Homophobia and Human Rights

 

Picture Credit: Scotsman / Edinburgh Evening News

 

In the summer of 2014, my partner and I, left our home of 7 years.

After a sustained period of homophobic vandalism and abuse, from local young people and other adults, we'd had enough. 

 

It is only now, having settled down into a new life, in a new home and and, in a new City, that I can write about the experience.  

At the time of the Glasgow 2014 Commonwealth Games, I received a disturbing call from my partner.  He explained that a group of young people were giving him homophobic abuse in the street.  Later that week, he rang me again, this time distressed because his parent's car had it's windscreen smashed in.

I returned home, having finished up my volunteer run at the Games, only to find more abuse laying in wait.  This time, our home had been targeted by a projectile of some sort.  It had impacted the front door and was loud enough to be heard in every room of the house.

I ran outside to find the group gathered in the street, acting as if nothing had happened.

I started filming, expecting trouble.  I was not wrong, and I was ever grateful for the invention of the camera phone.

"Oi, you. Why are you filming us!", 

"Are you some kinda peedo or something?"

Then, one of the youths, removed his trousers and, bore his backside to me.

"Do you wanna beast me?"

To be graphic about it, this lad was asking me, if I wanted to have sexual intercourse with him, notwithstanding that he was only around 12 or 13.

It was then that the "adults", and yes, it is a deliberate use of speech marks, joined in.

One shouted from across her balcony, that I'd been filming the kids to warn other parents.

Another adult emerged from the property across the street.  He had covered his face and head with a hood.  He began shouting;

"beast, beast, beast".  

Now, for the sake of brevity, I will not go into every detail.  Suffice to say, in the days and weeks that followed, we had to call the Police on 20 occasions.

Eventually, some of the youths succeeded in smashing our bedroom window.

My partner was trying to sleep.

Can you imagine how scarey it is to experience a window shatter above your head at night?

 

Police Assistance

The local police at Drylaw Police Station were extremely supportive.

Within a few days, they had identified most of the young people involved and they were charged.

The only difficulty here, was that because the young people were all under the age of 16, they were entitled to anonymity.

They could not be arrested, or locked up, or sent before a Sheriff (judge), remanded in custody or have any of the other protective measures taken against them.

They continued their pattern of abuse and they knew they could, and would, get away with it.

All the police could do would be round them up, disperse the group, return the children to their parents and charge them.  The criminal justice file would then be passed onto the Children's Hearings System (Juvenile Justice).

I kept asking everyone, how is this fair?

I kept receiving the response, it is not fair, but there is nothing else that we can do.

 

Local Authority Assistance

The City of Edinburgh Council, seemed ambivalent to our plight.

We had previously contacted the local community safety team, and not heard anything back.

Again, we tried in vain to obtain immediate redress.

Again, telephone calls, emails and police requests for assistance went unanswered.

At a later stage, I did have a sit down with two social workers who were in charge of the welfare of one of the boys involved.  This conversation was helpful as it them kick started other measures.

 

Civil Remedies

As a Solicitor, I was aware that we were entitled to a civil remedy.  This is basic and fundamental human right.

However, the lack of information from the criminal justice system and the local authority made it impossible to take any form of legal action.

We were not allowed to know the identities of the young people, of any witnesses, nor allowed to see any documents, such as witness statements.

I tried at least 4 times to go into Court with what we had, however the processes involved, together with the lack of assistance, thwarted every effort.

 

The Future

We've now moved on, and are looking to our future together.

We are considering adopting children and have just adopted a new rescue cat.

Our new home, is safe and secure.  Our neighbours are great.

I will not stop my campaigning on either equality and human rights issues either.  I know, from this personal experience, why it's so important to have someone around to both question and challenge.

I am spurred on and undeterred.   

Never let it be said that there is no nastiness left in the world, nor that there is no need for "all these human rights".

The law is there for a reason, I only wish our public authorities were better able to enforce it.   
   

The "rainbow paper" is bias and misleading

The Rainbow Paper by YES LGBTI Scotland

The Pro-independence group YES LGBTI issued a rainbow paper, which is a manifesto for Lesbian, gay, bisexual, transgender and intersex (LGBTI) equality in an Independent Scotland.  

The rainbow paper is supported by Partick Harvie MSP, a leading campaigner for LGBT equality and human rights.  

