Sexuality
1. Overview
This chapter covers sexuality.
The 2022 census asked a voluntary question on sexuality. From those who answered, 87.8% identified as straight or heterosexual. Another 4 % identified as gay or lesbian, bisexual or having another sexual orientation (with the remaining participants not answering the question). Of note, from the 4% those identifying as gay/lesbian and bisexual were roughly equal (80,100 as gay/lesbian and 80,260 as bisexual).
A variety of terms are used in the chapter, such as ‘LGB’, ‘LGBT’, ‘LGBTI’, and ‘LGBT+’.[1] This is sometimes because, when referring to research, it is based on the way that participants in that research have been grouped, but also because different campaign groups and charities used terms slightly differently.
The chapter is split into the following headings:
2. Introduction
Sexuality is defined as someone’s sexual orientation that is to whom they are attracted.[2] It is separate from gender identity. It can be fluid, changing during a person’s lifetime. It can develop over time, sometimes depending on someone’s upbringing and background. Sexuality does not determine personality or character; just as there is no ’average’ person, it is unhelpful to think of a ‘typical’ or ‘normal; sexual orientation. As ever in society, assumptions should not be made about a person based on their sexual orientation or behaviour.
Many people, particularly those who are younger, resist attempts to ‘label’ or name their sexual orientation. For others it is an important part of life to have an identifiable community to associate with, or to openly identify as having a particular sexual orientation.
For some, sexuality is a more nuanced concept than heterosexuality or homosexuality. What is important is an attraction to a person because of who that person is, rather than because that person is of a particular gender or biological sex. In a YouGov survey 63% of adults considered sexuality to be a sliding scale. This rose to 71% of 18-24 year olds, but dropped to 50% of over 65s.[3] Whilst definitions of sexuality might mean slightly different things to different respondents, the numbers of persons identifying as bisexual may be not too dissimilar to those identifying as gay/lesbian.[4]
A trawl through popular media reveals that many younger people resist labelling themselves. They will sometimes refer to themselves as ‘queer’[5] or ‘fluid’, explaining they feel attraction to different genders and it is the person, not the gender or biological sex that is important. As some have explained “you like who you like”. Accordingly a younger generation may think differently around attraction than what has been traditionally understood.
This fluidity around identification may mean that some will not want to give themselves, or be given, a label of their sexuality. Rather, for some, the focus is on what the relationship is rather than a definition.
For judges, the starting point is that often that a person’s sexuality does not need to be discussed and is generally not relevant. If it is truly relevant, the best approach is to take care to understand the issue, and how a person would wish their sexuality to be referred to. If the issue is relevant, judges should be careful to ensure that matters do not stray beyond what is necessary to determine the issue or issues in the case. Judges should be alert to any attempts to ‘out’ someone. In the limited number of cases where sexuality is relevant, be alert to any questions that might be demeaning or insulting or interpreted as such. If the question is truly germane to the resolution of the case before you but could be interpreted in an insulting or demeaning way, judges should intervene to require the question to be rephrased.
3. Legal framework and history around sexual identity
In comparison to England & Wales, Scotland was much later in repealing the law criminalising relationships between two same sex adults, perhaps because of greater intolerance in Scotland to gay relationships.[6] Given the prohibition on male adults consenting to same-sex relationships was only changed in 1980 (and even then, by a backbench amendment to a piece of otherwise unrelated criminal legislation) there has been a historic legacy of prejudice around homosexuality.[7] As such, particularly amongst older members of society, being gay or lesbian may still be associated with notions of embarrassment, shame, or disapproval.
Civil partnership between two persons of the same gender has been available in Scotland since 2005[8] but marriage between two persons of the same gender was only introduced in 2014.[9]
Sexual orientation is a protected characteristic under the Equality Act 2010. That protection exists not just if someone identifies as heterosexual, gay, lesbian, or bisexual, but also over discrimination by perception (that is someone else thinks you have a particular sexual orientation, whether or not they are correct) and discrimination by association (a connection to someone with a particular sexual orientation). Please see chapter on the Legal Context for a further discussion.
