Seòmar agus comataidhean

Gender identity as outlined in paragraph 80 of the Explanatory Notes refers to an individual’s gender identity where this is different from their sex at birth.

The phrases ‘male-to-female’ and ‘female-to-male’ transgender person are not specifically defined in the Bill because it is not considered necessary for those phrases to be given any special definitions for the purposes of the Bill.

Within the Bill’s definition of ‘transgender identity’, paragraphs (a) and (b) (‘a female-to-male transgender person’ and ‘a male-to-female transgender person’) are included to cover trans men and trans women. For example, this includes those who identify as male but were registered as female at birth, and those who identify as female but were registered as male at birth.

In line with the definition of gender identity in the answer to S5W-29943 on 7 July 2020, someone who has a gender identity that is different from their sex at birth may include someone whose perception of their own gender does not correspond with their sex at birth, such as a trans man, a trans woman, or a non-binary person.

Someone who does not have a gender identity different from their sex at birth may include someone whose perception of their own gender corresponds with their sex at birth, such as a non-trans person.

All answers to written Parliamentary Questions are available on the Parliament's website, the search facility for which can be found at: http://www.parliament.scot/parliamentarybusiness/28877.aspx

We published a paper in December 2019, summarising progress made by the Victims Taskforce during its first year of operation - https://www.gov.scot/binaries/content/documents/govscot/publications/minutes
/2019/12/victims-taskforce-papers-december-2019/documents/
paper-4-year-one-of-the-victims-taskforce/paper-4-year-one-of-the-victims-taskforce/govscot%3Adocument/Paper%2B4%2B-%2BYear%2Bone%2Bof%2Bthe%2BVictims%2BTaskforce%
2B-%2BDecember%2B2019.pdf

In addition, a work plan has been published setting out the aims of the Taskforce over five key work streams, with a set of detailed actions under each work stream - https://www.gov.scot/binaries/content/documents/govscot/publications
/minutes/2020/06/victims-taskforce-papers-june-2020/documents/
victims-taskforce-updated-work-plan/victims-taskforce-updated-work-plan/govscot%3Adocument/Victims%2BTaskforce%2B-%2BSecretariat%2B-%2B6th%2BMeeting%2B-%2B2020-06-10%2B-%2BUpdated%2BWork%2BPlan.pdf

Progress against these actions includes: commissioning a major service design project, ‘Transforming Services for Victims and Witnesses’, to inform the development of a victim-centred approach; issuing a questionnaire on the current provision of trauma-informed training in justice sector organisations; providing funding for NHS Education Scotland to work on the development of a trauma informed and trauma responsive workforce in the justice system; and establishing a Victims Reference Group and a Survivors Reference Group to enable the Taskforce to hear victims’ experiences directly.

Whilst progress against these actions will continue to be monitored, at the last meeting of the Taskforce on 10 June 2020, members considered the effect of the Covid-19 outbreak on victims. All papers from this meeting have been published on the Scottish Government website https://www.gov.scot/publications/victims-taskforce-
papers-june-2020/ . In response to these discussions, further consideration is being given to adapting and reprioritising the current work plan to ensure that actions focus on mitigating the impact of Covid-19 on victims and the needs of victims are a central consideration in the recovery of the justice system.

The application of hate crime legislation is based on the motivations of the perpetrator (and thus not on whether a victim actually shares one or more of the characteristics protected by the Bill).

The latest Crown Office and Procurator Fiscal Service statistics show that, in 2019-20, 41 charges were reported with an aggravation of prejudice relating to ‘transgender identity’ as defined under the Offences (Aggravation by Prejudice) (Scotland) Act 2009. The definition in the 2009 Act is wide enough to encompass 'non-binary persons', 'persons who cross-dress' and persons with 'variations in sex characteristics' (although those are not the terms used in that Act).

In terms of specific evidence in relation to 'variations in sex characteristics', although it is noted that more research is required, the Equality Network believe that people with variations in sex characteristics, or people perceived to have variations in sex characteristics, can face hate crime. In one of its hate crime research reports , they found that 29% of respondents with variations in sex characteristics had experienced hate crime based on having variations in sex characteristics (although noting the small number of respondents).

