Police Scotland policy on recording rape: an exercise in institutional sexism and misogyny

it is right for me, the right thing for me to do as Chief Constable, to clearly state that institutional racism, sexism, misogyny and discrimination exist…

we know, I know, people from different backgrounds or with different requirements don’t always get the service that is their right… When an organisation doesn’t have all the necessary policies, processes, practices and systems in place to ensure that doesn’t happen, it’s an institutional matter.

Sir Iain Livingstone, Chief Constable of Police Scotland, 25 May 2023

On 2 June 2021 we lodged a petition with the Scottish Parliament’s Citizen Participation and Public Petitions Committee, ‘calling on the Scottish Parliament to urge the Scottish Government to require Police Scotland, the Crown Office and the Scottish Court Service to record accurately the sex of people charged with or convicted of rape or attempted rape’. The petition is here. It received nearly 13,000 signatures to its original deadline. The Committee has reopened the petition for signing, due to a recent general policy change.

Background

Police Scotland currently allow rape and attempted rape to be recorded based on a person’s self-declared gender identity. As Police Scotland explain, this means that:

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.

Police Scotland, 1 April 2021

Committee consideration: who is responsible for decisions here?

The Committee first considered the petition on 6 October 2021 and it remains under active consideration. The Committee has repeatedly sought to establish which body is responsible for recording in this area. This includes requests to Police Scotland, Scottish Government, Scottish Courts and Tribunals Service, Crown Office and Prosecution Service (COPFS), and most recently, the Scottish Crime Recording Board.

Most responses to the Committee, including the Scottish Government, state that Police Scotland is responsible. Annex A below shows relevant extracts of evidence to the Committee from the respective bodies, and other applicable sources.

When previously asked about the policy by the Scottish Parliament Justice Committee, Deputy Chief Constable Malcolm Graham stated Police Scotland had been awaiting guidance from the Chief Statistician, but had not found the published guidance particularly helpful.

The Scottish Government published their Data Collection and Publication Guidance: Sex, Gender, and Trans Status on 22 September 2021. While this considered many factors in how such information should be gathered in a consistent and respectful manner, it does not provide answers to a number of challenges in how organisations should record to meet recording standards.

DCC Graham, 28 January 2022

DCC Graham also appeared to suggest that Police Scotland policy would depend on the direction of gender recognition reform:

Further direction and guidance from Scottish Government’s Chief Statistician is awaited, due to Scottish Government’s decision to postpone its proposals to reform the Gender Recognition Act 2004, pending further consultation.

DCC Graham, 28 January 2022

In response to a recent Parliamentary Question, the Scottish Government made clear it has no intention to require Police Scotland to accurately record the sex of those charged with rape or attempted rape.

From this, we can conclude Ministers believe the current recording policy is ethical, with no risks to data reliability. As we have repeatedly argued, we do not think this position is tenable in either respect. It also carries reputational risks. Double rapist Adam Graham/Isla Bryson was initially charged as a male, and only later recorded by the authorities as a woman while awaiting trial – which led to him being initially housed in a women’s prison. Given the extreme damage inflicted on the government by applying the same principle as our petition raises, it is difficult to understand the intransigence of Minsters here.

Latest Police Scotland submission

In April 2023 the Petitions Committee asked Police Scotland for further information in two areas:  

The process for updating the recording policy, whether this included wider consultation on the policy change, and if so, with whom.

any reflections or update Police Scotland may have on the previous response provided to the Committee, specifically around the statement: “there are no known cases where a biological male has been charged with the physical crime of rape and has self-identified as a woman”.

Public Petitions Committee, 18 April 2023

The Police Scotland response (30 May 2023) ignores the first request and instead focuses on its current policy review. This omission is surprising, given DCC Graham has previously told the Justice Committee about the process in some detail:  

In 2019, to prepare for proposed reform of the Gender Recognition Act, Safer Communities Equality and Diversity team considered a draft Police Scotland policy on Gender Identification and assessed that a Police Scotland position statement was required.

