SSI to add "sex" as a characteristic to the Hate Crime and Public Order (Scotland) Act 2021

Overview

Consultation on Draft SSI to Add the Characteristic of Sex to the Hate Crime and Public Order (Scotland) Act 2021

About this consultation

This consultation seeks views on new criminal law measures to be added into the hate crime legal framework. The effect of the new measures is to add new protections for women and girls as well as men and boys where behaviour is undertaken displaying prejudice in relation to the characteristic of sex.

Executive summary

Hate crime is a term used to describe behaviour which is both criminal and rooted in prejudice. The Scottish Government has taken significant action to help protect groups affected by hate crime. 

The Hate Crime and Public Order (Scotland) Act 2021 (“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,

Where an offence is aggravated under the 2021 Act, this means that the law has already been broken 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, say, racially motivated or, say, religiously motivated).

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.

In May 2025, the Scottish Ministers announced that they would use the power contained in section 12 of the 2021 Act to add the characteristic of sex into the 2021 Act.

Any instrument to add the characteristic of sex is subject to the affirmative procedure. Further, under the 2021 Act, the Scottish Ministers must lay before Parliament a proposed draft of the Scottish Statutory Instrument (SSI) and have regard to any representations about that proposed draft that are made within a period of 40 days.

The draft SSI does not include a commencement date.  The commencement date for the SSI that is laid in Parliament will be agreed in consultation with justice agencies.

The key areas where views would be welcome are:

• Introduction of an aggravation relating to the characteristic of sex
• Creation of a stirring up hatred offence relating to the characteristic of sex
• Provision for the protection for freedom of expression in relation to the stirring up hatred offence for the characteristic of sex
• Interpretative provision concerning the characteristic of sex
• Reporting of information on offences aggravated by prejudice concerning the characteristic of sex or stirring up of hatred against people defined by reference to the characteristic of sex; and
• Views on matters relating to impact assessments to accompany the final SSI.

Background

In 2017, the Scottish Government appointed Lord Bracadale to conduct an independent review of hate crime law in Scotland.  Lord Bracadale published his report in May 2018. This report recommended that laws concerning the aggravation of offences by prejudice should be consolidated and standardised.  It also recommended that there should be new stand-alone offences of stirring up hatred applying to all the characteristics covered by the aggravation of offences by prejudice.

Lord Bracadale’s report also recommended that hate crime legislation should cover the characteristic of ‘gender’. 

The majority of Lord Bracadale’s recommendations were accepted by the Scottish Government and formed the basis of the 2021 Act. However, informed by responses to the Scottish Government’s consultation on Lord Bracadale’s report, the Scottish Government did not follow the recommendation on gender.

Instead, a power was included in the 2021 Act to enable Ministers to lay regulations in Parliament to add the characteristic of sex to the Act, subject to the agreement of Parliament.

Further to the Parliamentary consideration of hate crime legislation in 2021, the Scottish Ministers appointed Baroness Helena Kennedy KC to chair a Working Group on Misogyny and the Criminal Law to consider how the criminal law deals with misogynistic behaviour, including whether there are gaps in legislation that could be filled with a specific offence or offences, and whether the characteristic of sex should be added to the 2021 Act.

The Working Group’s Report was published in 2022 and recommended

• Creating a new Statutory Misogyny Aggravation which operates outside of the Hate Crime and Public Order (Scotland) Act 2021;
• Creating a new offence of Stirring Up Hatred Against Women and Girls;
• Creating a new offence of Public Misogynistic Harassment; and

Creating a new offence of Issuing Threats of, or Invoking, Rape or Sexual Assault or Disfigurement of Women and Girls online and offline.

The Scottish Government previously planned to introduce a stand-alone Misogyny Bill to implement these recommendations.  However in answer to a Parliamentary Question on 2 May 2025, the Scottish Government stated:

“The Scottish Government is committed to ensuring people are protected from misogynistic abuse and we had previously committed to the introduction of a Misogyny Bill. This is a complex area of policy and law, and it would be necessary that any Bill which brought misogyny into criminal law contained clear and unambiguous provisions in regard to the circumstances in which they apply. This would include the implications of the recent Supreme Court Judgment. Given the short time left in this parliamentary session, there is insufficient time for a Bill to be finalised and introduced in this session, therefore the Scottish Government has decided not to proceed with this Bill in this parliamentary session.

To ensure there are protections for women and girls in law, we will therefore lay an SSI by September to add the protected characteristic of sex to the Hate Crime and Public Order (Scotland) Act 2021 so that they have the same protections as other groups protected by that Act. This SSI is subject to super affirmative process and will therefore be subject to consultation.

We recognise the gendered nature of the harm caused to women and girls and will also take forward further work and engagement on the harms caused by misogyny including what more could be done to tackle the underlying attitudes that lead to misogyny and gender based abuse.”

The Scottish Government wants to ensure new protections for women and girls. This SSI will ensure that women and girls have the same protections in relation to hate crime as the people with the other characteristics covered by the 2021 Act.  It also, in general terms, implements the first two recommendations made in the Working Group’s report, but does so in a gender-neutral way, reflecting the way in which the power to add the characteristic of sex is framed, so that women and girls receive new protections as well as men and boys.

Read the consultation paper. The consultation paper contains full background information for this consultation. You may find it useful to read or refer to while responding.