Scottish Police Authority Chair’s report on Police Scotland recording policy
Introduction
At this week’s Scottish Police Authority Board meeting (26 September), Board Members will question the Chief Constable on Police Scotland’s recording policy on sex and gender. The current view of the SPA Chair is set out in the Chair’s report, in a section titled ‘Self-identification and recording of sex and gender’.
This blog provides a commentary on the report and draws out points that we think require further consideration. Each item in the Chair’s report is shown in a highlighted box, followed by our analysis.
The history of statements by Police Scotland about its strong attachment to using self-identification for recording the sex of all offenders, including sex offenders, is available here.
Note: This morning, the Deputy Convener of the Criminal Justice Committee Russell Findlay MSP has tweeted to say that Police Scotland has written to the Committee indicating a major policy U-turn on this issue. It is not possible to comment further until something more official is made available from Police Scotland.
SPA Chair’s report: Self-identification and recording of sex and gender
3.1 Police recording of sex and gender for statistical and service delivery purposes is a critical issue for both safeguarding individuals and promoting the public interest.
Comment
Sex is a key determinant of offending and victimisation. It is also a relevant protected characteristic under the Equality Act 2010. “Gender” is not a characteristic in that Act, and used with varying definitions by different people in practice, making it an unstable and ambiguous term. It is therefore unclear what the Chair (and Police Scotland) means by ‘gender’. To align with UK law, Police Scotland may wish to collect separate data on ‘gender reassignment’ as defined under the Equality Act 2010.
For the purposes of service delivery, under the Public Sector Equality Duty (PSED), Police Scotland is required to have due regard to the need to eliminate discrimination and advance equality of opportunity between men and women. As noted above, the relevant protected characteristics here are sex and gender reassignment.
In addition to incident recording, we would highlight the Police Scotland ‘Your Police’ survey. This annual survey is a key public confidence indicator for the single service. It is also used to develop the Annual Police Plan. The survey only asks respondents about their gender identity. Police Scotland has stated in terms that it is not interested in respondent sex.
As we don’t deliver services where the physical sex characteristics of a person would change how we deliver those services, e.g. health services, we do not need to know someone’s biological sex characteristics. What is important, is how they identify their gender.
Police Scotland Research & Insight Team, correspondence, 8 June 2021
3.2 For the vast majority of people (99.56% according to the 2021 census), their sex and gender identity are aligned. However, any police recording policy or self-identification approach must address the rare situation where an individual’s sex differs from their gender identity.
3.3 The current guidance of the Chief Statistician in Scotland states “… that for the vast majority of people sex and gender identity questions will provide the same result, for most issues one may want to measure, whether there is a question about sex or about gender identity, it will not skew the statistics when disaggregated by either concept.”
Comment
These observations are surprising. As noted above, criminal justice statistics differ significantly by sex, with much lower offending rates among women for most crimes. Because the female cohort is much smaller, it it much more vulnerable to error. It will take only a few males classified as women to significantly skew Criminal Proceedings statistics for some crime types. The quote from the Chief Statistician is a reference to aggregate populations, not sub-populations. Police Scotland made the same error when responded to our Parliamentary petition, failing to recognise that errors are likely to affect results specifically for the female cohort.
The submission to the Scottish Parliament Petitions Committee by Professor Alice Sullivan,1 who is also leading the UK Independent Review of Data, Statistics and Research on Sex and Gender states:
‘While sex is an important predictor of outcomes across the board, crime represents a particularly extreme example. The overwhelming majority of individuals convicted of violent crime are male, and females represent a tiny minority of those convicted of sexual assault of any kind. Rape is a male crime by definition, requiring non-consensual penetration with a penis. The vast majority of victims of rape are female.
It may be argued that, as the number of people who identify as other than their biological sex is small, so the data error generated by recording gender identity rather than sex for this group will also be small.
This argument may seem intuitive, but is in fact incorrect. Small numbers of misallocated cases can have a large effect on research findings in any sub-group analysis where one sex is dominant. Crime statistics in general, and sexual crime statistics in particular, provide a clear example of this.’
