Last night, the Scottish Parliament approved a Scottish Statutory Instrument (SSI) to add ‘sex’ as a protected characteristic to Scottish hate crime law. (An SSI is a way for the Scottish Government to make limited pieces of new law without the lengthy and detailed debate in Parliament that a bill requires.) This means that, along with the existing characteristics of age, disability, race, religion, sexual orientation, transgender identity and variations in sex characteristics, crimes can be prosecuted as “aggravated” by prejudice based on sex, and it is an offence to stir up hatred on the grounds of sex.

Sounds like a pretty good thing right? At Equality Network and Scottish Trans, we strongly support all steps taken to address the violence and misogyny that women face. Yet we know that organisations in the women’s sector do not think that adding ‘sex’ to hate crime law will effectively do this. In fact, they say it could harm attempts to tackle the violence and misogyny that women face (new tab).

The new characteristic of ‘sex’ has also been defined by copying last April’s Supreme Court ruling – that is as “biological sex at birth”. We tried over the course of many months to explain to the Scottish Government that this was not the right or necessary way to define this characteristic, that it could change the meaning of the sexual orientation characteristic in hate crime law, and that in our view it sets a harmful precedent for future Scottish legislation. Trans people will be protected by the new sex characteristic where they experience hate crime motivated by their gender identity despite this choice of definition (e.g., a trans woman will be protected from a hate crime that is motivated by sexism towards women), but we have serious concerns that many gender critical organisations will now campaign repeatedly for this definition to be used in all Scottish law going forwards. In other situations, that is likely to have a hugely negative impact on how trans people are treated by the law and erodes our right to legal gender recognition.

The SSI was approved by 110 votes to 7, with 1 abstention. The Scottish Greens voted against approving it, and Maggie Chapman MSP raised some of these concerns directly in the Chamber. Read the official report of what was said in the Chamber about the SSI, on pages 197-199 (new tab)

Thank you to the hundreds of people who contacted the Scottish Government to object to them taking this approach. The Cabinet Secretary for Justice and Home Affairs wrote to us at the end of last week, acknowledging the large number of people who had been in touch. She said that:

“I want to be absolutely clear that trans men and women are valued in our society, and we remain firmly committed to ensuring their rights are upheld, and that they feel safe, included and protected from prejudice.”

And that:

“Finally, I want to address your concern about precedent. The Scottish Government will always consider relevant policy which relates to sex as a characteristic on a case by case, informed by the specific policy context arising as is the case with hate crime law.”

Read the full letter we received from the Cabinet Secretary from Justice and Home Affairs (new tab)

We continue to believe that the Government has got this wrong, having carefully considered all of the reasons they’ve provided. And while we’re somewhat reassured that they have committed to always considering the issue of how to define sex in the law and policy on a case-by-case basis, we will likely need your help again in the future to make sure that trans people can be recognised as who we truly are when it really matters.

Read the briefing we sent to MSPs about the SSI (new tab)