The worst discrimination on grounds of sexual orientation has now been removed from sexual offences law in Scotland. Our information page on the law around sex gives an outline of the current law. However, the law continues to discriminate on grounds of sexual orientation and gender identity, in the crimes that can be charged, in the penalties available, and in the outdated and offensive language used. What follows is a summary of some of the problems with the law as it stands in Scotland.

Crimes that can be charged

If a transsexual woman is raped, or if a transsexual man perpetrates a rape, it is unclear whether a charge of rape can be brought in Scotland, whether or not the transsexual person has been granted gender recognition. Instead the rape might have to be charged as an indecent assault, which is widely seen as a less serious charge than rape.

If a man is raped by another man, that cannot be charged as rape in Scotland, but would instead be charged as 'sodomy'. Sodomy is a highly unsatisfactory charge, because it covers both rape, and fully consensual sex between adult men that is only illegal because it happened in a place where someone might see it. For that reason sodomy is not included in statistics on sexual assault.

In England and Wales, all these rapes can be charged as what they are, as rape.

Penalty inconsistencies

There are different maximum penalties in the legislation if a man has sex with a 14 or 15 year old child, depending on whether the child was a girl (ten years in prison) or a boy (two years). There is no justification for this difference.

Offensive language

The law still uses language from the 19th century or earlier, dating from times when all sexual activity between men was a crime. Legislation dealing with sex between male persons is separated out under the heading "homosexual offences". But what makes these things crimes nowdays is not that they are "homosexual" acts, but that they are indecent assaults, abuse of a child under 16, or public indecency. The legislation also still describes all sexual activity between men with the offensive term "gross indecency".

Changing the law

Until the passing of the Sexual Offences Act 2003, the law in England and Wales had similar inconsistencies and problems - these have been eliminated by that Act, one of the purposes of which was to remove remaining discrimination on grounds of sexual orientation from the law. Scotland has fallen behind.

In 2004, the Scottish Executive asked the Scottish Law Commission (SLC) to review the law on sexual offences in Scotland, with particular regard to equality issues. The SLC set up an advisory group for the review, which the Equality Network was a member of, and which met during 2005. In January 2006, the SLC published proposals for consultation. The proposals recommended removing sexual orientation and transgender identity discrimination from sexual offences law. In December 2007 the SLC published their final report, including a draft Sexual Offences (Scotland) Bill.

Early in 2008, the Scottish Government consulted on the SLC report. The Equality Network prepared a briefing on the consultation, and submitted a consultation response.

In June 2008, the Scottish Government introduced the Sexual Offences (Scotland) Bill into the Scottish Parliament, to implement the SLC's proposals. The bill is being considered by the Justice Committee. In our view the bill is very good, removing almost all sexual orientation and gender identity discrimination from sexual offences law. But we think the bill could be improved further, as explained in the written evidence we submitted to the Justice Committee.

The bill could pass by spring 2009 and come into effect later that year.