Transitioning at work: How Police Scotland gave cross-dressers an access-all-areas pass
On 26 September Police Scotland’s Chief Constable Jo Farrell told the Scottish Police Authority (SPA) that the single service would undertake a review of its policies based on gender self-identification principles, to be led by Assistant Chief Constable Catriona Paton.
For Police Scotland, controversy in this area has mostly focused on its incident recording policy. As shown in the post below, this explicitly provided for rape suspects to be recorded as women.
This is not, however, the only area that has seen the quiet adoption of gender self-identification principles. As noted at the SPA Board meeting, its custody policy required female officers to search trans-identified men (now under review).
The same principles are also reflected in Police Scotland’s Transitioning at Work (TaW) policy, which we focus on here. The blog looks at the political backdrop to the policy, shows how Police Scotland managers dismissed internal criticism, and discusses ongoing risks to the single service. In addition to the substantive policy, the analysis draws on an Equality and Human Rights Impact Assessment (EqHRIA) undertaken by the owning department, People and Development (P&D) in 2019.
The political backdrop
First published in 2014, the introduction of Police Scotland’s TaW policy coincided with that of the Scottish Prison Service’s (SPS) now defunct Gender Identity and Gender Reassignment Policy. For the SPS, its policy would later allow the placement of double-rapist Isla Bryson/Adam Graham in a woman’s prison. For the Scottish Government, it would contribute to the resignation of First Minister Nicola Sturgeon. Developed without wider consultation, at the time both policies flew under the radar.
By 2017 the Scottish Government was vigorously pursuing putting gender self-identification principles into law through reform of the Gender Recognition Act, launching its first consultation in November that year.
Aligned with this ambition, in 2019 Police Scotland revised its TaW policy, to cover anyone asserting a trans identity. The EqHRIA undertaken at this point explained:
The review of this SOP has expanded the remit of the document to support all transgender people and not just those who propose or have undergone gender reassignment and now addresses the wider social issues as opposed to the minimum legal requirements.
The EqHRIA also acknowledged input from lobby groups, referring to Stonewall Scotland training, the development of provisions of searching for trans identified staff in conjunction with Scottish Trans, and noting that the glossary was taken from the Equality Network website.
Recent training provided by Stonewall Scotland has indicated that in fact Trans is the preferred term as this is deemed to be much more inclusive and encapsulates transgender and transsexual people.
Around this time, Police Scotland also drew up its position statement on incident recording, as recently backtracked on. Similarly aligned with Scottish Government ambitions for gender recognition reform, this stated:
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.
What does the Transitioning at Work policy say?
At the time of writing, the 2019 TaW policy remains in place. The policy is based on self-identification principles and states in terms that Police Scotland will ‘go beyond the requirements of the Equality Act’. The opening section explains (emphases in bullet points added):
Key information
- Transgender or trans is a word used to describe a wide range of people whose gender identity or the way they express their gender is different from the gender they were assigned at birth.
- This includes transsexual people (women or men), cross-dressing people, androgynous or non-binary people and others.
- A person does not have to go through a medical intervention such as hormone treatment or surgery, or gain a Gender Recognition Certificate (GRC) to transition gender.
- We will support all transgender members of staff in the workplace and go beyond the requirements of the Equality Act 2010, which specifically protects people if they propose to undergo, are undergoing or have undergone gender reassignment or have gone through part of the process.
In relation to access to nominally single-sex facilities, the TaW policy states:
All members of staff are entitled to use toilet and changing facilities appropriate to the sex in which they are currently living, regardless of whether they undergo gender reassignment, such as hormonal or surgical treatment or having socially transitioned by changing name, appearance, title, clothing etc.
Depending on the facilities that are available there may be a need to consider if additional privacy needs to be provided, such as shower cubicle screens or curtains.
A section on ‘Definition of Terms’ states, ‘The terminology we use is very important to create an inclusive workplace for everyone’. For the most part, these entries are variously inaccurate, contested, or hard to understand. For example:
Birth Gender – is the gender a person was originally registered as on their birth certificate, usually according to the appearance of their external genitals.
