MBM response to Scottish Government consultation on the draft SSI to add ‘Sex’ as a characteristic to the Hate Crime and Public Order (Scotland) Act 2021
Our response to the Scottish Government consultation on the draft SSI to add ‘Sex’ as a characteristic to the Hate Crime and Public Order (Scotland) Act 2021 is shown below. It appears that the Scottish Government has extended the closing date to 17 October 2025 (although it is currently showing as closed on the separate consultation webpage).
10 October 2025
Question 1. Do you support the approach of extension of both the stirring up of hatred offence and the aggravation of offences by prejudice to cover the characteristic of sex?
We strongly support the addition of sex as an aggravator.
The omission of sex, contrary to the recommendation of the Bracadale Review, sent a powerful signal that offending based on prejudice towards women was less important than offending directed at other protected groups covered by the 2021 Act, including, explicitly under the terms of the Act, male cross-crossdressers, and so 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.”
Omitting sex has practical consequences for the message sent about the seriousness of offending targeting women based on their sex in national and local public information campaigns; for police training; for the availability of data on the scale of offending motivated by prejudice based on sex, enabling research and supporting better policy-making; and for investigation and prosecution practice.
Aggravators are attached to existing criminal offences and can influence police decision-making and affect sentencing. 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 intersection of other characteristics with sex was raised by witness on the Bill in 2020-21. Isobel Ingham-Barrow, Head of Policy, Muslim Engagement and Development (MEND), noted to the Scottish Parliament that “Women are overwhelmingly the victims of particularly violent instances of hate crime against Muslims. There needs to be an understanding of the intersection between instances of hatred directed against people with different characteristics.” Danny Boyle of BEMIS similarly raised the intersection of sex and race in the targeting of BME women for offending.
We do not support the addition of sex to the list of characteristics covered by stirring up, on the same grounds that we previously expressed concern about the extension of free-standing stirring up offences beyond race. We remain concerned that the protection for freedom of expression in the Act is too generic, compared to what was recommended in the Bracadale Review, and is insufficient to prevent a chilling effect on legitimate freedom of expression, and risks cases being drawn into the earlier stages of criminal justice system, even if the courts may eventually reject them.
Question 2. Do you agree that if the offence of stirring up hatred is extended to the characteristic of sex, the freedom of expression provision at section 9 should apply?
Yes. It is essential that freedom of expression protection is included, if stirring up is extended to sex.
Question 3. Are you content with the interpretive provision relating to the characteristic of sex?
Yes. We presume from the drafting that the definition is intended to operate on the same terms as for sex as a protected characteristic in the Equality Act 2010, and welcome this. The Supreme Court set out clearly why protection against discrimination and harassment in the Equality Act needed to be grounded in sex as a lifelong physical characteristic, in order for the law to have a cogent foundation, and the same is true for offences based on prejudice based on sex, as covered Hate Crime and Public Order (Scotland) Act. We note that, as in the Equality Act, the perception of the perpetrator is the test under the 2021 Act.
Question 4. Are you content with the provisions concerning data collection in relation to the characteristic of sex?
Yes
Question 5. Do you have any views on potential impacts of the proposals in this consultation on human rights?
The current legislative framework, combined with criminal justice policies which treat aggravated offences more seriously, has the effect of unequal treatment before the law for women who are subject to offending based on prejudice due to their sex. Adding sex as a protected characteristic will address this.
Question 4. Are you content with the provisions concerning data collection in relation to the characteristic of sex?
Yes
Question 5. Do you have any views on potential impacts of the proposals in this consultation on human rights?
The current legislative framework, combined with criminal justice policies which treat aggravated offences more seriously, has the effect of unequal treatment before the law for women who are subject to offending based on prejudice due to their sex. Adding sex as a protected characteristic will address this.
Question 6. Do you have any views on the potential impacts of the draft SSI on equalities and the protected characteristics of age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and/or sexual orientation?
Adding sex as a protected characteristic will improve the ability of police and prosecutors to identify whether offending based on prejudice toward the other characteristics also includes a sex-based element (see above). Better information here should improve policies and practices aimed at reducing prejudice-based offending more generally, and responding to incidents.
Further information about your organisation’s response
We engaged extensively with the Act as it was being considered by the Scottish Parliament. See here for links to material relating to the exclusion of sex:
In 2020-21, we sought clarity on objections to the inclusion of sex raised by some women’s organisations. We never saw a clear explanation as to the basis on which some groups asserted that an aggravator (which by definition requires an index offence), would of itself be used by abusive partners to criminalise women falsely.
We noted that a freedom of information response showed that of the six specialist local providers of services to women suffering abuse who met the Scottish Government or responded to its consultation, five favoured introducing an aggravator which would cover hatred against women, with or without developing a standalone offence separately. The organisations objecting to the addition of the aggravator tended not to be involved so directly, or at all, with service provision to vulnerable women.