Consultation on amending Scottish hate crime legislation: analysis of responses

5. Intersex and transgender (Q4–Q6)

5.1 Currently, Scotland’s hate crime laws include ‘intersex’ (referring to people born with variations in sex characteristics) within the definition of ‘transgender’ (referring to people with a range of gender identities). However, Lord Bracadale’s review acknowledged that intersex was not a sub-category of transgenderism and recommended the creation of a separate category within Scotland’s hate crime legislation. The Scottish Government noted that this would ensure the legislation reflected current understanding and best practice in this area. Question 4 sought views on the introduction of a separate intersex category, while Questions 5 and 6 sought views on updating the language in this area:

Question 4: Do you think that variations of sex characteristics (intersex) should be a separate category from transgender identity in Scottish hate crime legislation? [Yes / No / Unsure]

Question 5: Do you think that the terms used in Scottish hate crime legislation in relation to transgender identity and intersex should be updated? [Yes / No / Unsure]

Question 6: If you think the terms used in Scottish hate crime legislation in relation to transgender identity and intersex should be updated, what language would you propose?

Key points

• Overall there were mixed views on whether variations of sex characteristics (intersex) should be a separate category from transgender identity in hate crime laws – 30% of respondents agreed, 47% disagreed, and 24% were unsure (representing 207, 326 and 165 out of a total of 698 respondents). There were also mixed views on the need to update terminology – 26% of respondents agreed, 46% disagreed, and 28% were unsure (representing 177, 314 and 190 out of 681 respondents). However, most organisations agreed on both issues.
• Among respondents who agreed with the creation of separate categories, there was a general consensus that variations of sex characteristics (intersex) was a physical condition (or a range of conditions) and not an expression of gender identity, and the two groups should not, therefore, be linked together in law. 
• Those opposed to the creation of separate categories were mainly opposed, on religious / moral grounds, to the inclusion of transgender identity as a category in the law, and they argued for the law to be based on biologically determined ‘sex’. 
• Some respondents, including some with specific knowledge of intersex issues, argued that creation of a separate intersex category was not appropriate at this point in time when broader consideration of intersex issues was needed.
• Respondents who favoured updating the language thought it important that the law evolved, and that individuals saw themselves reflected in the law. Respondents with reservations about this highlighted the difficulty of agreeing on acceptable terms that were clear and would stand the test of time. 
• Across these questions, respondents said it was important to consult with relevant individuals / organisations on this issue, and to be consistent with language used in other legislation.

5.2 Views relating to Questions 4 to 6 are presented below. However, the following points arose repeatedly across this set of questions, and should be borne in mind when considering the sections that follow:

• Respondents often said it was important to consult with relevant individuals / communities and representative groups on this issue – organisations, in particular, said they would ‘defer’ to the views of those with expertise and direct experience, rather than (or as well as) offering their own views on these questions. Respondents (including a range of public and third sector organisations) highlighted the work undertaken by LGBT (lesbian, gay, bisexual and transgender) organisations such as Stonewall, Scottish Trans Alliance and the Equality Network, and the position taken by these groups with regard to categorisation, language and definitions. However, other respondents explicitly stated that they did not see such groups as representing the full range of views on this issue (respondents offering this view included individuals who described themselves as being part of the LGBT community). Some respondents also expressed concern about reforms being made on the basis of demands from different lobbying groups. Additionally, respondents with a particular interest in the experience of intersex people were often clear that they did not see the main LGBT groups as representing their views, and that specific input from those with direct experience of this issue would be important in any discussions.   
• It was common for individuals to say they were unfamiliar with the terms under discussion (intersex and transgender), were unaware of or unclear about the difference between them, or had insufficient knowledge and understanding to offer a view in response to the questions asked. 

5.3 The above points were common, although not restricted to, those respondents who answered ‘unsure’ at Questions 4 and 5 (around a quarter at each question). It should also be noted that the substantive points made by respondents who said they were unsure often mirrored the points made by other respondents. The views of such respondents are, therefore, not presented separately.

Categorisation of variations of sex characteristics (intersex) and transgender identity (Q4)

5.4 Table 5.3 shows that there were mixed views on whether variations of sex characteristics (intersex) should be a separate category from transgender identity in Scottish hate crime legislation – 30% of respondents agreed, 47% disagreed, and 24% were unsure. However, organisations were more likely than individuals to answer ‘yes’ (58% compared to 27%), while individuals were more likely than organisations to answer ‘no’ (51% compared to 6%). 

Table 5.3: Q4 – Do you think that variations of sex characteristics (intersex) should be a separate category from transgender identity in Scottish hate crime legislation?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	N	%
Third sector organisations	16	62%	1	4%	9	35%	26	100%
Public sector / partnerships	12	57%	1	5%	8	38%	21	100%
Faith groups	3	33%	2	22%	4	44%	9	100%
Other organisations	7	70%	–	0%	3	30%	10	100%
Total organisations	38	58%	4	6%	24	36%	66	100%
Total individuals	169	27%	322	51%	141	22%	632	100%
Total (organisations and individuals)	207	30%	326	47%	165	24%	698	100%

Percentages may not total 100 due to rounding.

