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On 1st April 2024, new hate crime laws came into effect in Scotland. This article outlines what this means for LGBTI+ people.
The new legislation is called the Hate Crime and Public Order (Scotland) Act 2021. It was passed by the Scottish Parliament in 2021, but has only now come into effect.
Hate crimes are crimes that are motivated by prejudice against someone, or against a group of people, based on age, disability, race, religion, sexual orientation, transgender identity, or variations in sex characteristics (intersex status).
It is important though to know that many forms of prejudiced or offensive behaviour are NOT hate crimes. It is not a crime to be prejudiced, and the right to freedom of expression means that people may express their prejudice in offensive, shocking or disturbing ways, without crossing the line into criminal behaviour.
To be a hate crime, the behaviour must be serious enough to make it a crime. The majority of hate crimes in Scotland are prosecuted as the crime of threatening or abusive behaviour. This is where someone behaves in a threatening or abusive manner, and it is serious enough that it would be likely to cause a reasonable person to suffer fear or alarm, and the perpetrator intended to cause fear or alarm (or was reckless about causing fear or alarm).
For example, if someone shouts threats at you in the street, using transphobic language, and putting you in a state of fear or alarm, that is likely to be a transphobic hate crime. To take another example, if someone misgenders you on social media, that would not of itself be a crime. That’s because misgendering someone remotely would not of itself be provably both likely to, and intended to, put a reasonable person in a state of fear or alarm.
The new offence of “stirring up hatred” against LGBTI people is similar. It only applies where a reasonable person would consider behaviour to be threatening or abusive, and it can be proven that the perpetrator intended their behaviour to stir up hatred (and the behaviour was not otherwise reasonable). This means that the perpetrator deliberately seeks to cause others to feel hatred towards the targeted group. To use the same example, misgendering someone on social media would not of itself reach that threshold. The stirring up hatred law also specifically states that people have a right to express ideas that offend, shock or disturb.
There are more details of what hate crime is, in the sections below.
Anyone who witnesses a crime can report it to the police (more details in the next section). The police can investigate, and if there is enough evidence that a crime has been committed, they will report it to the procurator fiscal (PF). PFs are responsible for prosecuting crimes in Scotland.
The PF will decide whether there should be a prosecution (based on factors such as the quality of the evidence, and the public interest), and if so, what the charge (also called complaint or indictment) will be, and which court the case will be prosecuted in. Eventually the case will then come to court.
If you’re not sure whether what you experienced is a hate crime or not, there are some more details below.
You can get confidential support from the LGBT Helpline here.
The helpline will not pressure you to report the crime to the police – that is your decision.
You can report a hate crime either as the victim or as a witness, in a number of different ways:
A lot of the new Hate Crime and Public Order (Scotland) Act simply restates hate crime laws that have already been in place for well over a decade. But it also contains some new laws.
The parts of the Act that directly apply to hate crime targeting LGBTI+ people are:
The statutory aggravation is not new for LGBTI+ people – it has been in place since 2010. The statutory aggravation law says that when any criminal offence is committed, if part of the motive for the offence was prejudice on certain grounds, then the offence is treated as “aggravated” by that prejudice. That means that it is potentially treated more seriously.
This law covers prejudice on certain listed grounds, namely age, disability, race, religion, sexual orientation, transgender identity, and variations in sex characteristics (intersex status). Sexual orientation is defined in a way that does not include ace/asexuality.
This law applies to all criminal offences, so that any offence (for example, threatening or abusive behaviour, assault, sexual assault, vandalism, etc etc) can count as being aggravated in this way. But the aggravation can only be applied where some other criminal offence has been committed. The statutory aggravation law does not create any new or additional offence.
For example, if someone is threatened in the street, causing fear or alarm, that can be the offence of threatening or abusive behaviour. If the threats used transphobic language, that is evidence of an aggravation of transgender identity prejudice.
If homophobic graffiti is painted on someone’s house, that is the offence of vandalism, and the homophobic nature of the graffiti is evidence of aggravation by sexual orientation prejudice.
If there is evidence that an offence was aggravated by a prejudice motive on one of the listed grounds, that will be recorded by the police. It will be taken into account by the procurator fiscal (prosecutor) in decisions on whether and how to prosecute. Then, if the motive of prejudice is proven in court, it must be taken into account in sentencing. That could mean a heavier or more appropriate sentence.
And the prejudice motive will be recorded at all stages, so that statistics can be collected on hate crimes.
This statutory aggravation law is not new – for LGBTI+ people it has been in place since 2010. However, from 1st April 2024, for the first time, a prejudice motive against intersex people (people with variations in sex characteristics) will be recorded properly as such. Previously, these were recorded as a form of transgender identity prejudice, which is not correct.
The other change that the new Act makes to the statutory aggravation is to add prejudice on grounds of age, which was previously not included.
