Can rapists self-declare their sex?

The law on privacy and data collection

Police Scotland is under pressure for its controversial self-ID policy in relation to the recording of data on crime, including sexual crime. In evidence before the Petitions Committee, Police Scotland has revealed that on all systems relating to crime management and custody, it uses sex and gender interchangeably based on how someone self-declares. This applies to all crime, not just rape or sexual assault.

Katharina Kasper, chairwoman of the companies and conduct committee at the Scottish Police Authority, has criticised the policy for allowing those charged with or convicted of rape to self-declare their gender identity and for allowing that gender identity to supersede any record of biological sex. She warned that “this means male offender would potentially enter the criminal justice system as women” and criticised Police Scotland for failing to consider how this policy would affect female victims of male violence.

Calum Steele, former general secretary of the Scottish Police Federation, which represents rank-and-file officers, has also attacked Police Scotland for the policy, noting that “The institutions of the state have taken leave of their senses”.

The policy has also received criticism from several female MSPs from Labour, Alba and the Conservatives. Of particular contention is the claim made by Police Scotland that recording male rapists as women is required by “legislative compliance, operational need and the values of respect, integrity, fairness and human rights while promoting a strong sense of belonging”.

So, what does the law say about this? Dr Claire Methven O’Brien, an expert in international human rights law at the University of Dundee, has written an excellent blog post on the international human rights law requirements to record and retain information about sex in relation to crimes against women. In this post, I want to discuss the domestic law.

The default in law

Following Corbett v Corbett, Bellinger v Bellinger and A v Chief Constable of West Yorkshire Police, sex in law is, by default, biological sex. Everyone is legally classed as their biological sex except where a Gender Recognition Certificate issued under the Gender Recognition Act 2004 changes sex for some purposes.

Being protected under the characteristic of gender reassignment in the Equality Act 2010 does not change sex in law for any purpose. It protects against denial of employment, goods & services, or housing as compared to someone of the same biological sex who does not have the gender reassignment protected characteristic. So someone born natally male will by default be legally classed as male.

For example in Green v Secretary of State for Justice, a male inmate who began to identify as a woman after being convicted of the brutal torture and murder of Rachel Hudson, Green’s wife, claimed gender reassignment discrimination on various grounds. Green was held in a men’s prison and claimed discrimination arising from denial of tights, a wig, prosthetic breasts and vaginas, and difficulty in accessing makeup.

Discrimination claims require a Court or Tribunal to consider how the claimant was or would be treated compared to someone who is similar in all relevant respects except for the protected characteristic in question. In Green the court needed to establish that someone in a similar situation to Green but who didn’t have the protected characteristic of gender reassignment (because they were not proposing to undergo any attempt to reassign gender by changing attributes of sex) would be treated differently. This is where Green’s sex becomes relevant.

Green argued that the relative comparator must be a woman who does not have the protected characteristic of gender reassignment - a natal female - because Green was a woman. If a natal female would have been granted these items, then this is gender reassignment discrimination. The Secretary of State for Justice argued that Green was biologically and legally male and the correct comparator here must be a man without the gender reassignment characteristic such that the Court must ask whether another male prisoner would be denied access to these items and if they would be, this is gender reassignment discrimination. Similarly, if other male prisoners who didn’t have the gender reassignment characteristic were given access to recreation and exercise time but Green was denied it, then that would be gender reassignment discrimination. Asking how a hypothetical female prisoner would be treated is irrelevant.

The Court agreed with the Secretary of State, noting that:

He is in a male prison and until there is a Gender Recognition Certificate, he remains male. A woman prisoner cannot conceivably be the comparator as the woman prisoner has (either by birth or election) achieved what the claimant wishes. Male to female transsexuals are not automatically entitled to the same treatment as women – until they become women.

That leaves open the question of how a trans woman with a GRC ought to be treated. The Court here presumes, as have several in the past, that a GRC changes one’s sex for the purposes of the Equality Act. That has not, until now, been directly tested. Part of the reason for this is that most of the areas where the sex of an individual might matter - single-sex services and associations - are covered under exceptions in the Equality Act that would apply regardless of whether a GRC changed one’s sex.

Schedule 3 of the Equality Act allows providers to set up and maintain single-sex services such as rape crisis centres and female-only changing rooms and toilets. The Inner House of Court of Session in For Women Scotland v The Scottish Ministers held that

Those without a GRC remain of the sex assigned to them at birth and therefore would have no prima facie right to access services provided for members of the opposite sex.

