SSI to add sex as a characteristic to the hate crime and public order (Scotland) act 2021 - fairer Scotland duty - assessment not required declaration

Rationale for decision

The purpose of the Scottish Statutory Instrument (“SSI”) is to add “sex” as a characteristic to the Hate Crime and Public Order (Scotland) Act 2021 (“the 2021 Act”).

On the basis of Lord Bracadale’s independent review of hate crime legislation in Scotland, 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. While the majority of Lord Bracadale’s recommendations were accepted by the Scottish Government, the Scottish Government did not follow the recommendation to add gender as a characteristic. Instead, a power was included in the 2021 Act to enable Ministers to later lay regulations in Parliament to add the characteristic of sex to the Act, subject to the agreement of Parliament.

In May 2025, the Scottish Ministers announced that they would use this power to add the characteristic of sex into the 2021 Act, and in August 2025, a draft SSI was laid before the Scottish Parliament. The SSI was subject to the super affirmative process, and was therefore subject to public consultation.

The purpose of this legislation is to ensure new protections for women and girls. The SSI will ensure that women and girls have the same protections in relation to hate crime as those with the other characteristics covered by the 2021 Act. The SSI adds sex to the 2021 Act in a gender-neutral way, meaning men and boys will also be protected against crimes committed against them due to their being men and boys.

As part of the consultation exercise on the draft SSI, consultees were asked whether they had any views on the potential impacts of the draft SSI on socio-economic inequality. Amongst those who provided comments on this aspect of the policy, the draft SSI was widely perceived as beneficial for addressing socio-economic inequality, especially for women from lower-income backgrounds who were regarded as being more vulnerable to gender-based violence and face barriers to accessing justice.

It is therefore important to recognise that women and girls (and men and boys) can be vulnerable to certain socio-economic disadvantages due to their gender. However, a full assessment under the Fairer Scotland Duty is not required as the SSI does not represent a strategic decision, and it is not expected to have any direct implications for inequalities arising from socio-economic disadvantage. This reflects earlier consideration of whether a full assessment was required for the Hate Crime and Public Order (Scotland) Bill prior to its introduction in Parliament^[1].

The addition of the characteristic of sex to the 2021 Act will not of itself reduce inequalities of outcome caused by socio-economic disadvantage, but rather it extends existing criminal law protections for groups to women and girls (and men and boys) to address crime committed against them due to their sex. While, for example, some specific groups of women and girls are of course vulnerable to socio-economic disadvantages, this legislation will not address these. Rather, the legislation applies to all women and girls equally to protect them against behaviour which is directed at them on the basis of their sex. Where an offence is aggravated under the 2021 Act, an existing offence has been committed 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 motivated by prejudice against the victim’s sexual orientation). 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. Adding sex to the 2021 Act will allow for existing criminal behaviour to be aggravated by prejudice against the victim’s sex, and it will criminalise behaviour that amounts to the stirring up of hatred against someone or a group on the basis of their sex.