Time for self-reflection: How public bodies got into a mess over sex and gender

It’s nearly two years since MSPs worked long into the night debating legislation which would have effectively allowed trans people to self-declare their gender. While ultimately passed, the Gender Recognition Reform (Scotland) Bill was never enacted, concerns about its implications for the UK-wide Equality Act causing then Scottish Secretary Alister Jack to block the proposals. But if self-ID didn’t make it onto the statue book, many Scottish public bodies – including those in the criminal justice system – are already acting as if it’s law. 

Earlier this month, Police Scotland was criticised after it confirmed that those charged with crimes have the right to “self-declare” their gender. In a letter to the Scottish Parliament’s public petitions committee, the national force said it required no evidence of biological sex or gender identity unless it is “pertinent” to an investigation.

“This practice adheres to legislative compliance, operational need and the values of respect, integrity, fairness and human rights whilst promoting a strong sense of belonging,” the force said in its note to MSPs. 

The committee is currently considering a petition, first submitted in 2021, which calls on the parliament to urge the Scottish Government to require that Police Scotland, the Crown Office and the Scottish Courts Service accurately record the sex of those charged or convicted of rape or attempted rape. It was lodged two years before double rapist Adam Graham changed gender to become Isla Bryson while waiting to stand trial for serious sexual assaults perpetrated in 2016 and 2019. After being found guilty, Bryson was initially remanded in Cornton Vale women’s prison before being moved to the male estate following a public outcry. A photograph of Bryson wearing a blonde wig and leggings taken outside court perfectly illustrated the concerns around gender self-ID which former first minister Nicola Sturgeon had memorably described as being “not valid”.

Lucy Hunter Blackburn, one of the petitioners and part of the policy group Murray Blackburn Mackenzie, says the police’s acceptance of self-ID when it comes to recording crime not only “messes with the understanding of female offending” but is “offensive” to the victims of crime, who are overwhelmingly women in sexual offences cases.

“It’s offensive to women like the victims of Isla Bryson or [former SNP equalities officer and convicted sex offender] Cameron Downing,” Hunter Blackburn says. “It’s offensive to tell someone they have been the victim of a woman when they have been a victim of male violence. It shouldn’t be acceptable to ever put women in that position.” 

Under the 2010 Equality Act, “gender reassignment” is a protected characteristic, meaning anyone who has changed from their birth sex to their preferred gender cannot be discriminated against. The person does not have to have undergone any medical treatment and they do not have to have obtained a Gender Recognition Certificate (GRC). But the legislation does allow for exceptions, such as preventing a trans woman – even one with a GRC – from accessing a women-only space if considered proportionate.

Claire Methven O’Brien, a reader in law at the University of Dundee and a member of the Scottish Human Rights Commission, describes Police Scotland’s position on data collection as “perplexing” and at odds with commitments the national force has made to tackling violence against women and girls. In a blog written for the website Legal Feminist, she says Police Scotland’s position that gender self-ID is necessary for legal and human rights reasons is not only incorrect but actually flies in the face of a series of international conventions that rape statistics should be broken down to record the sex of both victim and perpetrator. 

And Michael Foran, a lecturer in public law at the University of Glasgow, says not only is there no statutory obligation on Police Scotland to allow self-ID, but failure to accurately capture information about sex could put the force in breach of the Public Sector Equality Duty. 

In a blog on the subject, he wrote: “Whatever way you look at it, from the Gender Recognition Act, to the Human Rights Act, to the Equality Act, there is nothing in our statutory framework that would indicate that there is a legal obligation not to accurately record the sex of those being investigated or prosecuted for rape.”

Amid the confusion, the national force last week sought to clarify its position ahead of an appearance by Chief Constable Jo Farrell at a meeting of the Scottish Police Authority. Appearing to contradict the statement it had previously given to the petitions committee, Deputy Chief Constable Alan Speirs wrote to the parliament’s justice committee rejecting suggestions that a man who has committed rape can demand to be called ‘a woman’. “This would not happen,” Speirs wrote. “The committee should be absolutely assured that a man who commits rape or serious sexual assaults will be recorded as a male.” The petitioners described it as “major U-turn,” accusing Police Scotland of “an extraordinary act of institutional gaslighting”.

Making her statement to the SPA board the following day, Farrell said: “I have spent my entire career of more than 30 years in policing facing and challenging misogyny while supporting the rights and progression of women and I will continue to do.

“To be clear, a male rapist cannot demand to be called a woman and further traumatise the victim. This would not happen and to my knowledge, has never happened. You can be assured that a man who commits rape or serious sexual assaults will be recorded by Police Scotland as a male.”

Calum Steele, a former general secretary of the Scottish Police Federation, which represents 98 per cent of rank-and-file officers, says the national force should be routinely recording a person’s sex – not their gender identity. “The fact that Police Scotland has conflated sex and gender so readily is in itself deeply unhelpful and is inevitably going to lead to a situation where in trying to please all of the people all of the time, they please none of the people none of the time. The recording of gender is where the biggest landmine in all of this can be found simply because it is such an innate feeling.”

Last year, Andrew Miller, who lived as Amy George, was jailed for 20 years for the abduction and sexual assault of a schoolgirl. Miller, who identifies as transgender, had been dressed as a woman when he offered his victim a lift. At the time of his arrest, he was presenting as a woman but told officers to address him as Andrew Miller. He was subsequently treated as male by the criminal justice system.

“The [police] service would have investigated based on the facts of the case,” says Steele. “But there are practical questions as to who was going to undertake the [police] search if Andrew Miller was presenting as a woman.”

Steele says when such sexual offences cases reach court, if a person’s gender identity is to be respected, it becomes difficult to square that with the rights of the victim.

