The legal framework for gender identity

Police Scotland seek more guidance

The Chief Constable of Police Scotland, Jo Farrell, has criticised the Scottish and UK parliaments for failing to provide clear statutory guidelines for public bodies to deal with issues relating to gender identity. This comes amidst ongoing controversy over rules for how biologically male sex offenders who express a transgender identity will be recorded by the police.

This week, Farrell told a meeting of the Scottish Police Authority that public bodies have been left to develop their own policies in this area due to a lack of clear guidance from and about the legislative framework. In a letter to Holyrood’s criminal justice committee, Alan Spears, Deputy Chief Constable, stated that:

“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

In one sense, this is a strange criticism to make, but in another, it is entirely understandable. The criticism is strange because there is a legal framework for dealing with both sex and gender reassignment in the investigation, recording and prosecution of crime. I’ve set out part of that framework in detail here. There is an extensive legal framework, spanning primary legislation, secondary legislation, and caselaw, including jurisprudence from the UK Supreme Court, all of which establish a complex nexus of legal rules and principles. This includes express provision in both the Gender Recognition Act 2004 and the Equality Act 2010 for police activity involving the recording and disclosure of information relating to an individual’s sex.

So, we have a legal framework. Yet, there is still a sense in which it is completely understandable that Police Scotland may feel as though there is no clear guidance. The issue is twofold. First, much of the legal framework is tied to legal tests that involve judgment as to what counts as a proportionate means of achieving a legitimate aim. Second, and perhaps more pertinent, the Police are not just operating with reference to a abstract legal principles; they are responding to a changing Scottish government policy environment characterised by active attempts to ‘move beyond’ the law, sometimes in ways that directly conflict with legal obligations. Add to this a training and lobbying environment that contains active disinformation, and it’s no surprise that public bodies balk at the idea of exercising their own judgment.

I want this post to be a resource for those seeking guidance on the law in this area. So, in the interest of completeness, I will replicate some material that I have written elsewhere.

Sex and Gender Identity 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.

The Equality Act protects both sex (s.11) and gender reassignment (s.7). Sex is defined in s.11 as referring “to a man or to a woman”. These terms are defined in s.212 as follows. A man is defined as “a male of any age” and a woman is defined as “a female of any age”. There is some uncertainty as to whether references to male and female are intended to reflect the common law position that sex is defined by reference to biological sex, or to reflect the category as it is understood under the Gender Recognition Act. This uncertainty stems from separate provisions in the Gender Recognition Act which create scope for a GRC to have no legal effect in certain areas, such as inheritance and sex-specific crimes. In November, the UK Supreme Court will consider whether the definition of sex in the Equality Act tracks biology or legal documents.

Let’s park Gender Recognition Certificates for the moment, because Police Scotland does not have a policy that differentiates on this basis and it is one step removed from gender identity which seems to be where most of the confusion is centred.

Gender reassignment is defined in s.7 of the Equality act as covering a person who is “proposing to undergo, is undergoing, or has undergone a process or part of a process for the purpose of reassigning sex by changing physiological or other attributes of sex”. Those protected under gender reassignment are defined in s.7(2) as transsexual.

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.

So, that’s sex and gender reassignment. But what about gender identity? There is no such concept directly referenced in the Equality Act 2010. Some legislation and regulations have made references to gender identity in the context of Hate Crime for example, but that places no obligations on public bodies in how they carry out their functions in terms of recording of information.

The protected characteristic of gender reassignment is likely to be interpreted capaciously, but not everyone who identifies as transgender or who identifies as a member of the opposite biological sex will be covered. In AA v NHS Commissioning Board, the High Court stressed that the work “proposing” in the statutory test (proposing to undergo … a process, or part of a process for the purpose of reassignment sex) “connotes a conscious decisions which can properly be described as settled, to adopt some aspect of the identity of a gender different from that assignment as birth. A passing whim will not do, but nor is an intention required that the change should be permanent”. [131] As such, not everyone who expresses a trans identity will be covered under gender reassignment, if they have not made a conscious, settled, decision to undergo some process or part of a process of changing sex.

This being the case, however, there is also the protected characteristic of religion or belief in s.10 of the Act. The Employment Appeal Tribunal in Forstater v CGD Europe recognised that “gender identity belief” is a protected belief. This is the belief that

“… everyone has a gender which may be different to their sex at birth and which effectively trumps sex so that trans men are men and trans women are women”.^⁠

The fact that this belief is protected does not mean that public bodies must proceed as if it is true, just as the fact that gender critical belief is protected or Christian belief is protected does not create any such obligation to affirm their truth.

So, let’s recap:

1. The default in law is that sex means biological sex

2. Being protected under gender reassignment or holding gender identity beliefs does not change one’s sex in law.

3. The Gender Recognition Act 2004 sets out a framework for changing one’s sex for some legal purposes, but there are exceptions and it is currently unclear how this affects the Equality Act 2010. Thus far, Police Scotland have not operated a policy based on GRC status anyway.

4. Being protected under gender reassignment, sex, gender identity belief, or gender critical belief, carries with it some protections in law that public bodies must be cognisant of.