The manifesto heavily criticises the UK and Westminster approach to LGBTI Equality and Human Rights and claims that Equality will only be guaranteed through a written Scottish constitutional commitment to LGBT people.

The group also claims that Westminster is holding back and threatens to reverse hard won LGBT equality rights.  

The content of the paper can be read here, in its PDF form.http://www.yesscotland.net/sites/default/files/resources/documents/the_rainbow_paper.pdf 

Daniel Donaldson, an Edinburgh based Equalities Lawyer, responded to some of the claims made by the groupthis evening.  Daniel who also recently experienced horrific Hate Crime, where he was branded a "Peedo" and a "Beast" said:

“The ‘Rainbow Paper’ issued by YES Scotland is misleading people.

“It is important to show a balance here and to not mislead LGBTI people into thinking that the UK is all bad and that an Independent Scotland will be all good, when it comes to protecting and protecting LGBTI human rights.

“It is also disingenuous to say that Scotland has consistency been more progressive than Westminster in terms of LGBTI equality.

“One fatal flaw in the YES LGBTI argument is that YES Scotland want to abolish the UK Supreme Court. Why would anyone want to abolish a Court which has affirmed and defended LGBTI rights, first in terms of LGBTI asylum and refugee status, and then again in terms upholding the non-discrimination provisions of the Equality Act when faced with several challenges by powerful lobby groups.

“This position contrasts with Scotland, where the Scottish Government, under the SNP leadership, sought to water down and exclude Roman Catholic adoption agencies from Equality Law to allow them to discriminate against same-sex couples. Contrast this with that of the UK, which refused to amend the Sexual Orientation Regulations, despite Scottish Government pressure to do so.

“It is also important to remember, that a written constitution, which specifically mentions LGBTI people is no guarantee that LGBTI rights will be protected. The South African constitution mentioned LGBT people, but when it came to considering same-sex marriage, the Government only changed the law after a Court Challenge.

“Without the UK Supreme Court, which currently protects the rights of LGBTI people, across the UK as a whole, a written Scottish Constitution would be meaningless as the Scottish Courts have adopted a critical and highly conservative interpretation of human rights law. Indeed, there was at least one LGBT Asylum case heard in Scotland which failed.

“The UK, having a wide network of Embassies and Consulates across the World has heavily lobbied for LGBT equality. The UK has the standing in the World to take many of the non-LGBTI friendly countries to task over their human rights record, and this has to be acknowledged.

“There is always room for improvement in any constitutional set-up, where equality and human rights are concerned. However, to completely ignore the accomplishments the UK in this field, and to paint everything in such a negative light, it just plain wrong.

“LGBTI people expect more from both sides of the Scottish Independence debate and I would encourage the YES Scotland campaign not to mislead people and be more honest about the advances made in terms of LGBTI equality and human rights in scotland as part of the UK.”

Hate Crime Laws Are Not Working - An Open Letter

Stonewall Scotland's Poster Campaign

An Open Letter to;

Kenny MacAskill MSP, Scottish Justice Secretary,

Lord Advocate, Frank Mulholland QC,

The Chief Constable of Police Scotland, Stephen House,

The Equality and Human Rights Commission and 

The Scottish Human Rights Commission,

12 August 2014

Dear Sirs,

Ineffective Protections against Hate Crime

My Partner and I are on the receiving end of vicious Hate Crime, because of our sexual orientation. 

I had been lead to believe that the criminal justice system would protect both my Partner and myself from Hate Crime.  However, despite the grand standing that took place, heralding the introduction of Hate Crime legislation, by the Scottish Government, the Equality and Human Rights Commission and others, the law is a dud. 

The reasons for this; first, the perpetrators of the Hate Crime are all under the age of 16, and are classified as Children, and second, there is no effective monitoring of how the law protects victims of Hate Crime, allowing solutions to this problem to have been identified. 

I have been branded a “Peedo” and a “Beast” in front of my own home.  Our car windscreen has been smashed in.  Stones, bricks and other missiles have all been thrown at our home, our property is subject to regular trespass and Children will even come as far as the front door to bang and shout abuse.  What is more disturbing, is that the Children even solicited the support of wayward adults to assist in their campaign of terror, shouting “Best, Beast, Beast” at me and my home.

