The Hate Crime Act and Strategy in Scotland

A hate crime is defined as any crime that is proven to have been motivated (wholly or partly) by malice or ill will towards a group covered by the legislation. Current legislation covers groups identified by race, religion, disability, sexual orientation, and transgender identity (including Intersex / variations of sex characteristics.) The law works by adding a “statutory aggravation” to any crime. If the crime is proven to have been motivated by prejudice to one of the protected groups, this aggravation is taken into account in sentencing. Any crime can be aggravated in this way – for example, abusive and threatening behaviour, assault, and vandalism.

In 2021, the Scottish Parliament passed the Hate Crime and Public Order (Scotland) Act 2021. This Act is not yet in effect, but when it comes into effect it will update hate crime law in two main ways:

• The statutory aggravation will be extended to include age as a protected characteristic, and variations in sex characteristics will be separated out from transgender identity, recognising that the two are different protected characteristics
• The existing offence of “stirring up racial hatred” will be extended to cover stirring up of hatred against groups defined by the other protected characteristics: age, disability, religion, sexual orientation, transgender identity, and variations in sex characteristics. This offence applies where someone does something that is threatening or abusive, with the intention of stirring up hatred against one of these groups.

The Scottish Government are currently developing a new Hate Crime Strategy for when the new Act comes into effect.

We have been working with the Scottish Government, and with advocates for all protected characteristic groups, to shape the new Hate Crime Strategy. This has included conducting focus groups with LGBTI+ people who have experienced hate crimes, and research exploring the prevalence of hate crimes, the effects of experiencing these, where hate crimes occur and to whom.

Data from the Crown Office and Procurator Fiscal Service shows that, in Scotland, hate crimes based on sexual orientation and transgender identity are increasing. Some groups within the LGBTI+ community are more at risk of experiencing hate crimes, particularly trans and non-binary people, and LGBTI+ disabled people. This is amid what is referred to as a ‘culture war’ in which trans people have suffered undue scrutiny and demonisation. We are seeing a rise in anti-trans and anti-LGBT sentiment in print and television media, online, via social media and from some celebrities and politicians. This is translating into real world impact and a fear of engaging in public life within the LGBTI+ community in Scotland. There is also a noticeable lack of empirical data or large-scale studies on intersectionally marginalised LGBTI+ people and their experiences of hate crime or the prevalence of this.

Despite hate crimes increasing, one of the major problems continues to be under-reporting of hate crimes to the police, with Galop’s 2021 study estimating that only 13% of LGBTI+ hate crimes go reported. One of the most common reasons for not reporting a hate crime was some combination of feeling that nothing would come of doing this, a fear of wasting police time and resources, and of the incident not being ‘serious’ enough to cross the threshold into criminality. Another common barrier to reporting for LGBTI+ people was the normalisation of hatred and abuse towards them. Several studies highlighted that, for many LGBTI+ people, discrimination and prejudice occurred regularly.

Further to this, systemic issues between police and marginalised communities continue to be widespread, and there is still considerable work to do in changing this and in building trust with marginalised communities. This is particularly true for people experiencing intersectional marginalisation. While positive interactions with police do happen, it has been found that for LGBTI+ people experiencing hate crimes and reporting these, satisfaction with police interactions are much lower than for crimes reported generally. Research identified continuing issues of instances where police officers showed a lack of understanding around LGBTI+ issues, or even where LGBTI+ people experienced homophobia, transphobia or biphobia when reporting a hate crime.

It is clear from this research that there is still a long way to go in tackling LGBTI+ hate crimes adequately. The new Hate Crime Strategy, launched in March 2023, has been developed collaboratively with marginalised communities and LGBTI+ groups, and it is hoped that this will continue to make improvements in the ways in which hate crimes are understood, the reporting processes, and considering those affected at its core.