At Stage 2 of the Gender Recognition Reform (Scotland) Bill, the Scottish Government accepted that attaching a criminal offence to making a false declaration is not a watertight deterrent against abuse of the process. The government has introduced further limited measures, intended to reduce the risk of the process being misused. The government has also made large claims about these measures, most notably in a communication to the UK Government responding to the intervention of the UN Special Rapporteur on Violence Against Women (UNSRVAW).
This blog looks at these measures and discusses their limitations.
Scottish Government claims
In responding to the intervention by the UNSRVAW the Cabinet Secretary said the following (measures either announced or added at Stage 2 that are relevant to safeguarding against abusive applicants are emphasised in bold):
‘The process continues to be a serious undertaking with robust safeguards in place which have been debated and reinforced by amendments at Stage 2. These include a new criminal offence for making a false application, the creation of a statutory aggravator for a fraudulent application connected with another offence, and additional requirements for applicants aged 16 and 17 to live in their acquired gender for six rather than three months and to confirm that they have discussed the implications of their application with someone whose role involves giving guidance, support or advice to young people, or someone aged over 18 who knows them personally.
We also intend to amend the Sex Offender Notification Requirements so that those on the register are required to notify the police about an application for a gender recognition certificate. This will mean the police have additional information to help identify an individual and inform their management. It will also enable a route to prevent someone on the sex offenders register from fraudulently obtaining a GRC. Provision added to the Bill by at Stage 2 allows for the Registrar General to apply to the sheriff to reject an application before the certificate has been issued on those same grounds, and if police had concerns following a sex offender notification they could contact the Registrar General.
As noted above, the Bill also makes provision for a person who has an interest in aCabinet Secretary for Social Justice, Housing and Local Government, 29 November 2022
GRC to apply to the sheriff to revoke a certificate on the ground that the application
was fraudulent, that the applicant was incapable of understanding the effect of it, or
that the applicant was incapable of validly making the application.’
The new measures
a) Applications from sex offenders
Adding an application for a GRC obtainable through self-declaration to the reporting requirements already placed on those on the sex offenders register (SOR) has been proposed surprisingly late in a multi-year process.
b) Fraudulent applications
New powers for the Register General of Scotland (RGS) have been added in section 8PA (see page 13 here). This allows the Registrar General to apply to the court for an order to reject an application on the grounds it is “fraudulent”. This will be determined by the court “on a balance of probabilities.” Surprisingly, the Bill originally contained no mechanism for rejecting applications on this basis, although as the quote above shows it did provide a mechanism for a GRC already issued to be revoked by a court, on the application of “a person of interest” (section 8S).
As the response quoted above describes, these proposals allow the RGS to act on an alert from the police, where they believe an application from a person on the sex offenders register is fraudulent. Tip offs from other sources would also be possible under section 8PA, but the RGS is not expected to investigate applications on his own initiative.
This new package therefore appears intended to cover cases where a person does not try to conceal the application and all these criteria are also met:
- is currently in Scotland and on the Scottish Sex Offenders Register (the Government has not clarified how this will work when people cross the border in either direction: the MAPPA systems are separate in each nation)
- has already produced sufficient convincing identifying material to be able to make a statutory declaration (except in cases of malpractice by the person taking the declaration)
- is prepared to make a false declaration about living in the acquired gender
- the police believe the application is fraudulent
- the RGS is persuaded by the police that it is likely to be fraudulent
- the courts agree with the police and RGS
Critically, no further definition is given of fraudulent. The government rejected an amendment that would have required this to be further defined.
Assuming anyone who has applied under a false identity is unlikely to involve the police, the only remaining basis for the police identifying fraud would be (a) a confession, direct or witnessed, or (b) an assessment that the person had not “lived in the acquired gender” for three months.
However, in her letter responding to the UNSRVAW intervention, the Cabinet Secretary adds:
What is not proposed is for the Registrar General to make assessments and judgements based on evidence of gender identity provided by applicants.Cabinet Secretary for Social Justice, Housing and Local Government, 29 November 2022
The same is presumably intended to hold for the police (and courts?).
These cases therefore only appear enforceable based on an admission of fraudulent intent by the applicant. This would be consistent with this being the only concrete example of fraud the government has previously been able to provide. In a letter sent to us by the Family Law Unit of the Scottish Government in February 2020, it was stated that:
There are a variety of scenarios which might indicate that a false declaration has been made. These include: Where evidence is provided by a spouse or a civil partner that a false declaration has been made. Where the applicant boasts of having made a false declaration.Scottish Government Family Law correspondence, 21 February 2020
The Scottish Government has conceded there is no objective way to define living in the acquired gender, beyond the production of documentary evidence of use of a new name (although no name change is required) and an M/F marker on any relevant documents such as a passport (if the person has one). When pressed in committee on how ‘living in the acquired gender’ could be defined, and so falsified, given that the Scottish government believes on principle it is self-defined, the Minister was noticeably uncomfortable. The government rejected amendments intended to provide greater clarity here.
c) Additional penalties
A further addition to the Bill mentioned in the response above is a new additional penalty (an “aggravator”) if an offence is committed and “the circumstances of the offence are proven to be connected to the fact that the person has fraudulently obtained a gender recognition certificate.” This is new section 22B.