Section 14(7) of the Hate Crime and Public Order (Scotland) Bill defines ‘transgender identity’, which is a broader definition than the protected characteristic of gender reassignment. It is recognised, for example by the Equality and Human Rights Commission, that because the Equality Act 2010 bases the protection it provides on the process of undergoing gender reassignment, transgender people may not all have legal protection from discrimination; for example those who do not intend to take steps relating to gender reassignment because of age or medical condition. Transgender identity as defined in the Bill more broadly encompasses all people whose gender identities are different from their sex at birth. This includes those who identify as male, but were registered as female at birth, those who identify as female but were registered as male at birth, non-binary people and cross-dressing people.

The phrases ‘non-binary person’ and ‘person who cross-dresses’ are not specifically defined in the Bill because it is not considered necessary for those phrases to be given any special definitions for the purposes of the Bill.

There is already a statutory aggravation where an offence is aggravated by prejudice relating to transgender identity. This is in the Offences (Aggravation by Prejudice) (Scotland) Act 2009, which is to be repealed by the Bill. In that 2009 Act, there is a definition of transgender identity which includes the terms ‘transsexualism’ and ‘transvestitism’. Those terms are not used in the Bill because the Bill seeks to use more modern language. The term ‘person who cross-dresses’ is used in the Bill to ensure that the protection provided by the word ‘transvestitism’ is not lost.

The term ‘non-binary people’ is also used as modern language referring to a group currently protected by the definition in the 2009 Act. The definition of transgender identity in the 2009 Act includes ‘any other gender identity that is not standard male or female gender identity’.

Information is not held centrally on the number of meetings between justice social workers and people who have committed offences during the COVID-19 lockdown.

There is regular engagement between the Scottish Government and Social Work Scotland to monitor the impact of COVID-19 on justice social work and the delivery of community orders, and to discuss any issues or concerns arising. Guidance was issued to Chief Social Work Officers in each local authority area on 20 March to encourage local areas to prioritise cases based on risk of harm and to move to phone contact if and when appropriate.

While data is not collected by the Scottish Government on individual meetings, we are aware that individuals on supervision by justice social work are being seen face-to-face in offices and on home visits where this is assessed as necessary and proportionate based on risk. Most contact continues to be via telephone or video call. Prison-based social work continues to operate, prioritising statutory work, with some teams able to operate within prisons and some remotely.

Further guidance was issued to Chief Social Work Officers on 18 June 2020 to provide an update on priorities and expectations as restrictions begin to ease.

As is the case in the wider community, new prisoners displaying symptoms of COVID-19 can be tested to know whether or not they have the virus. Only those individuals who have had close contact with a confirmed case are isolated for 14 days.

Operational measures taken by prison and health staff have been effective in reducing the spread of COVID-19 across the prison estate. As of 8 June, there were no confirmed cases in Scottish prisons.

The law on arrest and police custody was substantially reformed by the Criminal Justice (Scotland) Act 2016 to provide a modern framework, consistent with the requirements of Article 5 of the European Convention on Human Rights. Section 14 of that Act sets out the statutory test which must be applied by Police Scotland when deciding, in each individual case, whether or not an accused person can be detained in custody.

A proposal that all persons arrested for coughing or spitting on police officers during the COVID-19 pandemic should be automatically detained would not be consistent with this statutory framework.

The Lord Advocate’s Guidelines on the Liberation of Accused persons in the context of COVID-19 enable and support the detention of accused persons in appropriate cases, consistent with the legal framework which applies

The Crown Office and Procurator Fiscal Service will take action to protect public safety, and the safety of essential front-line workers. Any person who deliberately endangers life, or spreads fear and alarm by pretending to do so, will be dealt with robustly. COPFS is working closely with the Police Service of Scotland to ensure the continued effective investigation and prosecution of crime, with a firm focus on public safety.