MBM statement on adding ‘sex’ to the Hate Crime and Public Order Act (Scotland) 2021
Introduction
The Scottish Government has announced today that it will bring forward an Order to add “sex” as a protected characteristic to the Hate Crime and Public Order (Scotland) Act 2021, as a consequence of its decision not to bring forward a freestanding bill on misogyny before the next election.
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.
Jamie Hepburn MSP, Minister for Parliamentary Business, Written Answer S6W-37425 2 May 2025
Our statement in response
“The Hate Crime and Public Order Act 2021 left women behind. The decision to leave out sex meant that police and prosecution practice, and public messaging, left women exposed to behaviour that would not be tolerated against other groups. We have seen stark examples of this just in the past few weeks. It has also meant data has not been collected.
We are pleased that the Scottish Government is finally rectifying this imbalance and hope the Order will be brought into force swiftly. Groups representing women subject to threats and attacks, simply because they have argued that sex matters for women in law, policy and practice, should be fully involved in developing any materials for use by police and prosecutors.”
Notes
In 2021 the Scottish Government rejected a simple option to provide women with protection in hate crime law by adding a new aggravator for sex. Instead, it chose the more complex route of appointing a Working Group to develop proposals for a stand-alone offence of misogyny. This reported in 2022. The Scottish Government consulted on the group’s proposals in the Spring of 2023. It published the analysis of the consultation yesterday.
The Scottish Government has now confirmed it will not bring forward legislation to criminalise misogyny before next year’s election.
The 2021 Act contained a provision to add an aggravator for sex, and a separate power to add “sex” to the “stirring up” offence, using secondary legislation. The Scottish Government is now taking this forward. The Order’s affirmative process means that to become law it will require a debate and vote at Holyrood.
Aggravators are attached to existing criminal offences and can influence police decision-making and affect sentencing. They also allow for data collection on offences motivated by prejudice, enabling research and policy. Police Scotland policy makes clear that:
Hate crimes should be treated as priority incidents and consideration given to the most effective response that balances the needs of the incident, police resources available and the nature of any risk.
Police Scotland, Responding to Hate Standing Operating Procedure 2024
The omission of sex sent a powerful signal that hatred towards women was less important than hate directed at other protected groups covered by the 2021 Act, including explicitly men who cross-dress as women, and reinforced a hierarchy of protected characteristics. The addition of sex will help rectify this. As argued by the Equality Network Director Stage 1 in oral evidence (also cited in Stage 1 report, para. 228), “it is important that people can see themselves in the bill.”
Further background information can be found in this blog, written in response to reports earlier this month that the Scottish Government would not bring forward a bill on misogyny before the next election. We argued that it should now move to add sex to hate crime legislation.
More details can be found in our Stage 1 Briefing Note and submission to the Misogyny and Criminal Justice Working Group.
