Consultation on adding sex as a characteristic to the Hate Crime and Public Order (Scotland) Act
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?
Yes
Please use this space to give reasons if you wish to.
We strongly support the extension of both the offence aggravation and the stirring up hatred offence to cover the characteristic of sex.
Our members work daily with individuals and families affected by gender-based prejudice and violence. Social workers are often the first point of professional contact for women and girls experiencing domestic abuse, sexual violence, harassment, and discrimination rooted in misogyny. Through our members' practice experience, we are aware that crimes motivated by gender-based hatred cause particular and additional harm to victims.
Social workers supporting survivors consistently report that where offences are accompanied by misogynistic language, attitudes, or motivations, victims experience compounded trauma. They are harmed not only by the criminal act itself but by the knowledge that they were targeted because of their sex. This aligns with established understanding of hate crime impacts across other protected characteristics.
The extension of both measures is consistent with social work's professional values and obligations as set out in our codes of practice. Social workers have a duty to:
- Uphold and promote human rights and social justice
- Challenge discrimination and prejudice in all forms
- Promote the safety and wellbeing of vulnerable individuals and groups
- Address structural inequalities that cause harm
Supporting hate crime protections for sex is therefore a matter of professional integrity and consistency with our ethical framework. It would be inconsistent for our profession to support such protections for other characteristics whilst opposing their extension to sex.
We support both the aggravation and the stirring up hatred offence as complementary measures:
Offence Aggravation: This recognises that when existing crimes are motivated by sex-based prejudice, they carry additional weight and cause broader harm. Our members working in criminal justice social work, victim support, and safeguarding services need legal frameworks that properly reflect the nature and severity of the harms they address. The SSI would provide courts with appropriate mechanisms to recognise and respond to this.
Stirring Up Hatred Offence: From a preventative and public health perspective, this measure addresses the root causes of sex-based violence and discrimination. Our members working with children and young people are increasingly concerned about their exposure to content that incites hatred of women and girls, particularly online. Such content contributes to a climate in which gender-based violence is normalised and perpetuated. An offence targeting the deliberate incitement of such hatred represents an important tool in primary prevention - an area where social work expertise is particularly relevant.
Safeguarding and Child Protection Considerations: As professionals with statutory safeguarding responsibilities, we recognise that many of the women and girls who would be protected by these measures are already known to social work services and are among the most vulnerable in our society. They include women experiencing domestic abuse, young people at risk of sexual exploitation, women with multiple and complex needs, and girls exposed to harmful attitudes and behaviours. These individuals deserve equivalent legal protections to other groups covered by hate crime legislation. Social workers are concerned about the exploitation of impressionable and vulnerable boys and young men by individuals who promote ideologies based on hatred and division, and who recruit them into movements that cause harm. Our members working in children's services observe how attitudes that devalue and degrade women and girls impact on child development, family relationships, and children's own attitudes and behaviours. Legal measures that challenge such attitudes support broader work to promote healthy relationships and gender equality.
Equivalence with Other Protected Characteristics: The principle of equivalence is important. Social workers support individuals across all protected characteristics, and we have seen the value of hate crime legislation in providing recognition, protection, and redress for targeted groups. Women and girls should not be excluded from these protections. The current gap in the legislation is inconsistent with the equality principles that underpin both social work practice and broader anti-discrimination frameworks.
Gender-Neutral Application: Our members' practice experience, supported by extensive research and data, demonstrates that the overwhelming majority of gender-based hatred and violence is directed at women and girls. However, a gender-neutral legislative approach maintains consistency with the statutory framework and does not prevent the law from being applied appropriately based on the evidence of harm.
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
Please use this space to give reasons if you wish to.
Having supported the extension of hate crime protections to sex in Question 1 on the grounds that women and girls deserve equivalent protections to other groups, consistency requires that Section 9 should also apply. Currently, five characteristics benefit from Section 9 protections: age, disability, sexual orientation, transgender identity, and variations in sex characteristics. To exclude sex from these same protections would create an inconsistency in the legislative framework and place sex in a uniquely restricted category.
Equivalence must work both ways. If we argue that sex deserves the same hate crime protections as other characteristics, we must also accept that it should have the same safeguards for legitimate expression and debate.