So the issue now is whether there are any obligations on public bodies to proceed on the basis that an individuals self-declared gender identity takes precedence over their biological sex. Here is where things get complicated.

Gender Reassignment Discrimination and Proportionality

One of the reasons why Policy Scotland may be expressing frustration that there is not adequate guidance in the form of legal rules in this area is because the law operates by reference to general standards which require duty-bearers to exercise judgment. They are required to balance competing interests and determine whether what they have decided on is a proportionate means of achieving a legitimate aim.

For example, if a biologically male person who identifies as a woman is arrested and charged with rape, tensions may arise over what legal obligations the police are under in terms of recording. On the one hand you have the Public Sector Equality Duty which indicates that accurately recording information on sex could be an important way meet obligations in the Equality Act. You can read more on that here.

On the other hand, some have argued that recording this person as male could amount to a violation of the right to privacy protected under the Human Rights Act 1998 or to unlawful indirect gender reassignment discrimination. The issue with both of those claims is that the legal test for determining whether there has been unlawful interference with privacy or unlawful indirect discrimination rest on a proportionality analysis. That makes things less clear, and sometimes, in areas of heightened public controversy, the government or bodies such as the Equality and Human Rights commission may chose to issue further guidance on what they take the right balance to be. Without that guidance, public bodies such as Police Scotland are left to form their own judgment on this. That is risky because the legal tests are objective: if you think what you are doing is proportionate but a court disagrees, that can create liability issues.

So I want to provide some guidance here for those trying to come up with policies that meet legal obligations under the Equality Act. The first point to note is that nothing in the Equality Act places an explicit obligation on duty-bearers to act as if gender identity supersedes on or oversights sex. There are legal obligations relating to sex that do not go away at the moment that someone asserts a transgender identity.

Secondly, at the level of legal doctrine, there is nothing disproportionate per se about a blanket policy. The UK Supreme Court over the course of the last 20 years has repeatedly affirmed this position. For example in R (Begum) v Headteacher and Gvnrs of Denbigh High School [2006] UKHL 15 a blanket uniform policy was held to be proportionate notwithstanding the fact that one student wished to wear the jilbāb. There was no requirement on the Headteacher to conduct a case-by-case assessment, nor even to consider complex proportionality analysis at the level of granular detail:

“the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant’s Convention rights have been violated …. But the House has been referred to no case in which the Strasbourg Court has found a violation of Convention right on the strength of failure by a national authority to follow the sort of [full proportionality] reasoning process laid down by the Court of Appeal.”

The affirms the important principle that duty-bearers “cannot be expected to make such decisions with textbooks on human rights law at their elbows” [68]. What matters is the substantive outcome: the Convention “confers no right to have a decision made in any particular way. What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under article 9.2?” [68]. Employers and service providers cannot be expected to engage in full proportionality analysis every time they set or apply policy.

Most recently, the Supreme Court has affirmed this position in Reference by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32:

“questions of proportionality, particularly when they concern the compatibility of a rule or policy with Convention rights, are often decided as a matter of general principle, rather than on an evaluation of the circumstances of each individual case. Domestic examples include R (Baiai) v Secretary of State for the Home Department[2008] UKHL 53; [2009] 1 AC 287, the nine-judge decision in R (Nicklinson) v Ministry of State for Justice [2014] UKSC 38; [2015] AC 657, and the seven-judge decisions in R (UNISON) v Lord Chancellor (Equality and Human Rights Commission intervening) [2017] UKSC 51; [2020] AC 869 and R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2022] AC 223.”

It is entirely within the discretion of duty-bearers to adopt general rules and policies. An assessment of these rules and policies can be done with regard to the rule or policy itself without the need to conduct a full proportionality test every time a rule or policy is applied.

When thinking about proportionality it is important to think about the reason why an exists in the first place. If the reason why sex is recorded in crime investigation is related to meeting legal obligations under the Public Sector Equality Duty, or is related to accurate recording for the purposes of operational planning, then there may be a need to maintain records of biological sex, especially where doing so is necessary to meet other legal obligations.

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.

In the specific context of gender reassignment, the Supreme Court has provided clear guidance that there will be times when it is entirely permissible to maintain records based on biological sex.

It is worth stressing here that, while there are general standards in the legislative framework that do require judgment on the part of the police, there has also been extensive provision made within this legislative framework for police activities. They include an exception in s.22(4) of Gender Recognition Act which permits disclosure of information relating to a GRC holder, including information about their birth sex if “the disclosure is for the purpose of preventing or investigating crime”. The Supreme Court in C v Secretary of Stat for Work and Pensions stated conclusively that

“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”

Conclusion

There is plenty of law that can provide guidance to Police Scotland in this area. There may not be much in the way of government guidance, and we can speculate why that might be the case, but there is enough primary legal authority, including extensive caselaw, to establish clearly that 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.

I understand why Police Scotland feel that they have not been given sufficient guidance in this area. The legal obligations that the police is under are complex and require a decision-maker to make their own decisions, applying general legislative standards to concrete situations. In a climate where every decision is scrutinised vociferously, that can be daunting. Nevertheless, that is the obligation that public bodies are under. They need to make decisions and they need to get them right.