristic of sex should have been included in the 2021 Act when it was passed by Parliament and welcomed that it is now being included. A small number of respondents specifically welcomed the fact that it would apply equally to women and girls and men and boys.

Of those respondents who expressed concern about the impact of the draft SSI on human rights, around half expressed concern about the impact that the draft SSI would have on the human rights of people who are transgender, non-binary, or have variations in sex characteristics. These concerns were similar to those expressed in response to questions 1, 3 and 4 above. Some expressed concern that what they saw as endorsement of the concept of “biological sex” undermined the rights of transgender people. Others expressed the view that the draft SSI conflicts with what they argue are the requirements of the Gender Recognition Act 2004 which they say requires the criminal law to treat transgender people in accordance with their lived sex, or were concerned that transgender victims of hate crime could be required to disclose their birth sex to the police as a result of the data recording requirement.

A number of individual respondents who thought that the draft SSI had a negative impact on human rights were of this view because of their opposition to the 2021 Act legislative framework. Some stated that they thought that the question of whether a crime was motivated by hatred based on a particular characteristic was not something the law should be concerned with, while others stated that they thought the 2021 Act should be repealed.

A small number of those who thought that the draft SSI would have a negative impact on human rights referred specifically to what they saw as its impact on freedom of expression. These concerns appear to relate principally to the stirring up of hatred offence and concerns that it could make it a criminal offence to express certain points of view.

Other points raised by very small numbers of respondents who thought that the draft SSI would have a negative impact on human rights included that they thought its effect would be ineffective in dealing with abuse of women and girls or that it would be enforced in a way that is discriminatory against men and boys.

Of the relatively small number of individual respondents who expressed mixed views on the impact of the draft SSI on human rights, the most common theme was that the respondent supported in principle the extension of the 2021 Act to cover the characteristic of sex, but thought that in order to avoid unintended consequences it was important that there was a proportionate and non-discriminatory approach to policing of the law.

Impacts on Protected Characteristics

The consultation asked respondents if they have any views on potential impacts of the proposals in this consultation on the protected characteristics contained within the Equality Act 2010 (“the 2010 Act”). 139 respondents provided comments in response to this question. Of those, 21 were organisations and 118 were individual respondents.

Organisation respondents

Around half of organisations who commented on this question noted their support of the addition of sex to the 2021 Act and highlighted the importance of intersectionality in considering the impact the addition would have. Some noted that although separate in law, some protected characteristics of the 2010 Act can compound a person’s experience of violence or harassment, and that there can be a cumulative impact of such crimes on people’s intersecting identities. Some commented that of the protected characteristics in the 2010 Act, the most direct and positive impact of the regulations will be on women and girls, who face disproportionate hostility and abuse due to their sex.

Around a quarter of organisations who commented on this question thought that there would be negative impacts. These were concerns that the legislation wouldn’t go far enough to protect women and girls from gender-based violence, that it would negatively impact those who do not identify with their sex at birth, and that there may potentially be unintended negative consequences for the way in which characteristics such as sexual orientation are interpreted.

A small number of organisation respondents argued that they could foresee both positive and negative implications for protected characteristics. For example, one argued that while on one hand the definition of sex proposed in the draft SSI would not prevent trans people from having protection from crimes motivated by sex-based prejudice that aligns with their gender identity (as this would be determined by the motivation and perception of the offender), there is still a risk that using such a definition could undermine the lived experience of someone who is trans.

Individual respondents

Of the 118 individuals who provided comments in response to this question, around half referenced that they supported the draft regulations and that they would have positive impacts on existing protected characteristics. A number of respondents expressed that biological sex should be explicitly protected under hate crime laws, with a strong theme of the need to protect women and girls from sex-based hate crimes, violence, and harassment. Others refer to the Supreme Court ruling, arguing that adding sex to the 2021 Act aligns the hate crime legislation with existing legal frameworks. Some respondents emphasised that all protected characteristics should be treated equally, with none overriding another. Further, a number of respondents said that better data and clarity from including sex in the 2021 Act will help police and prosecutors identify and respond to hate crimes more effectively, which they expect to lead to improved policies and practices in tackling prejudice-based offending.

A number of respondents used this text box to state their opposition to hate crime legislation in general, or their opposition to the proposal to add sex to the 2021 Act, rather than providing comments specifically on the proposed impacts on protected characteristics. Some expressed that the addition of sex to the 2021 Act was inadequate to protect women and girls from harm, while others suggested the draft regulations prioritised women and girls.

A small number of respondents specifically referenced a need for intersectionality in considering protections under the 2021 Act generally. Some referenced the fact that a person could be targeted due to their sex, sexuality and age, and that women constitute a greater proportion of older age groups, meaning they are more likely to experience overlapping needs in relation to both sex and age, and therefore would benefit from the protections offered by the addition of sex to the 2021 Act.

A small number of respondents expressed concerns over what they regarded as the exclusion of trans people in the regulations. A dominant theme was that, in the view of those respondents, defining sex as "biological" excludes transgender individuals, particularly trans women, from legal protection. Those who held this view argued that this approach invalidates trans identities and undermines rights previously protected under the Equality Act 2010 and Gender Recognition Act (GRA). Some of those who left comments to this effect expressed concern that this could result in an increase in discrimination, harassment, and violence against trans and gender non-conforming people.

