The Act The characteristics Section 11 – Meaning of the characteristics
67.Section 11 sets out further provision which is relevant to the interpretation of the characteristics listed in sections 1(2), 4(3) and 9.
68.Section 11(2) provides that a reference to “age” includes a reference to an age range. This means that, for example, an offence might be aggravated by prejudice under section 1 based on malice and ill-will towards “older people” or “adolescents” rather than the victim’s specific age.
69.Section 11(3) and (4) provides that “disability” means a physical or mental impairment of any kind, and includes a medical condition which has, has had, or may have a substantial or long-term effect, or is of a progressive nature.
70.Section 11(5) defines what is meant by a “group defined by reference to religion”. The meaning is the same as the definition of “religious group” in section 74 of the Criminal Justice (Scotland) Act 2003, which is repealed as a consequence of this legislation (see section 18 and paragraph 4 of schedule 2).
71.Section 11(6) provides that a reference to sexual orientation is a reference to sexual orientation towards persons of the same sex, persons of a different sex or both persons of the same sex and persons of a different sex.
72.Section 11(7) defines what is meant by “transgender identity”. This definition does not only include people with a Gender Recognition Certificate or who have undergone, are undergoing, (or propose to undergo) medical or surgical interventions, but includes people whose gender identities are different from their sex at birth. This includes those who identify as male, but were registered as female at birth, those who identify as female but were registered as male at birth, non-binary people and cross-dressing people.
73.Section 11(8) defines what is meant by “variations in sex characteristics”. The existing definition of “transgender identity” in section 2 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009 includes “intersexuality” (section 2 is repealed by section 18 and paragraph 5 of schedule 2). It is now recognised that intersexuality (or a person being born with physical or biological variations in sex characteristics) is separate to a person’s transgender identity. The definition of “variations in sex characteristics” includes people that are born with characteristics not typically associated with males or females. There is a variety of terminology used with reference to variations of sex characteristics and intersex status. For example, some people prefer to use the term “differences in sex development” and some prefer to simply describe their specific variation.