“It’s impossible to see how that balance can be maintained if the leaning is towards referring to the transgender identity… without causing significant angst and upset and almost certainly trauma to the victims and even, in many cases, the witnesses.” 

The concern over Police Scotland’s recording of crime statistics and the recent controversy surrounding Edinburgh Rape Crisis Centre has once more ignited the debate around self-ID which so dominated Scottish politics during passage of the Gender Recognition Reform Bill. Mridul Wadhwa, a trans woman, resigned as head of ERCC earlier this month after a damning report found the service had failed to protect women-only spaces. The independent review said Wadhwa had “failed to set professional standards of behaviour” and “did not understand the limits on her role’s authority”. The review was commissioned after an employment tribunal found that ex-employee Roz Adams had been unfairly dismissed from her role at ERCC for expressing so-called gender-critical views.

Publication of the report led to calls for Rape Crisis Scotland chief executive Sandy Brindley to quit, including in the Scottish Parliament where Tory MSP Sue Webber said the ERCC’s “culture of ostracising those with gender critical beliefs” had been “enabled” by former first minister Sturgeon. Brindley later apologised to rape survivors before getting into a row online with JK Rowling, who she accused of spreading “misinformation”. Rowling, who was involved in setting up Beira’s Place, which supports women who have been victims of sexual violence and is run only by women, tweeted: “Under your leadership, multiple women self-excluded from the Edinburgh centre because of the male CEO [Wadhwa] you defended and praised.”

Chief Constable Jo Farrell made a statement on sex and gender | Alamy

Hunter Blackburn says public bodies and charities defaulted in favour of self-ID because they were “very persuasively lobbied” going back over many years. “It’s obviously not unique to Scotland,” she says. “In England, Stonewall had a big part to play but up here it’s been Scottish Trans, which is part of the Equality Network. 

“It’s happened because, let’s be generous, people genuinely believed this was the right thing to do and the lobby groups were very good at persuading them to do it. It’s been part of a very strong push over a long period. But why were public bodies so easily lobbied and why didn’t they join the dots?

“The impacts on women weren’t taken seriously enough and that’s very difficult to avoid concluding. Often it’s the most vulnerable women. One thing that’s really clear to us is that people don’t really care about women in prison. Social class is also huge in this argument. Sex and class made it easier for the arguments of one group to land successfully.” 

In Scotland’s prisons self-ID was once the received wisdom (subject to safeguards) and while a review was under way at the time of the Isla Bryson case, the controversy initially forced an urgent change. In 2014, the Scottish Prison Service’s Gender Identity and Gender Reassignment Policy was drafted in conjunction with the Scottish Trans Alliance (now Scottish Trans) and allowed for prisoners to be housed on the basis of their gender identity, subject to an assessment. The Equality Network, of which Scottish Trans is part, did not respond to a request for comment for this article. 

Following the uproar associated with the Bryson case, an investigation was ordered by then justice secretary Keith Brown. It led to a decision to house newly convicted or remanded trans prisoners in jails according to their birth sex. Under an updated policy published earlier this year by the SPS, trans women can still be admitted to a female prison, but only if there is “no apparent or obvious risk” and if they have not previously been convicted of acts of violence or sexual violence against women or girls. 

Politically speaking, the key figure in all of this is the former first minister. Under Sturgeon, the Scottish Government brought forward reform of the Gender Recognition Act and helped toxify the debate by casting critics or those raising genuine concerns as misguided or, worse still, bigoted. During a debate at Holyrood in September 2021, the then first minister urged opponents to focus on the “real threats” to women’s safety. “We should focus on the real threats to women, not the threats that, while I appreciate that some of these views are very sincerely held, in my view, are not valid”.

The Gender Recognition Reform Bill passed in December the following year with the support of Labour, the Lib Dems, the Greens and two Scottish Conservatives. An amendment put forward by SNP MSP Michelle Thomson, a survivor of sexual assault, which sought to pause the process of obtaining a GRC for men charged with a sexual offence was rejected. When Isla Bryson was convicted the following month, Sturgeon was repeatedly pressed at FMQs on the offender’s gender: “She [Bryson] regards herself as a woman. I regard the individual as a rapist.”

After replacing Sturgeon as SNP leader and first minister, Humza Yousaf initially promised to challenge the UK Government’s block on gender recognition reform in the courts. But when the Court of Session rejected a Scottish Government legal challenge to the veto, Yousaf wisely let it drop. His successor, John Swinney, has vowed to learn lessons from that episode, pledging to work with Westminster on a UK-wide approach to banning conversion practices, something the SNP had previously planned to legislate on. 

Pressed recently on self-ID at First Minister’s Questions, however, Swinney said it was an “operational matter” for Police Scotland. “There would be outrage if I were to interfere in the actions and the decision making of Police Scotland and the law is clear that I cannot do that,” he said in a response to a question from Tory MSP Rachael Hamilton, who said it was “grotesque” that rapists were being allowed to self-identify as women.

Mridul Wadhwa, who resigned as head of Edinburgh Rape Crisis Centre earlier this month | Scottish Parliament TV

Three years on from the petition on the recording of rape being submitted to parliament, senior officers from Police Scotland have yet to be called in to explain their position before MSPs. While Swinney says he can’t interfere in operational matters, Police Scotland last week highlighted the lack of direction from parliament, leaving public bodies to “determine policy and practice”. 

Nevertheless, the level of scrutiny – both in the media and from oversight body the Scottish Police Authority – has forced at least one key public body to clarify its position. 

“It’s perfectly reasonable to want compassionate treatment for everyone who comes into contact with the police,” says Hunter Blackburn. “But this is not the way to achieve it. It appears that sense has now prevailed in the context of rape, but it is still unclear what Police Scotland recording policy is in relation to other crimes, including non-sexual violence against women.”