It is important to be clear about what Section 9 does and does not do. Section 9 does not create a loophole for harmful behaviour or weaken the core offence. It simply clarifies that behaviour is not to be taken as threatening or abusive solely on the basis that it involves discussion or criticism of matters relating to a protected characteristic.
Critically, the offence still requires all of the following elements:
- The behaviour or communication must actually be threatening or abusive in nature
- There must be intent to stir up hatred
- The behaviour must not be reasonable in the circumstances
Section 9 does not reduce these requirements. It ensures that expressing views on matters relating to sex—even controversial or unpopular views—is not automatically criminalised simply because it involves that topic.
As a professional association, we have a particular interest in ensuring that social workers can engage in legitimate policy debates and professional discussions without fear of criminalisation. Our members must navigate complex ethical terrain involving competing rights, safeguarding considerations, and service provision decisions.
Social workers engage in discussions about:
- The provision of single-sex services and spaces, including women's refuges and residential care
- Safeguarding policies that may involve sex-based considerations
- Professional practice in areas where sex and gender identity intersect
- Policy development around equalities frameworks
- Research and evidence about sex-based patterns of harm and vulnerability, and the resulting implications for social work assessments and practice
These discussions can be contentious and may involve conflicting perspectives. Section 9 protects the ability to have these professional conversations, to express concerns, to debate policy options, and to discuss evidence without fear that expressing a view on these matters could, in itself, constitute a criminal offence.
Without Section 9, there would be a chilling effect on professional discourse. Social workers might become reluctant to raise legitimate concerns or to engage in policy debates for fear that their professional views could be characterised as threatening or abusive simply because they relate to sex. This would not be in the public interest and would hinder the development of effective, evidence-based policy and practice.
Even with Section 9 applying, the threshold for the stirring up hatred offence remains deliberately and appropriately high. Misogynistic abuse, threatening behaviour towards women and girls, and communication intended to incite hatred remain clearly criminal. Section 9 does not protect such conduct.
What Section 9 protects is the expression of views in a non-threatening and non-abusive manner. This might include:
- Arguing that certain services should be provided on a single-sex basis
- Expressing concern about particular policy approaches
- Discussing evidence about sex-based patterns in safeguarding contexts
- Debating the balance between different rights in specific contexts
These forms of expression are part of democratic discourse and professional practice. They are fundamentally different from threatening or abusive behaviour intended to stir up hatred.
Furthermore, Section 4(5) of the 2021 Act already requires courts to have particular regard to Article 10 ECHR when determining whether behaviour is reasonable. This includes the principle that freedom of expression applies to views that "offend, shock or disturb." The legislation already recognises that genuinely threatening or abusive behaviour must be distinguished from expression that some may find offensive or disagreeable.
We recognise that some stakeholders may be concerned that Section 9 could weaken protections for women and girls. However, we believe these concerns are misplaced for several reasons:
First, excluding sex from Section 9 would create the anomalous situation where sex receives less freedom of expression protection than other characteristics, including transgender identity. This would be difficult to justify and could undermine public confidence in the consistency of the legislation.
Second, the core protections remain robust. Behaviour that is threatening or abusive and intended to stir up hatred against women and girls will remain criminal. Section 9 only protects discussion and criticism that does not meet the threshold of being threatening or abusive.
Third, the existing reasonable defence already provides appropriate flexibility for courts to consider context. Section 9 simply clarifies that the topic of discussion itself cannot make behaviour threatening or abusive.
Social work professionals are accustomed to navigating situations involving competing rights and interests. We recognise that protecting women and girls from hatred and abuse is essential, whilst also recognising that democratic societies require space for legitimate debate, including on contentious matters.
Section 9 strikes an appropriate balance. It ensures that the high threshold for criminal conduct—threatening or abusive behaviour with intent to stir up hatred—is maintained, whilst protecting the ability to engage in discussion and criticism that, however contentious, does not meet that threshold.
We support the application of Section 9 to the characteristic of sex because it maintains consistency with the existing legislative framework, protects legitimate professional and democratic discourse, and does not undermine the core protections against sex-based hatred that we strongly support. The stirring up hatred offence will remain a powerful tool to address genuine incitement to hatred against women and girls, whilst Section 9 ensures that this is not misapplied to criminalise legitimate expression.