A position statement (below) was developed by Police Scotland. This was approved by the Senior Leadership Board in November 2019 for use in response to enquiries while Police Scotland awaited direction and guidance from Scottish Government on the identification and recording of sex and/or gender, which would emerge from a review by the Scottish Government’s Chief Statistician.

DCC Graham, 28 January 2022

The position statement, which remains current policy (subject to the ongoing review) is:

The sex/gender identification of individuals who come into contact with the police will be based on how they present or how they self-declare, which is consistent with the values of the organisation.

DCC Graham, 28 January 2022

In response to the request from the Petitions Committee for ‘any reflections or update’ on its previous statetment that ‘there are no known cases where a biological male has been charged with the physical crime of rape and has self-identified as a woman’, Police Scotland set out a number of tangential points on process. For example, the response explained:  

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

Police Scotland, 30 May 2023

There is no indication of what ‘presents’ means in this context, although typically the term simply refers to gender stereotypes. For example, the NHS Gender Identity Development Service (GIDS) state:

people usually try to ‘pass’ through using a mixture of physical gender cues (for example, hair style or clothing) and ‘stereotypical’ behaviours that tend to be associated with a particular gender.

NHS Gender Identity Development Service: glossary

In practice, this means that recording for those coming into contact with the police for the first time (in relation to sex) is left dependent on the extent to which any individual officer believes a person conforms to ‘feminine’ ideals. We think that this is statistically incoherent and sexist.

In a further departure from biological reality, Police Scotland also confirmed that if a person already known to the police as male acquires a full gender recognition certificate, their criminal history record will be changed to female:

If the offender already has a CHS record where they are recorded as male, this will only be changed to female if the individual has a full gender recognition certificate [GRC] as described above.

Police Scotland, 30 May 2023, emphasis added

Again, this is statistically incoherent and likely to undermine data reliability as well as any related analysis. Should Scotland introduce legal gender recognition based on self-declaration, these risks will increase, by dint of a larger GRC-holding population.

What next for Police Scotland?

Whilst statistically unstable and, at best, ethically questionable, the current Police Scotland approach is not set in stone. As noted above, Police Scotland is reviewing its policy, and if approved, will be subject to wider consultation.

Police Scotland is currently undertaking a review of recording policy and I can confirm that this is progressing through our internal governance processes. … the outcome of the review will be presented at our next Professionalism, Strategy & Engagement Management Board (PSEMB). If approved, it will be subject to wider consultation and engagement with relevant stakeholders, with feedback provided to the PSEMB for consideration and progression to the Senior Leadership Board.

Police Scotland, 30 May 2023

It is difficult to predict the outcome of the review. At a corporate level, Police Scotland appears wedded to gender identity ideology. For example, the EDI Mainstreaming and Equality Outcomes Progress Report 2021-2023 refers to an LGBT+ ‘allies pledge’:

We have… Established an LGBT+ Champions Group which have refreshed and re-launched the LGBT Allies Network and supported the pilot of the LGBT Youth Charter in Edinburgh division. An induction pack for allies has been created which includes a newly developed allies pledge, a statement of intent and an ally’s toolkit.

Police Scotland, 2023: 48

And in a previous submission to the Committee, Police Scotland indicated that it ‘recognise[s] that a person may not feel it appropriate for them to be assigned binary options and the situation will be reviewed as we roll out any new IT platforms’ (22 November 2021). As argued previously, it is difficult to square this thinking with the hard reality of sex-based offending that frontline officers deal with on a regular basis.

The approaches taken in two recent cases also starkly illustrate a police service that treats the wishes of violent male offenders as paramount. While double rapist Adam Graham/Isla Bryson was initially arrested and recorded as male, he was later allowed to be processed in court as a woman. Andrew Miller (charged with abduction, sexual assault and other offences), who appears to have been well known locally to be living under a woman’s name (Amy George) and to have dressed ‘as a woman’ for longer, was recorded all the way from arrest onwards as male – but only because he chose to be.

