Guest blog: gender recognition, safeguarding, and the limitations of the Martin amendment

MBM introduction

At Stage 3 of the Gender Recognition Reform Scotland Bill, MSPs supported an amendment proposed by SNP MSP Gillian Martin, which requires the Chief Constable to notify the Registrar General of the application for, or granting of, a sexual harm prevention order, a sexual offences prevention order, or a sexual risk order,¹ that includes the condition that an individual may not apply for a GRC, or will include this condition if granted. The main amendment (and associated minor amendments) are shown in the Annex.

This guest blog looks at the Martin amendment in more detail, as well as other related moves intended to act as safeguards, and explains why their effect can be expected to be strictly limited. The blog is written by a retired criminal justice professional with a background in policing and regulatory work who wishes to remain anonymous

Background

Like many others, I’ve followed the progress of the Gender Recognition Reform (Scotland) Bill as it’s made its way through Parliament. I’ve waded through the consultation documents, read the press reports, listened to the discussions and debates.  

And I’ve watched as almost every safeguarding concern was dismissed as being without evidence and invalid.

Safeguarding and public safety go hand in hand and should lie at the heart of everything that a government does, whether it’s building a road or a hospital, providing or funding a service, setting policy or changing the law.  If a government achieves what it sets out to achieve but, in doing so, makes the public less safe, that same public has a right to expect that its government will identify and acknowledge any risks and take steps to mitigate against them. 

When safeguards are put in place, however, they also have to be enforceable and capable of being policed, otherwise they’re meaningless.

So why should safeguarding and public safety be a concern with this particular Bill?

Risks to public safety

When the Bill was introduced, its stated aim was to to improve and simplify the application process for obtaining a Gender Recognition Certificate (GRC) by making it “less lengthy and intrusive”.  In achieving that aim, however, it also fundamentally changed the criteria for applying for a GRC.  It provided for anyone aged 16 years or over, born or normally resident in Scotland, to change their legal gender solely on the basis of a statutory declaration that they had lived in their ‘acquired gender’ for at least three months prior to application and intended to do so permanently.  

The practical effect of the Bill, as introduced, would have been to put in place a system of self-identification of gender in law without a single enforceable safeguard.  Any male, even predatory and abusive males, would have been able to change their legal gender simply by saying they were a woman. 

Of course, predatory and abusive men don’t need access to a GRC in order to do harm.  But self-identification of gender is already making it difficult, particularly for women, to give voice to concerns about behaviour.  Possession of a GRC – legal recognition of gender – can only compound those difficulties, especially when it comes to challenging behaviour and deciding whether to report concerns to the police or to legitimately deny access to places and services traditionally reserved for women.  

In particular, where those who have already been identified as a risk to the public and whose behaviour requires to be policed (such as registered sex offenders), why make the opportunity to do harm easier?

The risks were obvious.  This was only one of many concerns about the Bill, but it impacts on public safety and should have been resolved when the Bill was being drafted.  We know that when it comes to violent crimes, particularly crimes of sexual violence, biological sex matters.  Data on sex has been gathered for years and it shows that males represent a risk to the public in ways that females do not:

• Over 80% of all domestic violence/abuse reported to the police is committed by males
• Over 90% of all murders and homicides are committed by males
• 95% of the prison population comprises males
• 98% of all sexual offences are committed by males

And over 99% of all registered sex offenders are males

Instead, when the Bill was introduced to Parliament on 3 March 2022  Shona Robison, MSP, made the following statement:

“There is no evidence that predatory and abusive men have ever had to pretend to be anything else to carry out abusive and predatory behaviour.”

And that statement was echoed throughout the parliamentary process.  If there’s one thing predatory and abusive men are particularly accomplished at, however, it’s pretending to be what they are not.  It is breathtakingly naive, therefore, to ask anyone to believe that predatory and abusive men do not and will not exploit any opportunity to do harm, including fraudulently claiming to be women in order to gain access to places where people, especially women and children, are vulnerable or may have let their guard down in the belief that they are safe.  

It’s also completely irresponsible to dismiss a risk simply because it might be a rare occurrence.  Consequences matter.  If I choose to go skydiving, the chances of my parachute failing are virtually nil.  Given the consequences of a failure, however, only an abject fool would use that as an argument for ignoring parachute safety.

My only hope was that meaningful scrutiny and debate through the Parliamentary process would result in amendments that would address widespread, sincerely-held and justified concerns.  Finally, as the Bill made its way through Parliament, government appeared to pay attention and two changes were made.

So what are those changes?

Safeguards in the Bill

Firstly, regulations are to be introduced in Scotland which will amend the sex offender notification requirements (SONR) so that registered sex offenders (RSOs) will be required to notify the police with details if they apply for a GRC. This change has yet to happen but should be in place before the Bill becomes law.