Impacts on Children and Young People

The consultation asked respondents if they 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 (UNCRC). 94 respondents provided comments in response to this question. Of those, 14 were organisations and 80 were individual respondents.

Organisation respondents

Half of the organisations who offered commentary on this question mentioned that the regulations would have a positive impact on the rights and wellbeing of children and young people, with a significant number noting in particular the benefits the regulations would have for girls and young women. These respondents specifically highlighted Articles 2 and 19 of the UNCRC, noting that the regulations will positively impact girls being protected from violence and abuse and protected from discrimination.

A small number of respondents were generally supportive of the regulations and noted they would have a positive impact on children and young people, but had some reservations about the impact on, for instance, young trans people, or young people’s right to freedom of expression.

A small number of respondents didn’t think that the regulations themselves would negatively impact children and young people, but did have concerns with the draft SSI itself. For example, concerns were raised that the draft SSI doesn’t go far enough to protect girls from misogyny, and that standalone legislation on misogyny would be preferable to adding sex to the 2021 Act.

Individual respondents

Of the 80 individuals who offered comments on this section, a majority said that they thought the draft SSI would result in positive outcomes for children and young people. Of these, around half noted the regulations would have a positive impact on all children and young people, and a significant number noted there would be a positive impact specifically on girls.

A small number of individual respondents said they believed the regulations would have a negative impact on children and young people. The key concern raised by these respondents included opposition to the interpretative provision used in the draft SSI and therefore a worry that young people who are trans would be disadvantaged due to the way the SSI is drafted.

A number of respondents used the comments box to raise matters that did not appear to directly relate to the content or policy of the SSI itself. The majority of these were comments concerning teaching children about matters relating to gender identity.

Financial Impacts

The consultation asked respondents for any views that they had about the financial implications of the draft SSI. 11 organisations and 57 individuals provided comments in response to this question.

For the most part, comments were quite high-level and general, offering only views on whether they thought there would be a financial impact, and if so, whom it would have a financial impact on, rather than seeking to provide views or information on what exactly any costs may be.

Organisation respondents

Of the 11 organisations which responded to this question, 7 made substantive comments. Two of these organisations simply stated that they expected the draft SSI would, if implemented, impose only minimal additional costs on the justice system. Two respondents stated that they expected that it would impose additional costs both on the third sector in providing support to additional victims who may come forward, and to justice agencies if this results in additional investigations, prosecutions and convictions.

Two respondents highlighted what they saw as the importance of appropriate guidance and training being produced for justice agencies tasked with investigating and prosecuting the offence and cases to which the aggravation applies. Two respondents noted that the addition of sex as a characteristic could have impacts for employers as such offences may occur in an employment context. One of these respondents suggested it would be helpful for there to be guidance to employers focusing on when they would be expected to report such matters to the police.

Individual respondents

A number of the comments made by individual respondents who were in favour of adding the characteristic of sex to the 2021 Act in response to the question about the financial impacts of the SSI expressed the view that the respondent did not think that there would be any financial implications. A smaller number of such respondents stated that the costs were, in their view, “irrelevant”, and expressed concern that costs may be used as a justification for not doing so.

The number of comments made by individual respondents who opposed the characteristic of sex being added to the 2021 Act was small. A number of these said that they did not think it was a good use of money, without specifying exactly what they thought that the costs would be.

Impacts on socio-economic inequality, island communities, privacy and data protection and the environment

The consultation asked respondents if they had 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. 47 respondents provided comments in response to this question. Of those, 7 were organisations and 40 were individual respondents.

Organisation respondents

Of the 7 organisations who provided comments on this question, 4 highlighted the potential risk of under‑reporting in islands or remote areas due to stigma, limited anonymity, and service gaps, suggesting targeted outreach, training, and capacity‑building for local authorities, schools and advocacy partners to combat this.

4 organisations noted the data protection aspect of the proposed policy, stating that the current requirements are robust if aligned with UK GDPR with gender‑disaggregated and anonymised data where needed.

The theme of gender‑based hate crime compounding existing socio-economic inequalities was mentioned by 3 organisations, who stated that women in poverty, insecure housing and/or caring roles may face barriers to reporting and redress.

No organisations highlighted any likely impact on the environment, but two organisations specifically mentioned that they perceived there would be little to no impact on the environment.

Individual respondents

Of the 40 individuals who left commentary on this question, A significant number stated that there would be positive impacts on socio-economic inequality, communities on the Scottish islands, privacy and data protection, or the environment. Of this group, a significant number said that they thought there would specifically be benefits for women from lower socio-economic groups, citing that this group of women are either more likely to be the victim of gender-based crime, or would otherwise find it more difficult to access justice for gender-based crime if the characteristic of sex was not added to the 2021 Act. A significant number of this group said that the draft SSI would have generally positive outcomes for those suffering poverty and inequality, and a small number said that they thought the draft SSI would result in better data captured on the extent of gender-based violence.

A number of respondents highlighted potential negative impacts, such as the potential over-criminalisation of “working class” men in particular and worsening socio-economic inequality of marginalised women and trans people. A number of other respondents noted that they didn’t perceive there to be any positive or negative impacts on socio-economic inequality, communities on the Scottish islands, privacy and data protection, or the environment.

The remainder of the comments were on topics that did not directly relate to the question about socio-economic inequality, communities on the Scottish islands, privacy and data protection, or the environment. These mainly reiterated points they had made in response to questions asked previously in the survey.