Question 3. Are you content with the interpretive provision relating to the characteristic of sex?
Yes
Please use this space to give reasons if you wish to.
As a professional association representing social workers across Scotland, we support this definition on grounds of legal clarity, but with reservations.
Defining sex as "biological sex" (sex at birth) provides necessary precision for criminal law and aligns with the Supreme Court's interpretation in For Women Scotland v Scottish Ministers [2025]. This creates a workable distinction between "sex" and "transgender identity" as separate protected characteristics within the 2021 Act, ensuring both comprehensive coverage and legal clarity.
Our support depends on several factors being properly understood and applied:
Perpetrator Perception Principle: That aggravation applies based on the perpetrator's perception of the victim's sex, regardless of the victim's actual identity. This is essential. Where someone experiences misogynistic abuse because the perpetrator perceives them as female, the sex-based aggravation applies. This ensures that transgender individuals experiencing sex-based hatred receive protection based on how they are targeted, not their birth assignment. This is consistent with the approach for other protected characteristics.
Interaction Between Protections: Clear guidance is needed on how sex and transgender identity protections interact in practice. Some individuals may experience hatred relating to both characteristics, or cases where boundaries are unclear. Comprehensive guidance must be developed in consultation with both women's organisations and transgender support organisations.
Context-Specific Application: This definition applies to criminal hate crime law specifically and should not determine how "sex" is interpreted in all other contexts where social workers operate, such as service provision, healthcare, or other policy frameworks.
We would recommend:
- Disaggregated data collection on hate crimes relating to sex and transgender identity
- Regular review of any protection gaps
- Monitoring of how the perpetrator perception principle is applied
- Willingness to revisit the definition if evidence of gaps emerges
Comprehensive training for all criminal justice practitioners, including social workers, is essential. This must cover recognition of sex-based aggravation, application of the perpetrator perception principle, and handling of intersectional cases.
Question 4. Are you content with the provisions concerning data collection in relation to the characteristic of sex?
Yes
Please use this space to give reasons if you wish to.
We strongly support robust data collection concerning hate crime. Evidence-based practice is fundamental to social work, and comprehensive data is essential for understanding patterns of harm, informing policy development, and ensuring effective protection and support for those affected.
The requirement to record whether the sex being targeted is female or male is consistent with the approach taken for other protected characteristics in the 2021 Act. For example, existing provisions require recording of which race, colour, nationality, or ethnic origin is targeted, and which sexual orientation is targeted. This consistency is appropriate and ensures equivalent data collection across all protected characteristics.
This data will be essential in demonstrating the gendered nature of sex-based hate crime. Our members' practice experience and publicly available crime statistics indicate that the overwhelming majority of sex-based hatred and violence is directed at women and girls. Robust data collection will provide empirical evidence of these patterns, informing both policy responses and resource allocation.
Understanding whether hate crimes disproportionately affect women or men enables targeted interventions, appropriate service development, and evidence-based prevention strategies. As a profession committed to addressing structural inequalities, we require accurate data to understand and respond to gendered patterns of harm.
Social workers operate across criminal justice, victim support, children's services, and community settings. Data on sex-based hate crime will inform:
- Service planning and resource allocation
- Training needs for practitioners
- Early intervention and prevention strategies
- Safeguarding approaches
- Support for victims and survivors
- Community safety initiatives
Without disaggregated data, we cannot effectively assess need, target resources, or evaluate the impact of interventions.
Data collection enables monitoring of how the legislation operates in practice. It will allow scrutiny of:
- Whether protections are being applied appropriately
- Trends over time in reporting and prosecution
- Any disparities in how cases are handled
- The effectiveness of the legislation in addressing sex-based hatred
This accountability is essential. The Scottish Government, Parliament, and civil society organizations need data to assess whether the legislation achieves its stated aims and to identify any necessary adjustments.
We note that hate crimes often involve multiple characteristics. A woman may experience abuse motivated by both her sex and her race, or her sex and her disability. We encourage data systems to be capable of recording multiple aggravations and characteristics, enabling understanding of how different forms of prejudice intersect. This intersectional understanding is crucial for effective social work practice with diverse populations.
Question 5. Do you have any views on potential impacts of the proposals in this consultation on human rights?