This is the judgment that is being appealed to the Supreme Court, where For Women Scotland is challenging the separate conclusion that those who do have a GRC are classed for the purposes of the Equality Act as their acquired gender and subsequently do have a prima facie right of access to services provided for members of the opposite sex. That point does not undermine the established legal rule that without a GRC one remains their natal sex and has no prima facie right of access to opposite-sex services.

For those who do not have Gender Recognition Certificates, their legally recognised sex is their natal sex. The Equality Act does not create any statutory obligation to record information about sex on a self-ID basis. Police Scotland may be free to record information about an individuals gender identity - as far as I am aware this is not legally prohibited - but that is very different from refusing to record information about sex or for allowing self-declared gender identity to override data collection about sex. There appears to be no statutory obligation to do this and, in fact, failure to record accurate information about sex could put Police Scotland in breach of the Public Sector Equality Duty.

Gathering data under The Public Sector Equality Duty

Section 149 of the Equality Act 2010 contains the Public sector equality duty. It states that

A public authority must, in the exercise of its functions, have due regard to the need to—

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

Sex is a relevant protected characteristic and this means that there is an obligation on public bodies, including police authorities, to have due regard to the need to eliminate discrimination and advance equality of opportunity between men and women.

In R (Bracking & Others) v Secretary of State for Work and Pensions, the Court of Appeal stressed that the Equality Act 2010

imposes a heavy burden upon public authorities in discharging the PSED and in ensuring that there is evidence available, if necessary, to demonstrate that discharge. It seems to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities

This means that any policy introduced by Police Scotland which involves changing recording rules to remove an obligation to record the biological sex of offenders and to replace it with a record of gender or sex, used interchangeably based on self-declaration or observed presentation, must have been done with full consideration of the impact that this would have had female victims of male violence. If that impact was not considered, Police Scotland may be in breach of the Equality Act.

There is no explicit legal requirement under this duty to collect and use equality information. There is however, a requirement to have due regard to the needs set out in s.149 and to do that, public authorities must be aware of how their policies and practices affect those with particular protected characteristics, including sex. Collecting and analysing data relating to protected characteristics is an important mechanism by which authorities can meet this obligation and establish, with evidence, that they have discharged their duty when challenged in court.

In addition to the general PSED obligation set out in s.149, Scottish public authorities that are listed in the Schedule to the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 must comply with further duties. A police authority established under section 2 of the Police (Scotland) Act 1967 is one such authority. Other authorities subject to these specific duties include Chief Constables of a police force maintained under section 1 of the Police (Scotland) Act 1967; The Scottish Criminal Cases Review Commission; The Scottish Ministers; the Keeper of the Records of Scotland; the Keeper of the Registers of Scotland; the Register General of Births, Deaths, and Marriages for Scotland; and the Scottish Court Services.

A listed authority is under a special obligation to publish a set of equality outcomes that help them to better comply with the general equality duty every four years. When preparing and publishing these equality outcomes, listed authorities must consider relevant evidence relating to those who share a relevant protected characteristic and anyone who represents their interests. Every two years, listed authorities must publish a report of their progress towards achieving their equality outcomes.

A listed authority is also under an obligation to assess the impact of applying any proposed new or revised policy or practice against the needs mentioned in the general equality duty set out in s.149 of the Equality Act. When assessing this impact, listed authorities must consider relevant evidence relating to people who share a relevant protected characteristic and must take into account the results of this assessment when developing new policies or changing existing ones.

The implication of this is clear: where there is insufficient evidence, a listed authority must gather additional relevant evidence to ensure that they have an informed basis for setting new equality outcomes and for monitoring progress towards those outcomes and to consider the equality impact of their policies. Failure to conduct robust equality monitoring which accurately records sex could place a listed authority in breach of their legal obligations, especially if this failure arises from the result of a change in policy which did not have due regard for the impact that such a change would have on those who share a particular protected characteristic.

What about those with Gender Recognition Certificates?

The first thing to note here is that Police Scotland has not adopted a policy based on GRC status or legal sex in any way. It has chosen to record information in a way that cannot possibly meet requirements under the Equality Act 2010 because the protected characteristics that are relevant for those duties do not operate on a self-ID bases. However, there does remain an important question about how this law deals with those who have changed their legal sex for some purposes via the Gender Recognition Act.

Two further questions need to be addressed here. The first is the idea that, once a person has obtained a Gender Recognition Certificate, their sex has changed for all legal purposes to that which is recorded on the certificate. The second is that there are privacy rights protected under both the Gender Recognition Act 2004 and the Human Rights Act 1998 which make it unlawful to ask for, record, or retain information about a person’s biological sex if they have a Gender Recognition Certificate.