The Children concerned were charged and reported (through the Children’s hearing system).  I had hoped this would out an end to it.  However, because they are under 16, they were free to continue the abuse, and to encourage others to abuse us too.  They knew they would get away with it, which is why they continued, after being charged, reported and warned about their behavior. 

I have nothing but praise for my local Police Officers, who have been very supportive.  However, they find that their hands are tied.  The Police simply do not have sufficient resources locally to be effective, despite Hate Crime being classified as a national priority.  I also note, that the Crown Office does not review the effectiveness of the legislation, and the important legal protection that the law is meant to bring. 

Additionally, public policy considerations designed to promote the rights of the Child – even if the Children concerned are perpetrators of vicious abuse – trump those of the right of the victim to seek redress.  This is deeply disappointing, because as a result, my Partner and I are left without an effective remedy and, are left to suffer further torment.

Notwithstanding our legal entitlement to protection from acts of homophobic abuse, harassment and vandalism, there is little the criminal or civil law can do to help us. 

I am a qualified Solicitor, and sought refuge in the civil law.  I attempted to obtain an Interdict, with power of arrest and non-harassment orders against our abusers.  However, even this route was blocked.  In order to take this action, I would have required the cooperation of the local Social Work department, and the Police in order to obtain the identities of the perpetrators of the abuse.  That cooperation was refused owing to “child confidentiality”. 

We also approached the local Council community safety team at the City of Edinburgh Council for help.  It is now four weeks and counting, but no response.  They have done nothing to help us, nor have they offered any support.  Yet, under the Antisocial Behaviour legislation, they could take action.  So why haven’t they?  In my view, it is down to a question of priorities, and upsetting their colleagues in either Social Work or the Housing Department is not a priority.  A local council is highly unlikely to take Court action against itself now, is it?

My partner and I, are now looking to relocate away from Edinburgh.  We have had enough.  I hope that when we move, we get to enjoy the peace and quiet in our own home, and the freedom from abuse, harassment and vandalism, that we should expect. 

I now expect you gentlemen to take decisive action, given our experience, to prevent anyone else having to endure this horrific torment. 

Yours faithfully,

 Daniel Donaldson

Sexual assaults against men...surely not?

Are men and women equal in the eyes of the law when it comes to sexual assault?

Is violence against women the same as violence against men?

This is a story from the past, but relevant to today concerning our attitudes of how we justify to ourselves right from wrong based on assumptions about gender.


When I was in my early 20's, I took to wearing my Kilt out and about, just on the odd time or two. On one occasion, I had stopped to tie my shoe lace or something, I cant quite recall what.

At the same time, a group of giggly girls and women passed by, I think they may have been on a Hen Night. Anyhow, two of the group approached me and tried to lift my kilt and feel me underneath.

I was, for want of a better phrase, quite shocked and had to push one of the girls off me. I also had to be quite forceful in telling the girls to "fuck off".

It was not a "bit of a laugh", at least for me.

My fault
I was wearing my Kilt. I naturally had decided to draw attention to myself. I therefore invited this kind of act...or had I?

Role reversal

Now consider this, had my gender been female, had I been wearing a nice outfit and looked good for a night out, would it have been acceptable for a group of men to come over and attempt to feel me up?

I hope all would agree that the answer is No!

So, why then, was it acceptable for a group of girls to do this to me?

Is gender relevant?

Time has moved on.

Unfortunately, our attitudes to sexual violence against both women and men have not.

The law has also changed. The Criminal Law, recognises that assaults of this type are gender neutral.

The moral of the story is...

So the next time you see a man in a kilt, or a woman wearing nice clothes, it is not an invitation to go and feel them up, to Wolf whistle or try to sexualise them in some other way.

Most importantly, if they decide to complain to a passing Police Constable, expect to get arrested.

Above all else, they didn't deserve it, because like everyone else that night, they had chosen to wear some nice clothes.

If you have been a victim of abuse and are seeking support, please use the links below to access help, advice and support.

The sites below are largely Scottish. However, if you would like to suggest other links, please get in touch.


If you are in immediate danger dial 999 for the police.