Rather than reflect on these cases, as per the Committee’s request, the latest Police Scotland submission provided technical recording points that raised more questions than they answered, and rehashed data from an earlier submission that only goes up to 2020. Police Scotland did not address the statistical or ethical implications of either the Bryson or Miller cases for their policies. Nor did they acknowledge it was Miller’s own decision, not their stereotype-based policies, that led to his being recorded as a male charged and convicted of sexual assault.

As we have previously argued, in relation to Police Scotland’s assertion that ‘there are no known cases where a biological male has been charged with the physical crime of rape and has self-identified as a woman’:

the Police Scotland statement remains technically correct since Bryson declared a trans identity after being charged. Nonetheless, the case reveals the inherent instability in police recording practices and statistical outputs; had Bryson claimed a trans identity ahead of being charged his offences, or committed any further offences after changing identity, these would have been recorded as committed by a women. It is, or should be, obvious that this is a misguided approach to data collection.

MBM, 28 January 2023, emphasis added.

On the other hand, the political consequences of the sort of policies that allowed Bryson to be treated as a woman, and would have permitted the same for Miller had he wanted, have recently been thrown into sharp relief. As a reputationally cautious organisation, Police Scotland may want to take a less partisan position, and distance itself from the contested position encouraged by the Sottish Government. That Police Scotland only introduced its recording policy to future-proof for the hugely divisive Gender Recognition Reform (Scotland) Bill, which is currently in legal limbo, may also give the service pause for thought.

Institutional sexism and misogyny

Recently, Chief Constable Iain Livingstone stated that Police Scotland was institutionally sexist and misogynist. We think it is difficult to think of a more sexist or misogynistic policy than one that prioritises the feelings of men charged with rape or attempted rape over predominantly female victims. If Police Scotland wishes to address the observations made by the Chief Constable, this is a good place to start.

Meanwhile, we are grateful to the Committee for pursuing this point with such determination over the past 18 months. We hope that they will be able to use future witness sessions to explore further the justification for failing to record any rapist as male in police systems or indeed any other part of the criminal justice system.

Annex 1. Selected organisational response to the Petitions Committee, and other relevant sources