Yes
Please use this space to give reasons if you wish to.
As a professional association representing social workers across Scotland, we consider that these proposals appropriately balance competing human rights considerations and are compatible with the European Convention on Human Rights.
The proposals advance several fundamental rights. By protecting individuals from sex-based hatred and abuse, they promote the right to private and family life under Article 8 ECHR, enabling women and girls (and men and boys) to live with dignity and security. The extension of hate crime protections to sex also advances Article 14's prohibition of discrimination by ensuring women and girls receive equivalent legal protections to other groups, addressing a current gap in the framework. Protection from hate crime is essential for enabling individuals to participate fully in society without fear of targeted violence or harassment.
At the same time, the legislation appropriately safeguards freedom of expression under Article 10 ECHR through multiple mechanisms. Section 9 protections ensure that discussion and criticism relating to sex is not automatically criminalised. The offence requires both threatening or abusive behaviour and intent to stir up hatred, creating a high threshold for criminality. The reasonableness defence provides additional flexibility, and Section 4(5) requires courts to have particular regard to Article 10, including protection for expression that "offends, shocks or disturbs." These safeguards appropriately balance protection from hatred with freedom of expression, including protection for contentious or unpopular views expressed in non-threatening and non-abusive ways.
We consider the proposals proportionate to the legitimate aim of protecting individuals from sex-based hatred. The high threshold for criminality, multiple defences, and freedom of expression protections ensure any interference with rights is no greater than necessary. We recommend ongoing monitoring of the legislation's application to ensure human rights are protected in practice, particularly that freedom of expression protections operate effectively and that protections against hatred are applied consistently.
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?
Yes
Please use this space to give reasons if you wish to
As a professional association committed to equality and non-discrimination, we assess the overall equalities impact of these proposals as strongly positive.
The most significant impact is addressing a current inequality whereby women and girls (and men and boys) lack equivalent hate crime protections compared to other groups. Our members' practice experience demonstrates the serious harm caused by sex-based hatred, particularly affecting women and girls, and legal recognition of this harm through these protections is overdue. This brings sex into parity with characteristics including age, disability, race, religion, sexual orientation, and transgender identity, all of which already benefit from hate crime protections under the 2021 Act.
The interaction between sex and gender reassignment protections requires careful consideration. Transgender identity already has comprehensive protection as a separate characteristic in the Act, including both aggravation and stirring up hatred provisions. The perpetrator perception principle should ensure transgender individuals experiencing misogynistic abuse are protected where perpetrators perceive them as female, whilst hatred motivated by transgender identity itself remains separately protected. However, clear guidance on how these protections interact in practice is essential, and we call for monitoring to ensure comprehensive coverage without gaps.
Social workers regularly support individuals experiencing hatred based on multiple aspects of their identity: women from ethnic minorities, disabled women, older women, and others facing intersecting forms of discrimination. The addition of sex as a protected characteristic enhances the framework's capacity to recognise these complex, overlapping experiences. We encourage data systems and training to properly recognise intersectionality.
We do not anticipate negative impacts on other protected characteristics. The addition of sex creates necessary parity without diminishing existing protections. We recommend ongoing monitoring to ensure all groups receive effective protection and that implementation reflects the positive equalities intentions underlying these proposals.
Question 7. Do you have any views on the potential impacts of the draft SSI on children and young people as set out in the UN Convention on the Rights of the Child?
Yes
Please use this space to give reasons if you wish to.
As a professional association with particular expertise in children and young people's welfare, we consider these proposals predominantly positive for advancing children's rights, whilst highlighting implementation considerations.
The proposals advance Article 19's requirement to protect children from violence, abuse, and maltreatment. Our members working in children's services regularly encounter girls experiencing sex-based harassment, misogynistic bullying and exploitation , online, and in their communities. Extending hate crime protections to sex provides legal recognition of this harm and additional safeguarding mechanisms for girls, whilst also protecting boys from sex-based hatred. This supports Article 3's best interests’ principle by ensuring children experiencing prejudice-motivated harm receive appropriate protection and justice, creating parity with other protected characteristics.
