Questions related to the Scottish Government's stance on gender identity: FOI release

Information requested

1. Does the Scottish Government believe that there is a sex other than 'male' or 'female'?

2. Is it the view of the Scottish Government that human beings are sexually dimorphic? If not, please provide references to scientific evidence to support this view.

3. Does the Scottish Government believe that individuals who identify as 'non-binary' are neither male nor female?

4. What is the Scottish Government's working definition of 'non-binary'?

5. What evidence does the Scottish Government have that individuals who identify as 'non-binary' are experiencing crimes motivated by hatred based on their non-binary identity?

Response

1. The Scottish Government does not have an official definition of sex, and gives it its ordinary meaning. The Equality Act 2010 says that in relation to the protected characteristic of sex, a reference to a person who has a particular protected characteristic is a reference to a man or to
a woman. A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.

2. It is not the role of the Scottish Government to have a view on this matter. However, there is general scientific consensus that, although exhibited at lower levels than some other species, human beings are considered to be sexually dimorphic.

3. The Scottish Government does not have an official definition of non-binary. One dictionary definition describes non-binary as “relating to or being a person who identifies with or expresses a gender identity that is neither entirely male nor entirely female” and can be found online at https://www.merriam-webster.com/dictionary/nonbinary

4. See answer 3.

5. The Developing Information on Hate Crime Recorded by the Police in Scotland report (https://www.gov.scot/publications/developing-information-hate-crime-recorded-police-scotland/) was published on 27 February 2019. The police recorded 6,736 hate crimes in 2017-18, 16% had a sexual orientation aggravator and 1% transgender.

Hate crime statistics in Scotland (https://www.copfs.gov.uk/publications/equality-and-diversity) show that in 2019–20 the police recorded 1,486 hate crimes with a sexual orientation aggravation. This represents an increase of 24% in the number of charges reported. With the exception of 2014-15, there have been year on year increases in charges reported since the legislation introducing this aggravation came into force in 2010. There were 41 charges reported in 2019-20 with an aggravation of transgender identity, compared to 40 in 2018-19.

Transgender identity is generally understood as an umbrella term and that generally is understood as including non-binary people. Such people may be the victims of hate crime along with trans men and trans women.

The UK Government's survey of LGBT people also provides information on the experiences of non-binary people of “incidents” like violence and harassment.

Under section 25(1) of FOISA (information otherwise accessible), as this information is in the public domain, we are not required to provide it.

You may also wish to be aware that provisions in the draft Hate Crime and Public Order (Scotland) Bill ensure that characteristics currently protected within the hate crime legislative framework continue to be protected to the same extent with updated language that reflects changes over time in wider society. The Bill’s definition of transgender identity also includes non-binary people as they are currently protected by the existing definition’s use of ‘any other gender identity that is not standard male or female gender identity’.

This helps ensure that the language used in the Bill reflects changes over time in wider society and that the individuals who are afforded protection by the law recognise themselves in the terminology used.

 

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The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.