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As set out in the answer to question S5W-29139 on 4 June 2020, a definition of ‘variations in sex characteristics’ is provided, for the purposes of the Bill, as being a reference to a person being born with physical and biological sex characteristics which, taken as a whole, are neither those typically associated with males nor those typically associated with females. Any type of variation, to any degree, which is within this definition is potentially within the scope of the Bill.

For an offence to be aggravated, the course of conduct or action of the offender must evince malice and ill-will towards the person affected based on that person's membership, presumed membership or association with a particular group; or be motivated by malice and ill-will towards members of a group based on their membership of that group.

All answers to written Parliamentary Questions are available on the Parliament's website, the search facility for which can be found at http://www.parliament.scot/parliamentarybusiness/28877.aspx

The Management of Offenders (Scotland) Act 2019 received Royal Assent on 30 July 2019. The Act provides a legislative basis for enhanced electronic monitoring capabilities. A new electronic monitoring contract started on 1 April 2020 and that now provides a contractual framework for the new technological capabilities, including remote substance monitoring, once the relevant sections of the Act are commenced.

However, those sections of the Act will only be commenced once there has been discussion and agreement with stakeholders as to how the service can be developed. The necessary discussions with stakeholders that are needed prior to developing a service with those capabilities have had to be limited over recent weeks as all parties focus on managing the impact of Covid-19 across justice services, but the intention is they will resume as soon as practically possible.

Following recommendations made by Lord Bracadale’s Independent Review of Hate Crime Legislation in Scotland, the Scottish Government engaged extensively with stakeholders and the wider public.

On 14 November 2018 the Scottish Government launched the ‘One Scotland: hate has no home here’ consultation and ran 11 public awareness events throughout Scotland. A series of stakeholder engagement events and bilateral meetings were also undertaken.

The ‘One Scotland: hate has no home here’ consultation asked respondents if they agreed with Lord Bracadale’s recommendation that there should be a protection of freedom of expression provision for offences concerning the stirring up of hatred.

Altogether, there were 108 organisational responses to the consultation. This included responses from: Amnesty International UK; Humanist Society Scotland; Equality and Human Rights Commission; and many more third sector, faith, and public sector organisations.

Subsequently the Scottish Government contracted independent external analysts who undertook the analysis of the consultation responses and produced a report, published by the Scottish Government in June 2019. You can view the report – which includes a list of organisational respondents – here: https://www.gov.scot/publications/consultation-amending-scottish-hate-crime-legislation-analysis-responses/.

The responses to the consultation and public awareness events have yielded valuable information both from individual and organisational perspectives; helping to inform the development of the Bill.

I refer the member to the answer to question S5W-29138 on 4 June 2020. All answers to written parliamentary questions are available on the Parliament’s website, the search facility for which can be found at https://www.parliament.scot/parliamentarybusiness/28877.aspx .

The Scottish Government is aware that other terms are also in use, such as ‘intersex’ or ‘difference in sex development’. People with a variation will also have their own preferred language and might refer to their specific variation or diagnosis. The Hate Crime and Public Order (Scotland) Bill does not seek to impose the language of ‘variations in sex characteristics’ on individuals or organisations. The term ‘variations in sex characteristics’, as opposed to ‘intersex’, is used as this is an inclusive term, increasingly being adopted by stakeholders.

In his review, Lord Bracadale recommended that ‘intersex’ should be included as a separate category within hate crime legislation rather than a sub-category of transgender identity.

On 14 November 2018 the Scottish Government’s ‘One Scotland: hate has no home here’ consultation sought views on whether ‘variations in sex characteristics (intersex) should be a separate category from transgender identity in Scottish hate crime legislation’, in line with Lord Bracadale’s recommendation.

The majority of organisations who responded agreed with Lord Bracadale’s recommendation to include ‘intersex’ as a separate category from transgender identity within hate crime legislation.

Since the enactment of the Offences (Aggravation by Prejudice) (Scotland) Act 2009, it has become clear that there are concerns with listing ‘intersexuality’ as an aspect of transgender identity. ‘Intersex’ and transgender identity are now widely understood to be two separate and distinct characteristics (‘intersex’ relating to physical sex development that is different to what is generally expected of males and females, and transgender identity relating to a person’s gender identity).

Whilst the wording of the 2009 Act reflected understanding of the position at the time of enactment, this is no longer the case. Therefore the Hate Crime and Public Order (Scotland) Bill removes ‘intersexuality’ from the definition of transgender identity given the clear differences between ‘intersex’ and transgender identities. However, so as not to lessen protection already well established in legislation, the Bill includes ‘variations in sex characteristics’ as a separate characteristic within hate crime law.

The Hate Crime and Public Order (Scotland) Bill does not seek to impose the language of ‘variations in sex characteristics’ on individuals or organisations. The term ‘variations in sex characteristics’, as opposed to ‘intersex’, is used as this is an inclusive term, increasingly being adopted by stakeholders.

The Hate Crime and Public Order (Scotland) Bill sets out ‘variations in sex characteristics’ as a reference to a person being born with physical and biological sex characteristics which, taken as a whole, are neither those typically associated with males nor those typically associated with females.

The definition of ‘variations in sex characteristics’ includes people whose physical sex development is different from what is generally expected for males and females.

The phrase ‘physical and biological sex characteristics’ is not specifically defined in the Bill, meaning that the phrase takes its ordinary meaning in the context and would include genetic, chromosomal, gonadal, anatomical and hormonal characteristics.

Although ‘variations in sex characteristics’ is used in the Bill, the Scottish Government is aware that other terms are also in use, such as ‘intersex’ or ‘differences of sex development’. People with a variation will also have their own preferred language and might refer to their specific variation or diagnosis.

This question relates to operational matters that are the responsibility of the Scottish Court and Tribunals Service (SCTS) corporate body. The question has been passed to the Chief Executive of the SCTS who will reply in writing within 20 days

Prisoners are not routinely tested for COVID-19 prior to liberation.

In line with existing guidance, prison healthcare staff should inform their local health protection team if they suspect that they have cases of COVID-19 in the prison and health protection teams can arrange testing if required.