Police Scotland
http://www.scotland.police.uk/

Victim Support Scotland
http://www.victimsupportsco.org.uk/page/index.cfm

Scottish Domestic Abuse Helpline
http://www.sdah.info/

Scottish Women's Aid
http://www.scottishwomensaid.org.uk/

Abused Men in Scotland
http://www.abusedmeninscotland.org/index.html

Broken Rainbow - Lesbian, Gay, Bisexual and Transgender (LGBT) Abuse Charity
http://www.brokenrainbow.org.uk/

Statement Concerning the Scottish Courts Service

I have worked exceptionally hard over the last three years or so to promote equality within the Scottish Courts Service (SCS) as an unpaid volunteer member of their Equalities Advisory Group (EAG).

During this time, I took on many challenging subjects and in particular took a lot of time, outside of attending our regular meetings, to take forward additional work.  

I enjoyed this work and also looked forward to each of the meetings to which I contributed fully.  

Regretfully, I was told by Chair on Monday (17 February 2014) afternoon, that I was no longer welcome to be a member of the EAG.  

I am disappointed but to a certain extent, not surprised.    

It was not until I raised concerns recently about ongoing disability discrimination and transphobia, which were backed by evidence, that both Chair and the SCS management decided that I was no longer welcome.  

I tried repeatedly to raise these issues but felt that I was ignored.  

In particular, the SCS authorised the refurbishment of a court room in Dundee with scant regard to accessibility and more regard for financial expediency.  

Needless to say, I objected to this as it is not the manner in which our public services are meant to behave.  

It has subsequently been pointed out to me that as an EAG member I have no right to raise a grievance within the SCS and that the dignity at work policy does not apply to members of the EAG amongst other matters.  

In particular, it has also emerged that Chair has the right to remove members of the EAG.  

Raising a complain under the Equality Act is a protected act.  This means that a person raising a complain about disability discrimination and transphobia as I have done should not suffer any detriment for doing so.  

As a basic human right, everyone is entitled to have their dignity respected.  

Additionally, public bodies, such as the SCS, are required to apply the European Convention on Human Rights to all aspects of their work.   

Volunteer Development Scotland, together with the Scottish TUC, agreed a code of practice for organisations that work with Volunteers.  

The SCS does not subscribe to this code.  Amongst other things, the code states that:- 

Effective structures should be put in place to support and develop volunteers and the activities they undertake, and these should be fully considered and costed when services are planned and development.

 Volunteers and paid staff should be provided with opportunities to contribute to the development of volunteering policies and procedures.

 Volunteers, like paid staff, should be able to carry out their duties in safe, secure and healthy environments that are free from harassment, intimidation, bullying, violence and discrimination.

 All paid workers and volunteers should have access to appropriate training and development. 

There should be recognised machinery for the resolution of any problems between organisations and volunteers or between paid staff and volunteers. 

I was not told in advance that Chair intended to remove me from the EAG nor was I told about a secret letter that had been prepared and delivered to Chair by the SCS management. 

I was not given an opportunity to see this letter or address any of its contents. 

I was mislead as to the nature of this meeting. 

I was also accused of being "aggressive and threatening".  

My dignity was violated yesterday and I left our meeting in a distressed state.

At no stage have I ever been aggressive or threatening to anyone.  

I raised a complaint concerning the SCSs failure to address accessibility and transphobia.  I also stated that there was a problem with institutional discrimination.

I was victimised for doing so.

I was bullied by them.  

If the SCS had in place appropriate structures and machinery for addressing my concerns, I am sure that matters would not have gone this far.  Unfortunately, they do not.  

I am disappointed at the manner in which both Chair and the SCS have handled my complaints.  

I am also disappointed that it appears acceptable to unilaterally remove a member of the EAG, to write a secret letter about them and not provide any opportunity to answer its contents and then accuse someone like myself of being aggressive and threatening. 

I am now considering my position.  

A complaint has been made to the SCS about mondays meeting and the failure to address my concerns. 

We will wait and see what happens.  

I would welcome your support right now as it is a struggle to keep up the good fight on my own. 

This is even more difficult and distressing for me because I have multiple disabilities and I cannot come to terms with how this public body has behaved.

Yours for equality,

Daniel

Edinburgh Fringe - Positive

HIV and AIDS is never far from the front as fundamental issues go in terms of either Equality and Human Rights.  

The need for education around potential sources of transmission, the needs to support people who are HIV positive and perhaps most importantly the need for both societal and self acceptable are also very important.  

Positive, by the West Avenue Theatre Company, takes on the lot.