4. Young people
It is thought that young people tell others about their sexual orientation at a far younger age than previous generations.[10] The 2022 census in Scotland included 22,780 young people aged 16-19 who identified as gay or lesbian, bisexual or other sexual orientation.[11] It appears school can be a particularly difficult place for young people to be open about their sexuality.[12] Research from England suggests that young people felt that openness by pupils and staff was the single most important factor in a positive school experience, followed by a robust culture around bullying.[13] Young people in rural areas[14] are likely to face additional challenges.[15] Research suggests that those in rural areas are more likely to have a negative experience of being lesbian, gay or bisexual due to greater visibility, perceived homophobia, and religious influences.[16]
5. Discrimination
A study in 2016 suggests that lesbian, gay, bisexual and trans persons face discrimination across a number of areas of life, often arising from heterosexism and heteronormativity (that is where services or provision assumes it will be used by a heterosexual person).[17] It also suggests that fears around discrimination leads to a reluctance to engage in public life, and/or use public services.[18]
6. Prejudice around HIV
No assumptions should be made about someone’s sexuality simply because the person is HIV positive. Worldwide it is now thought that many HIV infections are spread via heterosexual sex. HIV can also be passed from mother to baby, by contaminated needles (such as in drug use), by receiving infected blood or by healthcare workers suffering accidental needlestick injuries.
7. Hate crime
Abuse directed towards or motivated by someone’s sexuality may be underreported.[19] A survey carried out in 2021 showed those identifying as part of the LBGT+ community as experiencing high levels of abuse with 64% of respondents reporting violence or abuse relating to their identity.[20] A study in 2017 in Scotland reported that 65% of lesbian respondents, 66% of gay male respondents and 53% of bisexual respondents had been a target of a hate crime at some point in their lives.[21] It appears unlikely that people suffer a one-off incident; 90% of respondents said they had been a target of hate crime two or more times, and nearly a third (30%) reported more than ten times. Only 37% of respondents thought the introduction of the aggravation had helped them feel safer.[22] A review of existing evidence concluded that “[t]he fear of hate crime was recognised to create considerable anxiety and worry, which can result in poor mental health, additional stress, hyper-vigilance, self-harm and suicide. LGB[23] people were identified to worry more about hate crime than any other minority groups.”[24]
“Sexual orientation”[25] is a protected characteristic in terms of the Hate Crime and Public Order (Scotland) Act 2021. Broadly speaking the Act creates aggravations by prejudice to offences and stirring up hatred offences, as well as a requirement for the police to record and report on non-crime “hate incidents”.
In 2021/22, 1781 hate crimes around sexual orientation were reported to the Crown Office, with the number of cases increasing year-on-year.[26] It is likely that these numbers do not reflect the true picture and there is a high level of underreporting.[27]
Those living in rural areas may experience particular difficulties. In a survey, 62% believe that LGBT people outside of Scotland’s big cities face more inequality.[28] 43% of the participants said they would not feel comfortable holding hands with their partner in public. As some rural communities may be more socially conservative (or perceived to be so) there may be social isolation and a lack of spaces where people can openly express their sexual identity. It can be more difficult to be anonymous in a rural area. There can be a lack of a supportive network in smaller communities.
