During the Stage 1 oral evidence sessions on the Hate Crime and Public Order (Scotland) Bill, the definition of ‘transgender identity’ was discussed. This briefing traces how ‘cross-dressers’ came to be included within the definition of transgender identity in the current Bill.
The analysis shows that the Scottish Government’s sole justification for including ‘cross-dressers’ in the Bill is because ‘transvestism’ was included in the definition of transgender identity in the 2009 Act. However as far as we have been able to establish, at no stage in the parliamentary process – from the point that the Bill was introduced to the date it received Royal Assent – did MSPs discuss the inclusion of transvestism in the definition of transgender identity that features in the 2009 Act. Our analysis also shows that the Scottish Government has refused to define who the protection for cross-dressers in the current Bill is intended for. Nor can it provide any evidence to justify its inclusion under hate crime law.
As was pointed out during the Stage 1 oral evidence sessions, it is very hard to understand why a sartorial choice made by a small sub-set of men – some of whom are likely to be motivated by a recognised sexual disorder – should be afforded specific protection under hate crime law, over and above other sartorial choices.
The inclusion of cross-dressers within the current Bill also brings into even sharper relief the exclusion of sex as a protected characteristic, first rejected for coverage in 2009 and now, over a decade later, put off still further to a working group to consider. If the Scottish Parliament continues to see crimes motivated by hatred against men dressing as women as more serious than hatred against women, it will send a particularly stark message to women and girls in Scotland about political priorities.
Unless an MSP brings forward an amendment at Stage 2 or 3 of the Bill, it seems likely that this protection will be cemented in law under Hate Crime and Public Order Bill.