History of Women and Hate Crime Law

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A gender aggravator to crimes was first mooted in the Draft Criminal Code for Scotland some seventeen years ago. Later the same year Robin Harper MSP lodged an amendment to the Criminal Justice (Scotland) Act 2003 to make provision for offences aggravated by disability, sexual orientation, age and gender. Mr Harper’s amendment was not accepted but did lead to the establishment of a Working Group to further consider what improvements could be made to hate crime legislation.

Members of this Working Group included representatives from Equality Network, Stonewall and Engender. 102 individuals and groups responded to the main consultation (although both Engender and Scottish Women’s Aid withheld their submissions from publication). A Hate Crime Report was published in October 2004 detailing 14 recommendations for the Government – protection for transgender identity was in, along with sexual orientation and disability, but women were out.

The minutes of the meetings of the Working Group seem to be lost to the archives but the final report does indicate that a number of women’s groups called for the characteristic of gender to be added, in opposition to the views of the Scottish Executive’s Violence Against Women Unit:

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Women and the Hate Crime Bill: Nothing about us without us

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On Tuesday 24th November For Women Scotland will give evidence to the Scottish Parliament’s Justice Committee on the controversial Hate Crime and Public Order Bill.

In our written submission, we made clear our objection to Part 2 of the bill, which seeks to extend the offence of stirring up hatred, but also our objection to the non-inclusion of ‘sex’ as a protected characteristic.

There have already been three oral evidence sessions and we have been closely monitoring the discussions.

Across the three sessions, there have been a total of 32 witnesses, two thirds of whom were men. The Committee, of course, has limited control over the make-up of the panels, but we note that, once again, women have been outnumbered in discussions about an important aspect of law reform that will impact them.

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Engender AGM

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At Engender’s AGM on Saturday, the CEO, Emma Ritch made an interesting comment: “I would like to be clear here that Engender is not funded for a huge amount of engagement and are not presenting our work as advocating on behalf of the members or as representative of women. The colleagues at the Scottish Women’s Convention are funded in this way and we are glad to hear from members but our work is quite technical. I would not want to give the impression that membership privileges certain perspectives above others.”

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RSHP Education

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The national resource for relationships, sexual health and parenthood (RSHP) education for children and young people has changed quite considerably since it first came online at rshp.com, when the Scotsman reported on parents concerns about 5 year-olds being told they could decide whether to be a boy or a girl (see our earlier blog post).

This aspect, along with several others, has thankfully now been removed, and we welcome the improvements. However, there are still considerable concerns over the content.

Mr Ben (on Twitter @crit_gen) sent us the letter that she wrote to John Swinney, Cabinet Secretary for Education, outlining the main issues. We have reproduced it here with her permission to help other parents write their own letters – Mr Swinney can be emailed at DFMCSE@gov.scot

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For Women Scotland Response to the UK Government GRA Announcement

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While we are cautiously pleased to see that the statement by Liz Truss has committed to single sex spaces, we would like more clarity on how the Government intends to strengthen and enforce the Equality Act, esp in the face of the continued determination by activists to undermine the law.

This is of especial concern to women in Scotland where the Scottish Government and their funded organisations have introduced law and policy which mean that the provisions for single sex services and spaces are almost impossible to invoke.

We believe that for equality law to have any meaning, it should not be possible for organisations, councils or devolved powers to opt in or out of it. Nor should the enforcement depend on the whim of activists. It must be consistent and defined.

It should not, for example, be possible for organisations to claim they are “single sex” but to allow anyone access on the basis of self ID. It should not be possible for legal and biological males to take jobs or opportunities reserved for women.

Women should not face disciplinary action or termination of employment for saying sex is real. Organisations should not decide their policy of self ID overrides law and refuse access to groups who wish to uphold Equality Act exceptions. All this is happening, and, in Scotland, getting worse.

We hope both Governments will address this and this will mark the end of “Stonewall law”: to this end we hope that proper, robust guidance on the Equality Act will be issued swiftly. We look forward to tomorrow’s Q&A in expectation that some of this will be covered.

News Release – Judicial Review

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Scottish Government Faces Judicial Review for redefining “Woman” to Include Men

Re: Gender Representation on Public Boards Act 2018 

On 31st July 2020, a pre-action letter was sent to the Scottish Government by lawyers acting on behalf of For Women Scotland expressing significant concerns that a law intended to address historical under-representation of women on public boards is fundamentally flawed and that the Scottish Government has exceeded its authority in redefining “woman”.

The government responded on 19th August, saying they are “satisfied that the Gender Representation on Public Boards (Scotland) Act 2018 and subordinate legislation made and statutory guidance published under it are within legislative and devolved competence.”

Although disappointed the matter could not be resolved informally, For Women Scotland have instructed solicitors Balfour + Manson to lodge a petition to proceed with a judicial review. This has now been registered and accepted by the Court of Session. 

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Letter to Delegated Powers and Law Reform Committee

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The Delegated Powers Memorandum for the Hate Crime and Public Order (Scotland) Bill contains a clause that states: “Regulations under this section may modify section 14 (meaning of the characteristics) by adding interpretative provision relating to the characteristic of sex. They may also make incidental, supplementary, consequential, transitional, transitory or saving provision, and make different provision for different purposes.”

This means that if the characteristic of “sex” is added to the Hate Crime legislation at a later date then it can be redefined by a Committee, without public consultation or Parliamentary scrutiny, and may differ from the definition given in the Equality Act:

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Letter to Richard Leonard

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We sent the following email to Richard Leonard, leader of the Scottish Labour Party, on 13th August, calling for him to support Jenny Marra MSP.

Dear Mr Leonard,

We are writing to register our disgust at the bullying tactics of Labour affiliated group LGBT Labour Scotland targeted at Jenny Marra MSP.

For Women Scotland is a feminist grassroots group which campaigns to protect the rights of women and children, and in particular, women’s sex-based rights as currently enshrined in UK law. We formed initially to oppose the Scottish Government’s proposals to enable individuals to change their legal sex based on a statutory declaration (often referred to as ‘gender self-identification’ or self-ID). The Government has undertaken two consultations on these reforms in 2017 and 2019, but has paused its plans for the time being due to the pandemic.

We were delighted that UK Labour’s 2019 manifesto contained a commitment to “ensure that the single-sex-based exemptions contained in the Equality Act 2010 are understood and fully enforced in service provision”, as well as a commitment to end mixed sex wards. And we were incredibly grateful that Jenny Marra, Elaine Smith and Johann Lamont sponsored a series of events in the Scottish Parliament at the start of this year to enable debate about reform of the Gender Recognition Act and how those reforms might interact with women’s sex-based rights under the Equality Act.

Many public authorities have moved ahead of the proposed law change and introduced self-ID policies. For instance, the Scottish Prison Service’s transgender prisoner policy states that if a male prisoner identifies as a woman, there is a presumption that he would be accommodated in the female prison estate. Many NHS boards have also adopted policies based on self-ID principles.

It appears that NHS Lanarkshire have recently published a policy on supporting trans staff. We are concerned that in drawing up this policy, NHS Lanarkshire have not taken into account the impact on women. We are also concerned that it uses terminology such as ‘assigned at birth’. Women are oppressed on the basis of their sex, which is immutable and observed (not assigned) at birth. It was this point that Jenny Marra highlighted in her tweet:

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