Organisation	Comment
Scottish Government 23 September 2021	‘The [Criminal History System]  is used and maintained by Police Scotland. It is, therefore, for Police Scotland to determine how the sex of people charged or convicted of rape or attempted rape is recorded on the CHS.’
Scottish Courts and Tribunals Service 2 November 2021	‘In criminal proceedings the SCTS receives information on the sex of an accused from a data file sent electronically by the Crown Office and Procurator Fiscal Service (with information which originates from Police Scotland).’
Crown Office and Procurator Fiscal Service 4 November 2021	‘As COPFS use data that is provided by the police it is a matter for Police Scotland to confirm that data about accused people, including their sex, is recorded accurately.’
Police Scotland 22 November 2021	‘It may be helpful for you to be aware that in light of recent guidance from the Scottish Government’s Chief Statistician, Assistant Chief Constable Gary Ritchie has instructed Police Scotland’s Data Governance Board to review our internal policies and recording procedures. It should also be noted, however, that Police Scotland still uses a number of legacy IT systems and we are therefore limited in our ability to record gender as anything other than the binary option of male or female. We recognise that a person may not feel it appropriate for them to be assigned binary options and the situation will be reviewed as we roll out any new IT platforms.’
Equality and Human Rights Commission Scotland 17 March 2022	‘It is for all bodies collecting data to ensure they do so lawfully. Any public body collecting data, including Police Scotland, should have a clear and transparent policy relating to the data they collect and the use they put it to.’
Crown Office and Procurator Fiscal Service 20 October 2022	‘The sex of an accused person forms part of the personal data that COPFS receives from reporting agencies, including the Police Service of Scotland. This will include those accused persons who have been charged with rape or attempted rape. Sex is a protected characteristic in terms of the Equalities Act 2010.’
Scottish Government 25 October 2022	‘it is a matter for Police Scotland to determine how the sex of people charged or convicted of rape or attempted rape is recorded within their operational databases. Similarly, the recording practices of the Crown Office and Procurator Fiscal Service and the Scottish Courts and Tribunals Service are operational matters for those bodies. Any legal implications of the two judgments of the Inner House of the Court of Session on these operational matters would be for Police Scotland or the other bodies mentioned to consider and to obtain their own legal advice on, if it is appropriate to do so. You also ask for further information on the Chief Statistician’s guidance on Sex, Gender Identity, Trans Status – Data Collection and Publication. The final guidance was published on 22 September 2021 and is available online. There are no current plans to revise this guidance.’
Police Scotland 3 November 2022	‘…officers from Police Scotland do not routinely ask the gender or sex of people with whom they interact and the records created on our IT systems will be based on how the person presents to officers at the time of engagement. This recording practise is applicable for all crimes and offences and is not limited or exclusive to crimes of a sexual nature.’
Scottish Crime Recording Board 16 May 2023	‘I can confirm that the SCRB and its membership has no role or responsibility in requiring Police Scotland or any other body to record the sex of people charged or convicted of crime, including rape, in a certain way and that the Scottish Government position remains that as outlined to the Committee in the response of the previous Justice Secretary in October 2022.’
Police Scotland 30 May 2023	‘As you are aware, Police Scotland is currently undertaking a review of recording policy and I can confirm that this is progressing through our internal governance processes. … the outcome of the review will be presented at our next Professionalism, Strategy & Engagement Management Board (PSEMB). If approved, it will be subject to wider consultation and engagement with relevant stakeholders, with feedback provided to the PSEMB for consideration and progression to the Senior Leadership Board.’
Additional relevant sources
Scottish Government September 2021	‘it may be necessary and proportionate to require a person to answer a question on their biological sex, but this would be on an individual basis for a very specific purpose, and it would be up to public bodies who need this data to develop the best approach to do this. The most likely scenarios where data on biological sex is required would be on a case-by-case basis in a medical context; in a criminal context where a serious sexual offence is being investigated.’ (Chief Statistician’s guidance on Sex, Gender Identity, Trans Status – Data Collection and Publication)
Scottish Police Authority 17 December 2021	‘The Authority takes the evidence based view that Police Scotland’s current recording practice makes every effort to comply with the law, the guidance from the Chief Statistician for public bodies on the collection of data on sex and gender (September 2021) and the European Code of Practice.   This is an area of significant public interest and Assistant Chief Constable Gary Ritchie has asked Police Scotland’s Data Governance Board to review internal policies and recording procedures.’ (SPA Chair Martyn Evans, correspondence)
Police Scotland 15 December 2021: col. 21	‘At the moment, it is a hypothetical debate and, if that were to happen, we would look carefully at each set of circumstances. We are also awaiting Scottish Government guidance on that complex issue. Our desire is to ensure that the rights and equality interests of any individual, whether they be from the trans community or whether we are talking about the long and hard-fought-for rights of women, are recognised, and I believe that that can be done in a way that is not mutually exclusive.’ (DCC Malcom Graham, oral evidence to Scottish Parliament)
Scottish Government 15 December 2021: col. 30	‘In many cases, the police will do the data collection on the issue, although you are right to  suggest that the Government will have an interest in and view on that. It is important that the police take a human rights approach; that the rights of everybody involved are, as DCC Graham said, observed, respected and upheld; and that the safety of everybody is upheld, too. That is the right approach for the police to take, and I am therefore very supportive of DCC Graham’s comments.’ (Justice Secretary, Keith Browne MSP, oral evidence to Scottish Parliament)
Scottish Government 22 May 2023	‘We have no plans to introduce such a requirement [to record the sex of those charged with rape or attempted rape]. It is a matter for those relevant public bodies collecting information on sex to establish the best approach in their individual institutional settings. In the case of those committing crime, this approach will rightly be shaped by how Police Scotland, the Crown Office and Procurator Fiscal Service and Scottish Courts and Tribunals Service operationalise both the wider legal context (where for example an arrested person is not legally required to answer questions on their sex or gender) and any associated guidance on collecting data about sex and gender.’ (Parliamentary Question. Reference: S6W-16640)