There may be some occasions where a person obtains access to a single sex space explicitly because they have a GRC: prison policy in England weights a GRC in this way, for example. This provision will be no use however in any situation where providers have simply ceased trying to provide a single-sex service, out of confusion over the law compounded by concern about the increased risk of litigation from a much larger GRC holding population, and where offenders with or without GRCs have taken advantage of that.
Scottish Government research indicates that effective deterrence hinges principally on the certainty of being caught. The more a person assumes it will be hard to prove fraudulence (see above), the less of a deterrent effect this will have.
Effects of the new measures
The protective effects of the new measures will be minimal at best. It is likely that some, possibly most, applications from those on the SOR for a GRC by self-declaration will be accepted, given it is not clear on what basis an application for GRC would be rejected as fraudulent. Evidence of past dishonest behaviour (such as this or this) would not of itself be any barrier under the Bill.
If a person on the SOR tells the police about their application, the MAPPA arrangements should still in theory provide some oversight of those granted a GRC. However, a person acquiring a GRC will make these processes harder to operate, given they will then fall with section 22 of the GRA creating criminal penalties for disclosing information about a GRC holder’s previous identity. That can be expected to constrain information sharing.
The exceptions to s22 are limited and do not include a general one for matters to do with managing offenders. For that reason, in late 2021 the UK Government brought forward a statutory instrument so that it is no longer an offence in England and Wales to disclose information about a person’s GRC status for the purpose of the management of offenders. The Scottish Government has not done this, however.
The Scottish Government undertook to look further at section 22 in 2019, but has not done so. It continues to put this off. An official explained to the Committee on 28 June: “it is probably true that we are generally open to conversations about whether additional exceptions are needed in section 22. However, our view is that this bill would probably not be the best way to do that, given that it is focused on the process for obtaining a GRC, not on the effect of a GRC.”
What would a stronger approach look like?
The added measure for sex offenders will not cover those with histories of financial fraud, or other types of offending history that might make a new, protected identity attractive.
Nor will it include those who have committed sexual offences but for whatever reason were not placed on the register; are no longer on the register; decide to breach the reporting requirement; (possibly) are on the SOR for England and Wales who become ordinarily resident in Scotland or were born in Scotland; or (possibly) were born in Scotland and were on the SOR here but now live elsewhere in the UK.
Amendments rejected by the government at Stage 2 included:
- preventing a person obtaining a GRC while on the sex offenders register;
- requiring any GRC applicant to disclose convictions, either in general, or for certain crimes only (sexual offences, violent offences, domestic abuse and fraud), and whether they are on the centrally held list of those who deemed unsuitable to work with children;
- limiting GRC access to applicants with certain histories only to those able to provide evidence of gender dysphoria;
- preventing a person from applying while charged with any crimes serious enough to merit a jury trial;
- requiring the RGS to inform Police Scotland whenever anyone with a criminal record is granted a GRC.
The Minister’s response to the proposed restrictions focussed largely on potential breaches of the European Convention on Human Rights, although this was only briefly explained.
To strengthen the Bill, the reliance on self-reporting could be replaced by a check of all applications against the SOR during the three-month reflection period. An approach with an even broader reach would be a criminal record check. The RGS would then need to decide whether to act on the information provided, perhaps by reporting to the police a possible case of fraudulent application, which could then be investigated under the offence attached to that.
Missing from the discussion has been the idea of any sort of public interest test. This would remove the need to show intent to defraud, but could, for example, allow a court to be asked to consider in extreme cases if, in the interest of public protection, any stronger oversight should be applied before granting a person the specific legal rights conferred by a GRC, including a change of sex in law for most purposes, a new birth certificate and stronger privacy rights.
The changes announced at Stage 2 very modestly increase the level of safeguarding against abuse of the process. In doing so they also draw attention to the very limited range of circumstances covered, a reliance on self-reporting, the difficulty of proving “fraud”, the implications of cross-border movement, and the unaddressed issues around extending the privacy protections to those subject to offender management processes.
Further, they draw attention to how much the policy-making process has been premised – until this late point – on the assumption that a criminal penalty for a false declaration alone was a sufficient safeguard upfront. That is why the government is, only now, identifying as necessary some very basic additions to the process. Ironically, therefore, the last-minute changes which the Scottish Government argues show they have addressed concerns, in fact draw attention to how much this legislation has been developed, over almost six years, through a process that failed to systematically assess the risk of abuse, and its mitigation.