The first of these questions can be addressed in two parts. The first point to make is that the Gender Recognition Act does not change a persons sex for all purposes. Confusingly, that phrase is used in s.9(1) of the Act but then immediately contradicted by s.9(3) which states that the ‘for all purposes’ clause is subject to provision made in the Gender Recognition Act or any other Act. This means that the ‘for all purposes’ clause only has effect where there is no other statutory provision disapplying its applicability, either by express wording or necessary implication.

The second point is that it is currently unclear whether the definitions of man and woman in the Equality Act 2010, which are tied to being male or female, constitute provision made for the purposes of s.9(3). If they do, then sex in the Equality Act means biological sex and the PSED obligations pertain to biological sex not legal sex. Again it is worth stressing that this point makes no difference for Police Scotland’s policy because it has not operated on the basis of the Equality Act, it’s adopted a self-ID model which has been shown conclusively to be incompatible with the Equality Act.

The second question raises issues that were conclusively addressed by the Supreme Court in the case of C v Secretary of Stat for Work and Pensions. The case concerned how the DWP, in administering the welfare benefits system, treats those who have undergone gender reassignment, and specifically whether some of its policies conflicted with the Gender Recognition Act, the Human Rights Act, or the Equality Act.

C was born male but underwent gender reassignment surgery, including facial feminisation surgery for the purposes of ‘passing’ as a woman, and obtained a Gender Recognition Certificate in 2004. In 2010, C became unemployed and had been in receipt of Jobseeker’s Allowance, a benefit administered by the DWP, for several years since then. C brought this challenge over concerns that information relating to natal sex was being retained and used by the DWP and that this was causing distressing interactions with officials at the department.

As a part of its administration, the DWP recorded information about a persons current legal sex, the fact that they were previously recorded as having a different sex (if applicable), the fact that a person has a GRC (if applicable), the date of issue of the GRC, the date of notification to the DWP about a GRC being issued, and (where this is the case) the reasons for a change of recorded sex being gender reassignment. This information is held for the life of the individual concerned and for 50 years and one day after death.

At the time this case went to the Supreme Court, information about an individuals previous name, title and sex, was visible to front-line staff. This would mean that C’s gender reassignment could be readily inferred from the information available to such staff without an additional layer of protection for sensitive information. The DWP’s policy was to have special procedures in pace for dealign with records of certain categories of customer who’s information is deemed sufficiently sensitive to warrant heightened protection from disclosure. Examples include, victims of domestic or honour based violence or people in witness protection where disclosure of information relation to previous names and titles could expose them to risk of harm. Those with a GRC are automatically included within this system unless they ask for these procedures to the disapplied.

Under the DWP policy, an individual covered by these special procedures will have their records marked with an indication ranging from private, restricted, confidential, secret to top secret. Transgender records were marked as restricted, meaning that persons wishing to access them had to be specifically authorised and had to have a legitimate business reason. Processing benefits claims is therefore marked by delays and inconvenience.

C challenged these policies as being incompatible with sections 9 and 22 of the Gender Recognition Act; incompatible with rights protected under articles 3, 8 and 14 of the ECHR and; amounting to unlawful discrimination and harassment prohibited by the Equality Act.

The Gender Recognition Act claims

Section 9 of the Gender Recognition Act states:

“(1) Where a full gender recognition certificate is issued to a person, that person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a women).

(2) Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards).

(3) Subsection (1) is subject to provision made by this Act or any other enactment or subordinate legislation.”

Section 22 makes it a criminal offence “for a person who has acquired protected information in an official capacity to disclose that information to any other person”. Section 22(2) provides that, once a GRC is issued, protected information includes information which “concerns the person’s gender before it becomes the acquitted gender”. It is clear from the Act that “an official” capacity will include information obtained by the DWP and by the police, but not necessarily information obtained in other ways or by other people not engaged in official work such as the civil service, public authorities, voluntary organisations, employment, the conduct of business or the supply of professional services. Section 22 pertains to disclosure not to gathering of information. There is nothing in s.22 that prohibits anyone from gathering information about a persons biological sex, only a prohibition on disclosure, where no exception applies, if one comes across this information in an official capacity.

Importantly for the purposes of this post, s.22(4) states that it is not an offence to disclose protected information if “the disclosure is for the purposes of preventing or investigating crime”. Similarly, it is not an offence to disclose information if “the disclosure is made for the purposes of the social security system or a pension scheme”.

