Question reference: S5W-29138
- Asked by: Liam Kerr, MSP for North East Scotland, Scottish Conservative and Unionist Party
- Date lodged: 19 May 2020
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Current status: Answered by Humza Yousaf on 4 June 2020
Question
To ask the Scottish Government what analysis it has undertaken to establish the need to include variations in sexual characteristics as an aggravating factor under its proposed reforms of hate crime legislation, and whether it will place any analysis in the Scottish Parliament Information Centre (SPICe).
Answer
In his review, Lord Bracadale recommended that ‘intersex’ should be included as a separate category within hate crime legislation rather than a sub-category of transgender identity.
On 14 November 2018 the Scottish Government’s ‘One Scotland: hate has no home here’ consultation sought views on whether ‘variations in sex characteristics (intersex) should be a separate category from transgender identity in Scottish hate crime legislation’, in line with Lord Bracadale’s recommendation.
The majority of organisations who responded agreed with Lord Bracadale’s recommendation to include ‘intersex’ as a separate category from transgender identity within hate crime legislation.
Since the enactment of the Offences (Aggravation by Prejudice) (Scotland) Act 2009, it has become clear that there are concerns with listing ‘intersexuality’ as an aspect of transgender identity. ‘Intersex’ and transgender identity are now widely understood to be two separate and distinct characteristics (‘intersex’ relating to physical sex development that is different to what is generally expected of males and females, and transgender identity relating to a person’s gender identity).
Whilst the wording of the 2009 Act reflected understanding of the position at the time of enactment, this is no longer the case. Therefore the Hate Crime and Public Order (Scotland) Bill removes ‘intersexuality’ from the definition of transgender identity given the clear differences between ‘intersex’ and transgender identities. However, so as not to lessen protection already well established in legislation, the Bill includes ‘variations in sex characteristics’ as a separate characteristic within hate crime law.
The Hate Crime and Public Order (Scotland) Bill does not seek to impose the language of ‘variations in sex characteristics’ on individuals or organisations. The term ‘variations in sex characteristics’, as opposed to ‘intersex’, is used as this is an inclusive term, increasingly being adopted by stakeholders.