5.5 Altogether, 427 respondents (58 organisations and 369 individuals) provided further comments at Question 4, and the views offered are presented below. 

Support for the creation of separate categories

5.6 Among those respondents who agreed that variations of sex characteristics (intersex) should be a separate category from transgender identity, there was general consensus that variations of sex characteristics (intersex) was a physical condition (or a range of very varied conditions) and not an expression of gender identity. Respondents further argued that intersex people and transgender people had completely different life experiences as well as different experiences in relation to prejudice and victimisation. For these reasons, it was seen to be inappropriate for the two groups to be linked together in law.

5.7 Respondents also made the following additional points:

• That it was right that the law reflected evolving understanding in society
• That it was important that different groups in society saw themselves accurately reflected in the language of the law – with regard to hate crime laws, this could (i) improve confidence in the justice system, and encourage reporting of crimes, and (ii) raise awareness of the experiences and needs of particular groups at both official and public levels
• That correct differentiation in the law ensured clarity and the provision of appropriate support and protection for all groups.

5.8 In most cases respondents answering ‘yes’ to Question 4 thought it was right that both groups should continue to be included in hate crime law covered by separate categories. However, there was some disagreement on this issue, among individuals in particular, with a number of different views offered on this point:

• Some queried whether the category as currently defined caused problems.
• Some did not think that there was sufficient evidence that one or other (or both) of these groups were victimised as a consequence of their intersex status or gender identity and therefore required the protection of hate crime laws.
• Some suggested that intersex did not merit a category on its own but should be captured within the current ‘disability’ category, or a new sex-based (rather than gender-based) category within hate crime legislation.

5.9 Additionally, some respondents highlighted the importance of seeking the views of intersex people, and groups representing their interests on this issue. However, it was also stated by some that intersex people (i) did not necessarily see themselves as part of a homogenous group, and (ii) did not wish to be covered by hate crime laws (at least not at this point in time, given the current limited understanding of intersex-related issues, and the needs of those affected by such conditions). In some cases, respondents emphasised the importance of a broader cross-policy approach to considering and responding to the needs of this group – some noted the forthcoming Scottish Government consultation on intersex as relevant to considerations in this area.     

5.10 Some respondents (mainly individuals) noted their general opposition to hate crime laws based on protected characteristics, but said that it was important that intersex and transgender identity were treated separately if such laws continued to be in place. These respondents drew a distinction between the ‘objective’ biological basis of an individual’s intersex status as opposed to the ‘subjective’, ‘psychological’ or ‘choice-based’ nature of gender identity. They also argued that any reformulated hate crime categories would need to be clearly defined, and that the law in this area would need to include appropriate protections for freedom of speech.

Opposition to the creation of separate categories

5.11 Among those opposing the creation of a separate category covering intersex, a number of different reasons were offered.

5.12 Most commonly, respondents (individuals and faith groups in particular) explained that their opposition reflected wider concerns about hate crime legislation – that is, concerns about laws protecting specific groups within society and the increasing complexity of laws based on ‘ever-changing’ sub-groups, and concerns about the potential impact on freedom of speech. Further, this group often expressed objections (on religious or ‘moral’ grounds) to the concepts of ‘gender’, ‘transgender identities’ and to non-heterosexual sexual orientations and thought that the law should only recognise biologically determined sex (i.e. male and female) and heterosexuality. They were also concerned about preserving the right to debate such issues. Respondents offering such views often said that the current transgender category should be removed from the law. Some did, however, draw a distinction between transgender identity and intersex (which they recognised as having a biological basis) and medically diagnosed gender dysphoria and transsexual status in explaining their views. Thus, some were content with intersex / gender dysphoria (and, in some cases, transsexual status) being recognised in law, but not transgender identity. Some suggested that the transgender identity category might be retained if its meaning was restricted to the condition of gender dysphoria and gender reassignment. These respondents expressed similar views at Questions 5 and 6.

5.13 Those offering more specific reasons for not wishing to see the creation of a separate intersex category made a range of points, including the following: 

• The current categories were adequate and / or were in line with other legislation (e.g. the Equality Act 2010).
• The very small numbers of intersex people in the population did not merit a separate category.
• There was no clear evidence of (i) need based on the incidence of hate crimes and / or (ii) the benefit that would be derived from such a change.

Updating the terms used (Q5 and Q6)

5.14 Table 5.4 shows that there were also mixed views about whether the terms used in relation to transgender identity and intersex should be updated – 26% of respondents agreed, 46% disagreed, and 28% were unsure. However, organisations were notably more likely than individuals to agree that these terms should be updated (63% compared to 22% respectively). In contrast, individuals were more likely than organisations to disagree with this (50% compared to 6%). Among organisations, faith groups were least likely to think that terminology should be updated (just one faith organisation gave this view, while two thought the terms should not be updated and five were unsure).   