C accepted that section 9 of the GRA “does not rewrite history”. Thus, in J v C [2006] EWCA Civ 551, the issue of a full GRC in the male gender to a natal female did not retrospectively validate a previous marriage to another female (at a time when the law did not permit same-sex marriage). Nevertheless, C argued that s.9(1) did require current records to reflect a changed gender and to remove previous records. The Supreme Court rejected this, concluding at [24] that

“There is nothing in section 9 to require that a previous state of affairs be expunged from the records of officialdom. Nor could it eliminate it from the memories of family and friends who knew the person in another life. Rather, sections 10 and 22 provide additional protection agains inappropriate official disclosure of that prior history”

What is more, the Court stressed at [25] that is is clear from the structure of the Gender Recognition Act that this information is expected to be recorded in circumstances where the exceptions set out in s.22(4) apply, including in the operation of the social security system or for the prevention or investigation of crime:

“Section 22 … protects from disclosure by officials information concerning a person’s gender before it became the acquired gender. It contains several exceptions… Obviously, therefore, section 9 contemplates that the previous history may be kept on record, for otherwise there would be no need for the protection given by section 22”

The Court therefore concluded that the retention policies of the DWP were not inconsistent with, or prohibited by, any provision of the Gender Recognition act 2004.

The Human Rights Claims

The Court accepted that the data retention policies of the DWP engaged the Article 8 privacy rights of those who have undergone gender reassignment. It is unclear from the judgment whether this means only those who have obtained GRCs or if it also included those who have undergone medical intervention in the form of surgery. It may also include those who self-identify as members of the opposite sex, but, again, this is not clear from Lady Hale’s judgment. Either way, the Supreme Court concluded that while this right was engaged, interference with it was lawful and justified as a proportionate means of achieving a legitimate aim.

Two legitimate aims were advanced by the DWP. The first was the need to retain the information for the purpose of calculating entitlement to state retirement pension. A transgender person has pension rights in his or her acquired gender from the date of the issuance of the GRC. This means that the date of issuance will be material to the calculation of the entitlement of some people. The DWP will need to know the date for the purpose of checking entitlement at the time benefits are issued and also for checking and maintaining claims after.

The second legitimate aim advanced was the need to identify and detect fraud. The Court accepted that there is a particular risk of identity theft in the cases of transgender people. A fraudster could obtain a birth certificate in a transgender persons original name and use this, along with other evidence, to obtain a national insurance number allocated to that name. Two examples of this were detected by the DWP in 2012.

For the purposes of this post, we can include the prevention and investigation of crime, the protection of the rights of women, and the gathering of information relevant to meet obligations under the Public Sector Equality Duty as legitimate aims for the purposes of a similar policy of retention undertaken by the police.

The Supreme Court concluded that the DWP retention policy was proportionate in its interference with the privacy of C because it was pursuing legitimate aims which required accurate recording of information about C’s natal sex while taking steps to ensure that this information was subject appropriate protections to prevent unnecessary disclosure.

Discrimination Claims
Finally, the Supreme Court addressed the claims brought in relation to the Equality Act. It concluded at [42] that ‘it is not clear in what way transgender customers are treated less favourably that others … because of their transgender status”. This is because the system retains information about changes to names and titles of all customers. There is no differentiation made on the basis of transgender status and so a claim of direct discrimination grounded on gender reassignment was not made out.

When it came to indirect discrimination, the Court was willing to accept that retention of this information is more sensitive for those protected under gender reassignment and so the DWP policy may place them at a particular disadvantage. Nevertheless, for the reasons set out above, it is justified as a proportionate means of achieving a legitimate aim.

Conclusion

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. Indeed, it is highly likely that failure to do so without having due regard to the impact upon female victims of male violence engages obligations under the Public Sector Equality Duty. This is to say nothing of the need to consider the impact of policies which not only fail to record sex but which allow sex to be recorded interchangeably with self-declared gender identity.

There are several myths floating around about the gathering, retention, and disclosure of information about an individuals biological sex. These myths include the claim that the Gender Recognition Act makes it a crime to ask someone about information about their natal sex; the claim that the right to privacy makes it unlawful to ask for, record, retain, or disclose this information in any capacity, and that the Equality Act prohibits such policies as unlawful gender reassignment discrimination. Each of these claims is false. Each has been addressed directly by the Supreme Court of the United Kingdom and rejected conclusively. Any body, including Police Scotland, which claims to the contrary is, at best, woefully misinformed as to the applicable law and, at worst, recklessly spreading misinformation about it.