Here we meet Benji, diagnosed with HIV a year ago and still unable to develop self acceptance.  He is depressed, doesn't sleep well and has little by way of a social life.  He is young, single, gay man but scared of rejection in love.   

We also meet Benji's flatmate.  She is straight and unlike Benji, has a loving partner who fully embraces her and her HIV positive status.  She later tries to push him away; not wishing to burden him with her HIV "problem".   

The show uses the contrast between the two to great effect.

At first glance, it would be easy to conclude that the subject matter would make the show heavy.

However, this could not be further from the truth.  The show uses humour and situation comedy to really develop the issues involved.  Witty and wicked one liners never fail to make you laugh out loud; even when exploring the topic of sex with someone who is HIV positive as Benji is told by someone who lacked understanding:

"...you want to dip my perfectly healthy carrot into your houmous of death..." 

It's not always directly about the HIV though, Benji's complex relationship with his mother and her preconceptions are also explored.  She is genuinely trying to reach out into a world that she knows little about and dearly loves her son.

Can HIV be transmitted from sharing a glass of wine?  What about touching, kissing or the passionate embrace?  This creates some awkward moments, highlighting the struggle that HIV positive people face when telling people - particularly potential lovers - about their HIV positive status.

It is not until the end, that the show covers the most difficult aspect of living with HIV - the diagnosis.  The humour works here as well as not everyone could get away with calling the clinic information as a "bit too primary school" handing out " the leaflets of death..." 

If anyone did not know anything about HIV, about the transmission of the virus, or how it affects the day to day lives of people living as HIV positive you would have learned something from the content.

Positive, is first class; an excellent, educational comedy.

To book tickets to see the show, or to find out more information, please visit the Edinburgh Fringe Online Booking site.  

To find out more about the show directly from West Avenue Theatre, you can visit there site:
http://westavenuetheatre.com/2013/05/17/positive-heading-to-edinburgh-festival-fringe-2013-cast-crew-confirmed/ 

***Stop Press***

You can now listen to an exclusive interview with Rob Ellis, the Director, Will Marsh, who plays "Benji" and Nathalie Barclay who plays "Nikki" in the show.   

Edinburgh Fringe - The League of St. George

Skinheads have a certain stereotype; jeans, braces, boots and of course, racist fascism.  
Being Gay just does not fit.

Punk and skinheads may be something associated with 1976 London but Bricks and Mortar Theatre's League of Saint George actually bears more than a striking resemblance to 21st Century Britain.  

There is nothing quiet about this performance and you are hit with that almost walking in the door.

Punk bellows from stage, shouting, screaming excessive overt expressions of masculine identity carefully suppressing anything vaguely feminine.  Its this caveman mentality that sets the scene for the skewed sociology that is to come.

It becomes clear that growing up in this era, in a working class estate with diminished educational achievement and little employment prospects has bred a particular mentality of looking for someone to blame.  In this case, anger vents on local Sikh shop and restaurant owners.

The clever dichotomy of character is thrust into conflict when the lead protagonist - who is also Gay and having secretly declared his love for a handsome Sikh waiter - discovers that it is his lover and his restaurant that is the next target of League.

Although the inner struggle between establishing self identify and submitting to the will of the group carries throughout, other more subtle themes are also explored.  For example, the mother figure - a traditional home maker, assuming the gendered stereotype matching her societal expectation.  The father figure - trying his hardest to be a man, suppressing every public display or affection for his son or his wife - another gendered stereotype explored.

However, there is also the unexpected.  The show demonstrates that fascism has a more acceptable public face than street thuggery portrayed in stereotype.  Its an uncle figure, a family man, middle class, monied, house and family portrait about the fireplace.

This could have been a deliberate insert - a covert inference to Nigel Farage perhaps - with the UK Independence Party (UKIP) as the more socially acceptable, middle class face, of the League today?

Modern day Britain remains full of internal struggle and the sociology of 1970s London can be recognized today.  This is why The League of St. George is so powerful.  It explores modern day struggles, gendered expectations, relationships with family, poverty, the rise of right wing politics in the subtle historic context.

This show is not about just about a Gay Skinhead struggling with his identity.  Its also not purposely described as a Gay show.  The League of Saint George has multiple, complex strands of equality and human rights discourse.  The show has to be highly commended for its educational potential from this point of view.

If you want to see a refection of today's complex, austerity clad Britain mirrored in history, then this one is for you.

