Home »
TL;DR – The Scottish Government is using the Supreme Court ruling’s definition that “sex” means “biological sex at birth” in Scottish hate crime legislation when there’s no good reason for them to. We’d like you to help us ask them why, and how they think this decision, which has been made in LGBT+ History Month, will be remembered in the years to come. You can do that here: Email the Scottish Government
The Scottish Government has laid a Scottish Statutory Instrument (SSI) to add ‘sex’ as one of the characteristics that is covered by hate crime law in the Hate Crime and Public Order (Scotland) Act 2021.
An SSI is a type of ‘secondary legislation’ that allows Parliament to make changes to the law much more quickly than passing a whole Bill: Scottish Parliament website information on secondary legislation
They have defined the new characteristic of ‘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.” (our emphasis added)
This definition is the same as April’s Supreme Court ruling in the case of For Women Scotland vs. Scottish Ministers on the meaning of “sex” in the Equality Act 2010.
We think that using the same definition of “sex” as used by the Supreme Court:
We explained these concerns in detail in our response to the Scottish Government’s consultation on the draft SSI, which closed in October: Equality Network and Scottish Trans response to the consultation (new tab)
We have also raised these concerns directly with the Scottish Government throughout the last few months. Some examples of letters we have sent to the Scottish Government since they began consulting on this SSI are:
Equality Network and Scottish Trans letter to the First Minister 4.9.25
Equality Network and Scottish Trans letter to Cabinet Secretary for Social Justice 3.2.26
A summary of these concerns is below.
The Supreme Court ruling has already had a significant impact on trans people’s equality and human rights, and our ability to go about our daily lives. This has mostly been as a result of the Equality and Human Rights Commission (EHRC) publishing an “interim update” on how the law now works, and a draft Code of Practice that will have legal weight if/when it is approved by the UK Government. In both of these, the EHRC said that trans people must now not be allowed in any services or spaces provided separately for women and men that align with our gender identity. Instead, we must use services or spaces for our “biological sex” or separate spaces to others. Essentially, our options are exclusion or segregation. This has resulted in trans people (and others, particularly gender non-conforming women) facing increased discrimination, harassment and abuse: TransActual’s “Trans Segregation in Practice” Report (new tab)
It is still unclear whether the EHRC’s view of the law is correct. It is being challenged in a number of legal cases, and there have been several Employment Tribunal decisions that have said that it isn’t correct. But what is certain is that this interpretation, whether correct or not, has already caused real harm.
There is no reason for the Scottish Government to use the same definition that has caused this harm in this SSI. The Supreme Court ruling related only to the definition of “sex” in the Equality Act 2010. There are a number of protected characteristics in the Hate Crime and Public Order (Scotland) Act 2021 that are defined differently to how they are defined in the Equality Act 2010. These include disability and transgender identity. Variations in sex characteristics is also covered by hate crime legislation – but is not a protected characteristic in the Equality Act 2010.
The Scottish Government has justified using the definition as being needed to prevent overlap between the characteristics of ‘sex’ and ‘transgender identity’. We completely disagree with this explanation.
Currently, trans people of all genders who are the victim of a crime motivated by transphobic hatred can have that crime prosecuted with an “aggravation” of transgender identity – i.e. as a hate crime.
Cis women and trans women who are the victim of a crime that is motivated by sexism or misogyny are currently not able to have that crime prosecuted with an “aggravation” – i.e this would not be recognised as a hate crime.
Hate crime is all about the motivation of the perpetrator – not the identity of the victim. A physical assault where someone uses homophobic slurs can be prosecuted as a homophobic assault, no matter the sexual orientation of the victim.
This means that trans women will still be able to have sexist crimes that they experience prosecuted as hate crimes even though the Scottish Government has chosen to use this definition. We obviously think this is a very good thing. And we don’t want anyone to be worried that trans women won’t be protected from sexist crimes – they will (as, of course, will cis women).
But that doesn’t detract from the fact that the Scottish Government is choosing to use the Supreme Court definition, when there is no good reason to do so. There are some very real problems created by doing that, explained below.
We think that the SSI makes changes to the definition of the existing characteristic of ‘sexual orientation’. This is because the characteristic of sexual orientation is defined as:
“A reference to sexual orientation is a reference to sexual orientation
towards—
(a) persons of the same sex,
(b) persons of a different sex, or
(c) both persons of the same sex and persons of a different sex.”