The SPA should be concerned about the accuracy of figures relating to women which Police Scotland produce. That a recent report found “deeply embedded outdated attitudes that contribute to a hostile environment towards women within the service, and likely affect policing in wider society” should make the SPA especially alert to corporate decisions which degrade the quality of public information on patterns of female offending.
3.4 The Authority’s approach to Police Scotland recording of sex and gender has sought 3 main areas of assurance:
– Police Scotland should support public confidence and the interests of justice by having a record of both sex and gender where relevant, necessary, and proportionate to do so.
– Police Scotland should support and maintain the formal accredited ‘official statistics’ status of Scotland’s recorded crime statistics by complying in full with the UK Statistic Authority’s Code of Practice for Statistics.
– Police Scotland should also comply with all relevant UK and Scottish law, policy or guidance.
Police Scotland’s submission to the Parliament’s Citizens Participation and Public Petitions Committee from March 2024 has again raised this issue, attracted criticism and questioned the appropriateness of the recording policy. The written evidence appeared to give sole primacy to self-identified gender and therefore contradicts our first area of assurance.
Comment
The recognition here that giving “sole primacy” to self-identified gender is a problem is welcome. However, it is hard to understand the import of the suggestion that different characteristics should only be recorded ‘where relevant’ and where this might not be necessary or proportionate.
A cursory look at Criminal Proceedings data shows sex-based differences in offending across all crime types. Again, the small proportion of female offenders makes this data particularly vulnerable to error. Even in categories of offending where women are more commonly found, they represent only a third or so of cases.
‘Males accounted for 83% of all convictions in 2021-22, a similar proportion as each year in the past 10 years (range 82% to 84%). More males than females were convicted in all crime and offence categories. Whilst females accounted for 17% of all convictions, they accounted for relatively higher proportions of convictions for the following crime types in 2021-22:
Wildlife offences, 35% or 50 of all convictions.
Shoplifting, 30% or 798 of all convictions;
Fraud, 29% or 68 of all convictions;
Other crimes against society, 30% or 21 of all convictions; and
Wildlife offences, 35% or 50 of all convictions
Using different recording standards for different offence types or circumstances, will lead to inconsistent data. This is unlikely to meet the standards required by the Code of Practice for Statistics. For example, the Code states, ‘Source data should be coherent across different levels of aggregation, consistent over time, and comparable between geographical areas, whenever possible’.
As noted above, ‘gender’ does not have a stable meaning and has no definition in law. Gender reassignment is the characteristic that should be collected, where holding that data is justified, under the Equality Act.
3.6 Raising this issue at our September Board meeting will provide an opportunity to seek public assurance and clarification that the approach and recording policy is both reasonable and lawful.
Comment
The SPA appears to be starting from the position that the present approach is not intrinsically questionable, and all that is required is “assurance” and “clarification” that the current approach is acceptable, rather than challenge and interrogation of what the service is doing.
Police Scotland is bound by international human rights requirements. Human rights expert Dr Claire Methven O’Brien, argues that in respect of sexual offences, Police Scotland recording policy is not compliant with these.
‘across the Scottish justice system, policy provides for the production of official data based on individuals’ self-identified gender rather than their biological sex. Although defended as necessary to align with human rights and equality concerns, this approach in fact contradicts international human rights requirements…
it is incorrect that legal compliance and ‘human rights’ demand gender self-identification in the generation of official data on rape and forms of violence against women, to the exclusion of data on sex. On the contrary, they preclude it.‘
The UN Special Rapporteur on Violence Against Women and Girls has also urged police forces to collect data on sex:
We have to diagnose the phenomena of violence against women for what it is, which is that it is perpetrated predominantly at the hands of males against females. If we start not registering males for females perpetrators, then that skews statistics and then leads to a misdiagnosis.
In relation to domestic law, Dr Michael Foran states that collecting data on biological sex is lawful and a failure to do so would engage the PSED:
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.
3.7 The Authority recognises that there are conflicting views regarding the relevance of the policy or approach. Given the recent discussion and debate, the Authority would welcome clarification from the Chief Constable that this approach and recording policy considers the impact and safeguards victims.
Comment
As the body with sole responsibility for holding Police Scotland to account, the SPA should be expected to go beyond noting “conflicting views” and be assessing, for itself, the weight it should give to different perspectives on the policy.