The League of Saint George is on at C Venues C- NOVA.  To buy tickets, or to find out more visit the Fringe booking site by clicking here.

To find out more about the show and the Bricks and Mortar Theatre Company, visit their site by clicking here. 
    

Is it a crime to be Transgender - Yes, it is, according to the ScottishHigh Court

In the High Court in Scotland, a transgender man, was sentenced to 3 years probation and 240 hours community service.

The man was charged and convicted of obtaining sexual intimacy by fraud.

The man did not reveal his gender recognition history to two female partners. When it was discovered that he was biologically female a complaint was made to the Police and he was subsequently charged with obtaining sexual intimacy by fraud.

The man was reported to have been 21 at the time and at least one of his partners was believed to be 15.

In Scotland, the Crown Office and Procurator Fiscal Service (COPFS) is the responsible body for prosecuting crime.

The COPFS is meant to act in the public interest and the reasons behind a decision to prosecute or not to prosecute are generally private.

The COPFS in making a decision, is meant to follow what is known as the Prosecution Code.

In this present case, a decision to prosecute on a different charge could have been made. However, this was not done.

Likewise, a decision could have been taken not to prosecute.

Taking this into account the COPFS has left itself open to accusations of transphobia.

The Equality Act 2010 and The Human Rights Act 1998

The COPFS is a public authority and as such, is not meant to discriminate, has to promote equality of opportunity and also to foster good relations between individuals who share protected characteristics.

It is not clear to what extent, if any, these obligations extend to or apply to the particular decision making process concerning whether or not to prosecute or what charge to bring in the event of a decision being made to prosecute.

The Equality Act does not extend to judicial decision making.

The COPFS is a public authority for the purpose of the Human Rights Act and decisions made in respect of prosecutions should be made in accordance with the Convention Rights and other International Law obligations.

Questions that arise

A number of important questions have been raised as a consequence of this particular prosecution.

1.  If the decision to prosecute or not to prosecute, is made in private with no reasons having to be provided, how can we be assured that that decision makers were not influenced by prejudice?

2.  Alternatively, if a decision is not made out of prejudice, could ignorance of this issues be involved - perhaps a series of wrong or false assumptions having been made?

3.  If the COPFS sought to act in the public interest, and followed the Prosecution Code, did it take into account the effect on the accused and the wider LGBT community? For example, reduced confidence in the judicial system by LGBT people and or more specifically creating a climate of fear amongst transgender people that if they do no reveal their full history to potential partners, they will face prosecution?

 

Scotland’s national transgender equality charity, The Scottish Transgender Alliance (STA), based at the Equality Network, warned that

“the nature of this prosecution has seriously undermined trans people’s trust in the Scottish criminal justice system.”

Nathan Gale, of the STA, has sought an urgent meeting with the Lord Advocate. Gale said:

“I sincerely hope that COPFS will understand the seriousness of trans people’s fears and respond to our call to take urgent steps to address them.”

Prejudice already exists

Transgender people already face a climate of prejudice and a lack of understanding.

It is conceivable, even if it was not intended, that such a high profile prosecution of this sort, will fan the flames of prejudice and actually create a retrograde approach to transgender equality issues in the broadest sense.

It has become too easy for people to read something, such as the BBC reporting of this case - which referred to the man in his birth gender rather than in his chosen gender - to assume that being Transgender is not real or some other form of sexual deviance because of the criminal prosecution in this present case.

Other news reports have also discriminated in this way. In one article, the man was described as a "sex fraud woman...".

The phraseology and use of language here is ignorant and dangerous. 

It creates a public perception that being transgender is not real - where women or men seek to impersonate for sex.

It also creates the false impression that being transgender is criminal. 

If the BBC and other media outlets can openly discriminate in this way, then it will only encourage others to do so as well.

No right to privacy?

Another interesting argument that has been presented by the Equality Network / Scottish Transgender Alliance, is that this prosecution creates a public perception that Transgender people are not entitled to their privacy.

The right to privacy is an important human right.

There can be exceptions and where there is a legal exception it has to be necessary and proportionate.

The exception also has to be applied equally across the board and not single out a particular group for special attention; in other words, any law permitting the exception should not discriminate.

A necessary and proportionate exception would include requiring someone who works with either Children or vulnerable adults to be a member of the Protection of Vulnerable Groups (PVG) scheme and have a Criminal Records Bureaux check. 