Right now, there is no definition of “sex” in the Hate Crime and Public Order Scotland Act 2021. But if this SSI is approved, there will be – and it will be “sex at birth”.
Redefining the characteristic of ‘sexual orientation’ in this way will result in ‘sexual orientation’ being defined in a way that is out of step with how a large number of LGBTQIA+ people define our sexual orientations ourselves. Many LGBTQIA+ people do not consider our sexual orientation to be defined exclusively on the basis of “biological sex” – for example many women who are exclusively attracted to other women, and who describe and define themselves as lesbian, include both cis and trans women within their understanding of the word ‘woman’.
The change made by the SSI also totally contradicts the inclusion of protection in hate crime legislation for intersex people/people with variations in sex characteristics. That characteristic is defined as people who are:
“born with physical and biological sex characteristics which, taken as a whole, are neither—
(a) those typically associated with males, nor
(b) those typically associated with females”.
Yet the definition in this SSI will mean we end up with a law that both recognises intersex people/people with variations in sex characteristics as being people for whom sex is not simply binary and, in the very next line, defines sex as a completely binary concept fixed at birth. These definitions are totally incompatible.
We want to emphasise again that even though we think this is very much the wrong choice by the Scottish Government – trans women will still be protected from sexist hate crime even though they’ve chosen to use this “sex means biological sex” definition.
But it is completely inevitable, now that the Government has chosen to use that definition once, that gender critical organisations will constantly campaign for them to use it everywhere going forward. They will point to this SSI and say – “you aligned with the Supreme Court ruling here, so why not do it again?”
In future law and policy, defining “sex” as biological sex or sex at birth will inevitably cause significant harm to trans people’s equality and human rights. Why? Well – because this approach fundamentally undermines what trans equality and human rights are built on.
Trans people are people whose gender identity does not correspond with the sex we were assigned at birth. Situations where we are particularly likely to face inequality, discrimination, harassment and poorer experiences than the general population are those that treat men and women differently – whether this is in law, policy, or practice. This is because our needs can rarely be met by treating us as though we are simply our sex assigned at birth. Doing so fundamentally contradicts our deeply held understanding of our gender identity and often results in inappropriate treatment that completely fails to meet our needs.
If, moving forward, a “sex at birth” definition becomes the norm, we will see the clock turn back many decades on trans people’s rights in Scotland and across the UK.
This was the Scottish Government’s first opportunity to show how it would respond to the Supreme Court ruling – with actions, not just words. And they’ve chosen to use a definition of “biological sex at birth” that has already caused significant harm to trans people, and caused international human rights experts to sound the alarm about the direction of travel in the UK: Letter from Commissioner for Human Rights of the Council of Europe to the UK Parliament (new tab), Statement from seventeen UN experts (new tab)
It is absolutely vital that they hear from people who want to ask why they’ve made this decision. You can ask them here: Email the Scottish Government
In 2021, Scotland reformed our hate crime legislation. During the parliamentary process, there was significant discussion about whether to add ‘sex’ as a protected characteristic in the law. Expert organisations who work on gender equality and violence against women and girls argued that this wouldn’t effectively protect women (new tab).
In response, the Government set up an expert working group to come up with recommendations on what would work. They also added a power to the hate crime bill that would allow them to add ‘sex’ as a characteristic to hate crime law later via statutory instrument if that was what the expert group recommended. Instead, the expert group recommended a standalone bill that specifically tackled misogyny (new tab).
The Scottish Government initially accepted the expert group’s recommendations (new tab) and consulted on a bespoke misogyny bill in 2023. However, in May 2025 they announced that they would not be moving forward with the Misogyny Bill despite having previously accepted the recommendations to address the harm that women faced through a bespoke bill. Instead, they would add ‘sex’ as a characteristic to the Hate Crime and Public Order (Scotland) Act 2021 (new tab).
30 Bernard Street Edinburgh EH6 6PR
+44 (0)131 467 6039 info@scottishtrans.org
Scottish Trans is part of the Equality Network
Scottish Trans is the Equality Network project to improve gender identity and gender reassignment equality, rights and inclusion in Scotland. The Equality Network is a leading Scottish lesbian, gay, bisexual, transgender and intersex (LGBTI) equality and human rights charity.
The Equality Network is a registered Scottish charity: SC037852, and a company limited by guarantee: SC220213.
We are grateful for funding from the Scottish Government
