Consultation on adding sex to the characteristics protected under the Hate Crime and Public Order (Scotland) Act 2021
The Scottish Government has opened a consultation on adding sex as a characteristic protected under the Hate Crime and Public Order (Scotland) Act 2021. The closing date for comments is 10 October.
The draft statutory instrument defines sex as:
(9) A group defined by reference to sex is a group of persons defined by reference to—
(a) their biological sex being female, or
(b) their biological sex being male,
and references to sex are to be construed accordingly.
(10) In this section, “biological sex” means sex at birth.”
Adding sex to the list of characteristics protected under the Act was a major focus of campaigning when the Act was being considered in 2020-21. More background to that is available on our site here. We argued at Stage 1 that:
The proposal to add age to the hate crime protected characteristics leaves sex as the main characteristic that is protected under the Equality Act, but not under hate crime legislation. Under the Bill as it stands, the recognition in law that women can be victims of hate crime will be delayed at the very least until after the report of the Working Group on Misogynistic Harassment.
The longer the law is unchanged, the more the message is reinforced that hatred based on sex is less serious than hatred based on other characteristics.
This message is strengthened by the annual Scottish Government Dear Haters campaign and local anti-hate initiatives, which refer only to the hate crime characteristics protected in law.
The ongoing exclusion of sex also means that Scotland continues to have no statistics on offences motivated by prejudice based on sex on its own, or intersecting with other characteristics.
At Stage 3, the omission of sex was the subject of powerful speeches by women from across the chamber. It was highlighted that the Bill protected crossdressers who dress as women, but not women. Joan McAlpine MSP broke the government whip to support an amendment put down by Johann Lamont MSP to add protection for sex.
We have already welcomed the announcement that the Act will be at last amended, noting that since the passage of the Act it has become clear that offences with an aggravator attached are given a higher priority for investigation by the police. 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
We therefore welcome that the Scottish Government is finally taking action, almost five years after it resisted adding sex as a category to its flagship hate crime legislation. We are also pleased to see it using a clear definition of sex in line with Equality Act.
We will continue to argue that the priority should be to include sex as an aggravator, when an existing offence is committed, so that crimes motivated by prejudice against women are given equal priority by the police, compared to other groups, and that data on this is collected.