Secondly, an amendment was agreed which recognised the possibility of ‘fraudulent’ applications being made. This amendment will allow ‘a person who has an interest in a gender recognition certificate’ to apply to the Sheriff for revocation of a certificate or confirmatory certificate if it’s believed that the application was fraudulent.  

Putting the two changes together, this means that where an offender notifies the police that they’re applying for a GRC, Police Scotland, as ‘a person who has an interest’, will be able to apply to the Sheriff to have a registered sex offender’s certificate revoked if they believe the application is fraudulent. Alternatively, the Registrar General for Scotland, if informed by Police Scotland, will be able to reject a GRC application following a successful application to the Sheriff.

Problem solved?

It appears so. RSOs are managed under the Multi Agency Public Protection Arrangements, commonly known as MAPPA. According to published MAPPA Guidance, under the SONR, RSOs are already required to notify the police in person within three days of conviction and must provide details such as their name, address, date of birth, passport details, credit card, and bank details and national insurance number.  They also have to notify the police of any changes. And according to data from the National MAPPA Annual Report (2021-22), it appears that the vast majority (around 94%) comply. So why wouldn’t RSOs also comply with the requirement to notify the police of a GRC application?

It’s quite simple.  When it comes to the SONR, if offenders fail to comply, they’d quickly be caught out. There’s a safeguard, because (again according to MAPPA Guidance) the Court must also provide the police with a copy of both the certificate of conviction and the notice of requirement to register. In addition, the management of offenders under MAPPA should also identify offenders who fail to notify changes to their details. If an RSO fails to comply with the current SONR, therefore, the police will know.

If an RSO decides to apply for a GRC, however, the police won’t know unless the RSO tells them. That begs an obvious question – If an RSO’s intention is to abuse the application process and fraudulently apply for a GRC, what is the likelihood that they’ll forewarn the police by giving them notice of their application?  

But there’s another amendment, as proposed by Gillian Martin MSP. This one should allow applications to be rejected on the basis of ‘risk’. Surely that will help?

The preventative order problem

Well it might, if it weren’t for the fact that it, too, is reliant on an RSO notifying the police that they’ve applied for a GRC. Even if that weren’t the case, there’s another problem with this amendment.

It relies on using certain existing preventative orders to prevent RSOs from obtaining a GRC if they’re deemed to be of an unacceptable risk.  And these orders weren’t designed for that purpose.

So what are preventative orders and what are they for?

According to MAPPA Guidance, preventative orders are designed to “minimise the risk of sexual harm to the public from certain individuals”. They do this by imposing conditions to either prohibit them from doing, or require them to do, certain things set out in the order. Examples given (depending on the type of order) include prohibiting someone from undertaking certain forms of employment involving working with children, or prohibiting certain activities such as visiting chat rooms on the internet, or requiring them to inform the police if people under the age of 18 are resident in their house.

Again depending on the type of order, they can be granted at the time an individual appears in court, or by a sheriff on application by the chief constable (for example, if an RSO’s behaviour changes and an order is needed at a later date to manage the risks and protect the public).

How will prevention orders prevent a GRC application?

It’s not clear how the process will operate in practice, but it appears that if an RSO (having told the police they’re applying for a GRC) is considered too high risk to allow a GRC to be granted, then the chief constable should apply for an order with a condition to prevent the application. The chief constable must then notify the Registrar General for Scotland, and the Registrar General must take no further action on the GRC application unless told otherwise (for example, if subsequently notified that the preventative order hasn’t been granted).

However, preventative orders were designed to manage behaviour in order to reduce risk of sexual harm to the public.  Any prohibitions and obligations need to be justified and evidenced on that basis.  Regardless of an offender’s risk level under MAPPA, the criteria set out in law still have to be met before a preventative order can be granted.

As of 31 March 2022, only 13% of all RSOs managed in the community were subject to one of the relevant orders (data collated from regional MAPPA annual reports 2021-22). In other words, 87% of RSOs living in the community were being managed without the need for a preventative order. Even if an offender within that 87% is assessed as ‘high risk’ under MAPPA, if a preventative order can’t be justified in order to protect the public from risk of sexual harm, how likely is it that a preventative order would be justified in respect of any of these offenders to prevent a GRC being granted?  

Conclusion

So what does all of this mean?

Both amendments are limited and will affect only a small number of RSOs. The first amendment deals only with those applications believed to be fraudulent. The second attempts to deal with ‘risk’ but relies on the use of existing preventative orders which, if they can’t be justified on an offender’s existing behaviour and the risk of sexual harm to the public, won’t be granted.  

Critically, however, in both cases it appears that the amendments rely on an RSO first telling the police that they’ve that applied for a GRC. And for those most intent on abusing the GRC process in order to do harm, there’s little incentive to comply.

Note

¹ The amendment relating to sexual risk orders was proposed by the Cabinet Secretary Shona Robison MSP (see Annex).

Annex: amendments 40, 40 a-e, 41, 42