Police Scotland: ‘A man who commits rape or serious sexual assaults will be recorded as a male’

Police Scotland has written to the Scottish Parliament’s Criminal Justice Committee to give assurance that any “man who commits rape or serious sexual assaults will be recorded as a male”. 

In the letter, the force says that there is no instance or record on its systems of a male having been arrested and charged with rape whose gender has been recorded as female. 

The issue was raised earlier this month at First Minister’s Questions by Tory MSP Rachael Hamilton, who referred to the case of convicted sex offender Isla Bryson, who was last year jailed for eight years for raping two women while living as a man, and asked whether the first minister is “content to let another Isla Bryson situation happen”. 

John Swinney said the issue was an “operational matter” for Police Scotland and said he couldn’t intervene. 

The question came after Police Scotland told Holyrood’s Citizen Participation and Public Petitions Committee that those charged with crimes have the right to “self-declare” their gender.

In a letter published today, the force said that, along with other public bodies, it has, in the “absence of direction” from both the Scottish and UK parliaments, had to determine its policy and practice “in a way that achieves a legal and appropriate balance of rights and duties”. 

Deputy Chief Constable Alan Speirs said: “Police Scotland recognises that gender self-identification is a sensitive area of public policy. The Scottish and UK Parliaments have not yet set out a clear position around the legal status of the concept of gender recognition in a way that reconciles with the Equality Act 2010. The absence of direction has left Police Scotland and other public bodies to determine policy and practice in a way that achieves a legal and appropriate balance of rights and duties.  

“Police Scotland’s procedures on the identification and recording of sex and gender is evidence-led, aligns to legislative and operational requirements and is in keeping with our values of policing with integrity, fairness and respect, and upholding human rights.” 

Police Scotland said it obtains DNA samples from individuals accused of serious sexual assaults which would determine the person’s biological sex. 

This is a policy Police Scotland says has been in operation since 2019, citing its implementation due to the lack of direction from Holyrood and Westminster. 

Speirs said: “By way of further reassurance, as it relates to individuals charged with, or convicted of serious sexual assaults, Police Scotland obtain DNA samples from individuals accused of serious sexual assaults and from this sample a DNA profile will be obtained that will determine the person’s biological sex. This profile, and biological sex, are retained on the Scottish DNA Database and are available to be searched against crime scene samples to aid historic and future investigations.  

In the absence of direction, in 2019 Police Scotland established an operational policing position, this remains unchanged.” 

Speaking to Sky News, Chief Constable Jo Farrell said any individual suspected of rape sex would be treated as a man. 

She said any sexual crime committed by a biological male will be recorded as such, regardless of whether they identify their gender as female.  

Farrell said: “An individual [who] comes into custody, and if the sex of that person is pertinent to the investigation they will be treated, in the scenario of a rape, we will investigate that as a man.” 

She added: “You can only commit that crime as a man.” 

Reacting to the letter, academic research organisation Murray Blackburn Mackenzie (MBM) said: “This is a major U-turn by Police Scotland. We welcome that Police Scotland has at last recognised that allowing sex offenders to self-identify their sex is indefensible. It is, however, an extraordinary act of institutional gaslighting to pretend that this is not a significant policy change from their position over almost five years. Over that period, Police Scotland has persistently and vigorously defended the use of self-ID for recording the sex of all offenders, including sex offenders, as being in line with its ‘values’.” 

MBM cite an FOI from Police Scotland in 2021, which says: “If the male who self-identifies as a woman were to attempt to or to penetrate the vagina, anus or mouth of a victim with their penis, Police Scotland would record this as attempted rape or rape and the male who self-identifies as a woman would be expected to be recorded as a female on relevant police systems.” 

It also raised an instance when in 2023 the force told the Scottish Parliament’s Citizen Participation and Public Petitions Committee: “A woman may be recorded as having committed rape in the following scenarios: … Where a person born male, obtains a full gender recognition certificate and then commits rape (providing they have a penis) [or] If the attending officer is satisfied the individual presents as a female and subsequently records them as such on our crime systems which, if the offender is a first time offender and having a new record created on Crime History System (CHS), will be created as female...”