Most hate crimes in Scotland are dealt with using a statutory aggravation. Remember that the aggravation can only be used when another criminal offence has been committed (threatening or abusive behaviour, assault, sexual assault, vandalism, etc etc). The aggravation is about recording and taking into account the prejudice motive for that offence.
It is important to note that it makes no difference what the actual sexual orientation, or trans status, or intersex status, of the victim of the offence is. What matters is the motive – why the perpetrator did the offence. For example, if a cisgender person is attacked because the attacker thinks they are trans, or because they associate with trans people, that is a transgender identity prejudice hate crime, and the statutory aggravation will apply.
In the year to March 2023, there were 1884 offences reported by police to procurators fiscal which had an aggravation of sexual orientation prejudice. For the large majority of those (86%), the offence reported was threatening or abusive behaviour.
In the same year, 55 offences were reported by police with an aggravation of transgender identity prejudice. 84% of those offences were threatening or abusive behaviour.
Since 1986, there has been an offence of stirring up racial hatred. From 1st April 2024, a similar offence is being introduced to cover stirring up hatred on grounds of age, disability, religion, sexual orientation, transgender identity, or variations in sex characteristics (intersex).
The offence of stirring up hatred on one of those grounds applies where someone behaves in a way that a reasonable person would consider to be threatening or abusive, and they deliberately intend their behaviour to stir up hatred.
The law says it is not an offence if the behaviour was, in the particular circumstances of the case, reasonable. It also says that, when deciding whether the behaviour was reasonable, a court must bear in mind the right to freedom of expression, including that the right applies to expressions that offend, shock or disturb.
The law also says that behaviour does not count as threatening or abusive solely because it involves discussion or criticism of matters relating to age, disability, sexual orientation, transgender identity or variations in sex characteristics. To be this offence, the behaviour must be specifically threatening or abusive (not just critical), and it must be done with the intention of stirring up hatred, and not be otherwise reasonable.
To give an idea of what kinds of behaviour this might cover, in England there has been a similar offence covering sexual orientation for more than 10 years. A group of people were successfully prosecuted for that offence after they put leaflets through people’s front doors in an English city, calling for the death penalty for LGB people (and including a cartoon of a person being hanged).
Unlike the Equality Act (see below), the hate crime legislation does not include sex as a protected characteristic. The original proposals for the legislation did envisage including sex. But the main women’s organisations in Scotland believed that that might do more harm than good. Misogyny and sexism are pervasive through society. The main women’s organisations believe that specific legislation is needed to address this, and that, for a number of reasons, hate crime legislation is not suitable.
You can read the briefing that Engender sent to the Scottish Parliament outlining their opposition to including sex in the hate crime legislation here.
The Scottish Government set up a study, chaired by Helena Kennedy KC, to look into this, which recommended legislation to address misogyny. The Scottish Government then consulted on the proposals. The Equality Network calls on the Scottish Government to urgently introduce a bill to tackle misogyny.
Domestic abuse is also a criminal offence. It is defined in law as abuse by a partner or ex-partner. This abuse might include for example violence, threats, intimidation, controlling behaviour, restriction of freedom, humiliation, degradation or punishment. If you have experienced domestic abuse, you can get confidential support from the LGBT Helpline here.
There is more information on available domestic abuse support services on this page.
If you experience discrimination or harassment, because of your sexual orientation or trans status, at your work, or while using commercial, public or voluntary services, then that may be a breach of the Equality Act 2010. This is an unlawful “civil wrong”. You can ask that it be stopped, and you can go to a civil court to claim compensation for the harm done to you.
Such discrimination or harassment is not in itself a hate crime (so the police will not help with it). However, if it reaches the criminal threshold, for example if it includes threatening or abusive behaviour that would cause a reasonable person fear or alarm, it can be a crime as well as a civil wrong.
The definition of unlawful discrimination or harassment in the Equality Act, for the purpose of this civil wrong, is much wider than in hate crime law. Discrimination in the Equality Act simply means being treated less favourably than other people are treated, because of sexual orientation or trans status (called in the Equality Act “gender reassignment”).
Harassment in the Equality Act means unwanted behaviour that violates your dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment for you, related to sexual orientation or gender reassignment.
It doesn’t matter what your actual sexual orientation or trans status are. For example, it is unlawful under the Equality Act to treat someone less well at work because they are presumed to be a lesbian, or because they associate with lesbians, even if they are not actually a lesbian.
The Equality Act does not explicitly cover prejudice on grounds of intersex status / variations of sex characteristics, although it may be possible to take court action against such prejudice as a kind of sex discrimination, which the Equality Act does cover.
Remember that the Equality Act only covers discrimination or harassment that happens at your work, or when you are accessing commercial, public or voluntary services. If you think you have experienced discrimination or harassment contrary to the Equality Act, you can get advice from the Equality Advisory and Support Service.
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Equality Network is a national lesbian, gay, bisexual, transgender and intersex (LGBTI) equality and human rights charity.
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