Whilst many assume that younger persons are more open and tolerant of the range of sexualities that exist in society, surveys show that young gay people, and staff, still experience both discrimination and hate crimes in schools. Young people complain about the lack of support from schools, an absence of sexual education to cover LGB issues and a lack of action in school to tackle prejudiced behaviour.[29]
8. Assumptions made around sexual orientation
Judges should be careful not to make assumptions on how someone should appear or act, connected to their sexuality. Some common (and wrong) assumptions are:
In gay men, a perceived feminine or ‘flamboyant’ appearance or outlook. Whilst some gay men may choose to dress or act this way at times, it does not necessarily mean that they will always do so, and it is not ‘representative’ of anything. It is not an indicator of sexuality, particularly given the more fluid view that some now have of both sexuality and gender identity;
In gay woman, a ‘butch’ or a perceived less feminine appearance equates with a certain sexuality. Again, appearance is not linked to sexuality and no assumptions should be made;
Assumptions and perceptions about a promiscuous lifestyle and sexuality. Such assumptions are likely to be offensive, given that such matters are individual;
Assumptions about family life. There is no evidence that being raised in a gay or lesbian relationship or by a gay or lesbian single parent has any different outcomes for children, and gay or lesbian parents can do equally well in providing a loving stable home for children.[30] It is also insulting to make assumptions around the stability of a relationship based on sexuality.
Similarly, there are many misassumptions around breakdown of same-sex relationships. The reality is that same-sex relationships end for the same varied and myriads of reasons as any relationship.
9. Family law and sexual orientation
Family law has evolved to a perceived standard family unit, assuming a heterosexual relationship at its heart. As society has changed, so too has the diversity of families and family life. There are still areas of law that may be seen as not yet reflective of the modern reality of families, such as surrogacy.[31] Judges dealing with such cases should take a sensitive approach.[32]
10. Conversion therapy
There may be legislation around the issue of conversion therapy[33] introduced in Scotland in the coming years.[34]
11. Domestic abuse
Care should be taken to treat all relationships equally, no matter what the gender and sexual orientation of the individuals involved. Judges should consider the case, including the imposition of a non-harassment order, without preconceptions.[35]
When sentencing any offence with a prejudice aggravation, as a matter of law the court should make clear the way that the aggravation has been considered. In doing so, it may assist the complainer in understanding the basis and reasons for the sentence.[36]
12. Definitions and unacceptable language
For many, the following definitions may be controversial, disputed or mean slightly different things to different people. Accordingly, the list is provided not a matter of legal definitions, but rather so that judges have a reference point, should such terms be used in proceedings before them.
This list is not comprehensive. If a term is used that judges are not familiar with, the best approach is to politely ask what the witness/party means by that term.
Asexual | This is a term many use to refer to someone who does not have sexual attraction or little sexual attraction towards either gender, but may include those with limited romantic attractions. Someone who is asexual can still identify as gay, lesbian, bisexual, or straight. It is different from celibacy – someone who is celibate deliberately decides not to engage in sexual behaviours or attractions. |
Allosexual | The opposite of asexual. |
Bisexual | Where an individual is attracted to members of both sexes. |
Butch | Whilst some in the lesbian, gay and bisexual community still use this term to describe someone whose appearance and who dresses in a particularly masculine way, it has historically been an offensive term and should not be used. |
Biphobic | A term used by some people to express prejudice or discrimination again bisexual people. |
Femme | A term used by some in the lesbian, gay and bisexual community refer to denoting someone whose appearance and who dresses in a feminine way. But, again, it may be interpreted as offensive and should not be used. |
Gay | Historically referred to a male in a sexual relationship with another male, but equally can refer to a female attracted to other females (although some females prefer to use the term lesbian to describe themselves). Generally now used instead of homosexual. |
Homophobic | Prejudice or discrimination again lesbian and/or gay persons but can also be used to include prejudice against someone who identifies as bisexual. |
Heterosexual/straight | Refers to where a woman’s romantic or physical attraction is to a man and vice versa. |
Lesbian | Refers to a woman having a romantic or physical attraction to another woman; some women prefer the term gay. |
Pansexual | Refers to someone whose sexuality and sexual attractions are neither defined nor limited by gender and sexual orientation. |
Queer | Whilst some of the variations of the LGBT acronym refer to “queer”, this was historically an offensive term and should not be used. Recently it has been used in the context of being “reclaimed” as a positive term in the gay/lesbian community and might be used in that sense. |