The above example of an exception, would apply equally to everyone.  It would not single out transgender people for special attention.

So why has the criminal law singled out a trans man for special attention in this case? 

Consider this hypothetical comparator, would a non transgender heterosexual male face prosecution for failing to reveal to his partner(s) his particular sexual history?

Similarly, would this hypothetical male also face prosecution for failing to reveal intimate details of his personal and private medical history to each and everyone of his partner(s)?

I believe that the answer to both questions is a resounding no!

Taking this into account, why then, should a transgender male, not be afforded the same right to privacy as the hypothetical comparator described above?

Different treatment for transgender people

This Equality Network highlights the differential treatment in this case by using a tangible comparator; 

"As a comparative example, a 31 year old man who had sex with a 14 year old girl who had claimed to be over 16 was prosecuted at the Sheriff Court and also sentenced to 240 hours of community service, whereas Wilson’s case was prosecuted at the High Court, reserved for the most serious offences. This lends weight to the STA’s claim that Wilson’s fraud prosecution was 'a completely inappropriate charge.' "

In my view, this is where the COPFS fails the public interest test.

As the prosecuting authority, it is bound to operate the same standard, whether gay or straight, trans or non trans.

It is not in the public interest to single out one particular group for special attention.

It is also not in the public interest to single out trans men or trans women for prosecution because they expect the same degree of privacy regarding their private lives as anyone else.

The prosecutor should also know, or ought to know that transgender people may feel isolated and marginalised and not know how or where to access support services.

These issues and others, such as the negative impact of the prosecution, should have formed part of the COPFS thinking in applying the Prosecution Code and then in their decision to prosecute. 

Questions - but for an appeal

I was not party to the full details of this particular case.

Hypothetically, if an appeal was raised, the Court could be asked to answer some of the questions posed by this article, for example the privacy issue.

A full analysis of the general law is outside the scope of this particular article, but other commentators have suggested that the offence of obtaining sexual intimacy by fraud may not actually exist as part of the Scottish statutory sexual offenses framework.

Stephen Whittle, Professor of Equalities Law at Manchester Metropolitan University, analyses this point in his blog article entitled "Chris Wilson: Convicted because of his Clothes"

If this is the case, and the COPFS is further challenged, it may offer another avenue for appeal.

If there is no offence, then there cannot be a prosecution.

In this case, one would have to ask, why did both the COPFS and the High Court allow a prosecution? Ignorance of the issues or prejudice?

There are also questions about the cross over between equality / non discrimination law and the criminal law.

Usually, in these cases, the Scottish Parliament has passed new legislation to rectify problems as and when they do arise. This has been the case with sexual offences to date, for example, making them gender neutral.

This does not mean that all of Scots criminal law has been updated; just the more obvious examples.

The majority of the criminal common law predates our non discrimination law and therefore it could be argued that existing criminal law - at common law at least - has to be reviewed again.

However, these are mute points.

There is one major stumbling block to any appeal here - the accused pled guilty.

The guilty plea has provided the COPFS and the Court with the perfect cover, even if mistakes have been made in this case.

Unless an exception can be made, and it is not beyond the realm of possibility, there will be no appeal and the questions posed concerning the legitimacy of the charge and a Transgender man's right to sexual privacy will go unanswered.

Other legal options available

It is still possible for the matter to return to Court. 

The Lord Advocate, could ask the Court to determine to true application of the criminal law in relation to a transgender people's right to privacy, taking into account the now developed jurisprudence of both Human Rights and Equality Law. 

This procedure, is known as a Lord Advocate's Reference.   

As a matter of Civil Law, anyone who now feels that the law discriminates against them, is entitled to seek as judicial review. 

In these circumstances, it may be possible, to ask the Court of Session - Scotland's Civil Supreme Court - to issue a special order known as a "declarator of incompatibility". 

If such an order were issued, the Scottish Government and possibly the Lord Advocate, would be required to act. 

Lessons for the future

Whatever happens in the future, the COPFS and Police will have lessons to learn from this case.

The Equality Network has been vocal in its criticism of the COPFS in this case and rightly so.

A petition has also been presented to the COPFS and a meeting sought with the Lord Advocate about the issues raised as a consequence of this prosecution.

In my view, this prosecution has set a dangerous precedent - in effect making it a crime to be Transgender.