Table 5.4: Q5 – Do you think that the terms used in Scottish hate crime legislation in relation to transgender identity and intersex should be updated?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	N	%
Third sector organisations	18	67%	1	4%	8	30%	27	100%
Public sector / partnerships	14	67%	1	5%	6	29%	21	100%
Faith groups	1	13%	2	25%	5	63%	8	100%
Other organisations	8	89%	–	0%	1	11%	9	100%
Total organisations	41	63%	4	6%	20	31%	65	100%
Total individuals	136	22%	310	50%	170	28%	616	100%
Total (organisations and individuals)	177	26%	314	46%	190	28%	681	100%

Percentages may not total 100 due to rounding.

5.15 Altogether, 357 respondents (53 organisations and 304 individuals) commented at Question 5, and 226 respondents (46 organisations and 180 individuals) commented at Question 6. There was a great deal of commonality in the points raised at these questions and so the responses to each are reported together in the sections below.

Support for updating the terms used 

5.16 Respondents who thought the terms used in relation to transgender identity and intersex should be updated largely reiterated the points made by those who thought that a separate intersex category should be created. That is, they thought it was important that (i) the law – and the language of the law – reflected change over time in wider society, and that (ii) different sub-groups within the population saw themselves accurately reflected in the law. The use of up-to-date inclusive language, which reflected that used by relevant groups, was seen as important to the overall objective of ensuring modern, relatable and effective legislation – see also paragraph 5.7. 

5.17 Respondents also noted the importance of:

• Ensuring that the language adopted was, as far as possible, ‘future-proofed’ – some argued that broad ‘umbrella’ or ‘catch all’ terms were more likely to stand the test of time, while others stated a preference for more specific terms as they thought that broader terms were often vague and prone to changing their meaning  
• Using clear, simple language and well-defined terms that were easily understood by the general public
• Covering the full diversity of gender identities
• Aligning the language used with that used in other legislation (current and proposed) and official contexts – some argued that the language and categories in the Equality Act 2010 should be used across other pieces of legislation in a correct and consistent way, while others thought that the Equality Act terminology might also be updated; occasionally, respondents drew attention to the ongoing consideration regarding reforms to the law relating to gender reassignment, and a forthcoming Scottish Government consultation on intersex.

Opposition to or reservations about updating the terms used 

5.18 As noted above, a substantial proportion of individual respondents used Questions 5 and 6 to reiterate their concerns about hate crime laws in general and the inclusion of a transgender category in particular (see paragraph 5.12), without commenting directly on the updating of the terminology used.

5.19 However, among those respondents who did comment directly on their reservations about or opposition to the updating of terminology, there were concerns about:

• The risk of confusion if any updating resulted in inconsistencies with language used in other contexts
• The difficulty of coming up with terms that were clear and well defined and did not date quickly – respondents often also highlighted a perceived lack of clarity with regard to current terminology
• The challenge of agreeing on language that was acceptable to a full spectrum of people, given that this was a controversial and contested issue for some groups.  

Suggested language and terminology

5.20 Respondents who put forward proposals for language and terminology related to transgender identity offered the following main points:

• Language relating to transgender identity: Organisational respondents largely agreed that the terms ‘transvestite’ and ‘transsexual’ were outdated and should be replaced. Regarding alternatives, organisational respondents – including those representing the LGBT community – generally favoured ‘trans’ and / or ‘transgender’ or variations on this (e.g. ‘transgender person’, ‘trans man’, ‘trans woman’) as overall terms which covered a range of sub-groups. However, some expressed the view that ‘non-binary’ and (less often) ‘cross-dressing’ should also be explicitly referenced in the legislation. In contrast, individuals offered a greater mix of views on language. Some agreed with organisational respondents in supporting the use of ‘trans’ or ‘transgender’ and ‘non-binary’. However, there was also a distinct view among individuals that the terms ‘transvestite’ and ‘transsexual’ were not outdated and were, in fact, in current use and were the preferred terms of some individuals and groups. These respondents wished to see these terms retained in the legislation. 
• Language relating to intersex: Respondents were less likely to offer alternatives for the term ‘intersex’, although some stated a preference for ‘intersex people’ or ‘intersex status’ or ‘variation of sex characteristics and intersex’. However, some respondents stressed that variation of sex characteristics or intersex covered a very wide range of conditions and that those affected did not necessarily see themselves as part of a homogenous group or community to which a single ‘label’ could be applied. As such, they expressed a preference for the more descriptive phrase ‘differences in sex development’ or DSD when referring to this diverse group of people. (It should be noted, however, that some respondents offering such views also queried whether and how DSD (or intersex) should be included in hate crime legislation at all – see also paragraph 5.9).    

5.21 Some respondents also expressed support for an ‘issue based’ approach to terminology, or they put forward more descriptive phrases which avoided the use of specific labels that might date quickly. Suggestions included:

• People whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth (offered by one organisation as a descriptor for transgender)
• Variations in sexual characteristics, identity and orientation
• People who consider their gender to be neither purely female nor male
• Non-traditional gender expression.

5.22 In addition to the above points, respondents occasionally made more detailed points highlighting the sensitivities in agreeing appropriate language – for example: ‘trans’ and ‘intersex’ should be used as adjectives (e.g. trans people / man / woman); the suffix ‘-ism’ should be avoided as it suggested a belief system rather than an objective state.