However, careful consideration is needed regarding children and young people who are transgender or questioning their gender identity. These vulnerable young people often experience isolation, bullying, and mental health difficulties. The interaction between sex and transgender identity protections must be clearly explained in age-appropriate guidance for schools, youth services, and families. Young people need assurance they are protected from hatred regardless of their identity, and that the legal framework recognises the complexity of their experiences.
The stirring up hatred offence has particular relevance to online spaces where young people encounter extreme content. Social workers are concerned about exposure to misogynistic content that normalises hatred of women and girls. Legal tools addressing deliberate incitement may contribute to safer online environments, though education, digital literacy, and preventative approaches remain essential alongside legal measures.
Article 12's right to be heard supports consulting children's organizations and youth groups about implementation in settings like schools. Article 2's non-discrimination principle requires monitoring to ensure effective protection for diverse groups of children, including those with intersecting identities.
Overall, these proposals advance children's rights by protecting girls from sex-based hatred whilst maintaining protections for all children. Clear, age-appropriate guidance for educational and youth settings is essential for effective implementation supporting all young people's safety and wellbeing.
Question 8. Do you have any views on the potential financial or other impacts of the draft SSI on businesses, government and the third sector?
Yes
Please use this space to give reasons if you wish to.
As a professional association, we comment from the perspective of the social work sector and third sector organizations where many of our members work. We anticipate modest implementation costs as the draft SSI adds a characteristic to existing legislative infrastructure rather than creating entirely new systems.
The primary costs relate to training for police, prosecution services, courts, and criminal justice social work on recognising and responding to sex-based hate crime. This includes understanding the perpetrator perception principle, the interaction between sex and transgender identity protections, and freedom of expression safeguards. Comprehensive training materials represent necessary investment for effective implementation.
Third sector organizations, including women's organizations, equalities groups, youth services, and victim support services, will need to update policies and training materials. However, many have long advocated for these protections and possess significant expertise on sex-based violence. Involving these organizations in guidance development can minimise duplication and build on existing knowledge, reducing overall costs whilst improving quality.
Government will need to invest in developing substantial guidance for practitioners across sectors. We recommend involving frontline practitioners, including social workers, to ensure guidance is practical and relevant. Data collection requirements represent incremental additions to existing systems rather than new infrastructure, with modest but proportionate costs given the value of evidence for informing policy and practice.
Whilst implementation has costs, effective hate crime legislation contributes to prevention by deterring harmful behaviour and challenging prejudiced attitudes. This may reduce longer-term costs associated with sex-based violence and hatred on health services, social services, and criminal justice. Social workers regularly support individuals experiencing consequences of such harm, and legal recognition may contribute to cultural change reducing these impacts over time.
We consider the financial impacts proportionate to the policy objectives of extending equivalent protections to women and girls as exist for other groups. Costs are primarily one-off implementation expenses building on existing hate crime infrastructure. We recommend adequate resourcing for training, guidance development, and data collection to ensure effective implementation and maximise the legislation's impact.
Question 9. Do you have any views on the potential impacts of the draft SSI on socio-economic inequality, communities on the Scottish islands, privacy and data protection, or the environment?
Yes
Please use this space to give reasons if you wish to.
We do not anticipate significant impacts on most of these areas, though we offer observations from a social work perspective on socio-economic inequality and access to justice.
Women experiencing socio-economic disadvantage are often particularly vulnerable to sex-based violence and hatred. Our members regularly support women in poverty, experiencing homelessness, or facing multiple disadvantages who encounter heightened vulnerability to abuse often accompanied by misogynistic attitudes. The extension of hate crime protections to sex may provide additional recognition and legal recourse for women in these circumstances, particularly where sex-based hatred intersects with other forms of discrimination. However, the legislation alone will not address underlying structural inequalities, and socio-economic barriers to accessing justice remain significant regardless of legal provisions.
Regarding Scottish islands, we do not identify specific impacts beyond those affecting Scotland generally. However, access to justice and specialist services can be more challenging in remote communities. Implementation must ensure that police, prosecutors, and support services across all of Scotland receive appropriate training and resources, with particular attention to supporting practitioners in rural and island areas who may have more limited access to specialist hate crime training.
The requirement to record whether offences target female or male sex does not raise novel data protection concerns beyond those inherent in hate crime recording generally. Standard data protection principles and established protocols will apply as they do for other protected characteristics. We do not identify any environmental impacts arising from these proposals.