It should be considering the legal and statistical points above, as well as the impact of the policy on victims. The last of these is documented in several submissions to the Scottish Parliament Citizenship and Public Petitions Committee.
We urge the Chair and Board members to read these (for example here, here, and here). The full set of submissions can be accessed here.
In a legal commentary cited above, Dr Michael Foran states:
‘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.’
3.8 In February 2024, the UK Government commissioned an independent review which aims to identify obstacles to accurate data collection, research on sex and gender identity in public bodies and to set out best practice guidance on how to collect data. We welcome this piece of work and expect the Scottish Government to respond to this with its own views once it is published.
3.9 I am also aware that the Scottish Parliament’s Citizen Participation and Public Petitions Committee has been considering a public petition calling on the Scottish Parliament to urge the Scottish Government to require Police Scotland, the Crown Office and the Scottish Court Service to record the biological sex of people charged or convicted of rape or attempted rape. We await the outcome of this.
Comment
Police Scotland recording policy was first raised in the Scottish Parliament in March 2019.
Since then, the policy has continued to generate critical headlines, most recently, at First Minister’s Questions on 12 September 2024. As the Chair notes, the policy is the subject of a Scottish Parliament petition. This was lodged in June 2021 and remains under active consideration. There is also interest from the Criminal Justice Committee.
The Scottish Police Authority is responsible for holding Police Scotland to account. For the most part, it has been absent on this issue. On 30 September 2021 we wrote to Scottish Police Authority (SPA) raising concerns in relation to a range of policies based on gender self-identification principles, including police recording. We received a reply from the SPA Chair in December 2021, which stated:
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.
Conclusion
The lack of serious engagement or direction here, until very recently, does not reflect well on the Authority. Even now, the Authority is characterising its role as seeking reassurance from the Chief Constable, rather than stepping back to assess the situation independently for itself in detail, and then questioning the service based on that.
If the Chief Constable simply reassures the SPA on Thursday that there is nothing to see here, it is unclear on what grounds its members would feel able to do more than accept any such assurance at face value, based on the information put before them by the Chair. Yet it is clear that there is a great deal here deserving detailed challenge.
The substantial points we make above, about law, statistical effects and victim impact, should all be ones that the SPA identified for itself.
They are relevant to the understanding of female offending, impact on female victims, and compliance with legal obligations relating to women.
With the police service’s attitude towards women an issue of serious long-standing concern, the SPA ought to have been far more alert and active, long before now, and without needing repeated external pressure, to problems with the approach being taken here by Police Scotland.
If it is not persuaded that it should be concerned about the implications for women, it should at least have been moved to more engagement, and sooner, by the drawn-out reputational damage being done to the force by its handing of this issue.
Under the structure put in place by the Police and Fire Reform (Scotland) Act 2012, the effective oversight of the police service in Scotland relies on the SPA undertaking its role with curiosity and energy, without fear or favour, fully independent of the force and of government.
The Authority needs leadership that promotes a strong culture of challenge. This issue further illustrates that the architects of the 2012 Act may have been over-optimistic about such a culture emerging automatically, as a feature of the new structure. It is of course not the first one to do so.
As a final observation, this case also illustrates how the Scottish Parliament does not provide a reliable substitute for the SPA undertaking its challenge function.
The Parliament’s Citizen Participation and Public Petitions Committee has had a petition specifically on this issue before it for over three years. We understand that the petition received one of the largest numbers of signatures of any petition ever put before the Parliament. Even so, the Committee has never felt able either to call the police service to appear before it for questioning, or to refer the petition to another Committee.
This cannot be explained by government control: the Scottish Government has not had a majority on the Committee at any point, and the convenership has been in the hands of the Conservatives since 2021. Why the petition has stalled at the Committee to such an extent, only it can say.
It is clear, however, that the Parliament cannot be relied upon as a substitute for the SPA, in terms of increasing accountability and transparency.
The SPA’s ability to provide effective scrutiny and challenge of policing in Scotland is all-important. As a case study, this issue is not reassuring about how capable the SPA is currently fulfilling that role.
Note
- For full disclosure we are currently engaged to work on this project.