Cross-dressing People (also referred to as Transvestite People) – This term refers to people who dress, either occasionally or more regularly, in clothes associated with the opposite gender, as defined by socially accepted norms. Cross-dressing people are generally satisfied with their birth gender and do not want to permanently alter the physical characteristics of their bodies or change their legal gender. They may dress as the opposite gender for emotional satisfaction, or just because they feel more comfortable doing so.
Androgynous People (also sometimes called Third-gender People, Bi-gender People and Polygender People) – This term refers to people who find they do not feel comfortable thinking of themselves as simply either men or women. Instead, they feel that their gender identity is more complicated to describe. Some may identify their gender as being some form of combination between a man and a woman, or as being neither. Like transsexual people, they can experience gender dysphoria (sometimes as intensely as transsexual people do) and may sometimes at least partially transition socially and may take hormones or occasionally undergo some surgery.
Non-binary trans people – is used to refer specifically to the sub-set of trans people who do not feel comfortable thinking of themselves as simply either men or women. They reject the traditional idea of gender as binary, defined only in terms of man or woman. Instead, they feel that their gender identity is more complicated to describe. Some non-binary trans people may identify their gender as a mixture of being a man and a woman or as fluctuating on a spectrum between man and woman. Alternatively, they may feel they have no gender and prefer simply to be seen as just a human being…
Under ‘Useful links’, the policy links to the Stonewall Quiz ‘Find out if you are ready to stand up as a trans ally’.
Internal pushback
The 2019 EqHRIA shows that the revised policy was met with internal criticism. Feedback from a Police Scotland Safer Communities Equality & Diversity Advisor1 highlighted potential adverse impacts in respect of sex, particularly in relation to the inclusion of cross-dressers:
The Safer Communities E&D Unit has been in correspondence with the policy owner regarding this draft guidance. We have offered observations regarding aspects of the guidance that have the potential for adverse impact on a particular protected characteristic, and we have made suggestions for amendment.
One area in which we raised observations about potential adverse impact related to the policy owner’s proposed guidance on cross-dressing people. Our suggestions for amendment have been declined by the owning department, which remains relaxed about the section of the guidance that is of concern to us.
Having now been given sight of the owning Department’s accompanying EQHRIA, we note that there are significant evidence gaps in the EQHRIA that relate directly to our concerns about potential adverse impact.
Regarding the potential equality and human rights impacts of this policy and guidance, there is a considerable amount of relevant evidence available that has not been collected or referenced in this impact assessment. For example, this EQHRIA does not make reference to any evidence of potential adverse impact upon sex equality. Whereas, the Scottish Government has gathered a great deal of detailed information and analysis in that regard, which the owning department will wish to examine in order to reconsider the assessments that it has made of likely impacts upon equality and human rights, and upon sex equality in particular. Specifically, the owning department will wish to review and reassess the nature and scale of likely impacts upon sex equality and religious equality by considering the relevant information and analysis that was published by Scottish Government in November 2018…
Acknowledging these points, P&D amended the main body of the EqHRIA to include the Safer Communities feedback. This read:
… it would appear that a SOP that grants cross-dressing males access to women-only spaces or intimate search duties has the potential to have an adverse impact on women, in light of the critical feedback received by Scottish Government in response to its public consultation on reforming the Gender Recognition Act 2004…
The inclusion of cross-dressing people (who are generally happy with their birth gender) in a SOP list of groups who are transgender (trans woman, trans man, transsexual people, gender dysphoria, gender reassignment) invites PS/SPA line managers to treat as female for deployment purposes individuals who may not be appropriate to carry out such duties.
[The Scottish Government consultation on gender recognition reform] … received responses from women’s rights groups that expressed serious concerns about potential male intrusion into women’s places of privacy and safety. Where respondents explained their concerns, it was often to suggest that the proposal would allow ‘predatory men’ or ‘biological men’ to gain access to women’s spaces where they could pose a potential threat to women’s safety. Particular concerns were raised for the victims of rape or domestic abuse and also with respect to the safety of women in the prison system.
The EqHRIA included this analysis and classed the impact of the policy on the protected characteristic of ‘sex’ as ‘Positive / Low Negative / High’. Its concluding list of mitigating actions, however, contained no explicit reference to sex. It stated only that in respect of ‘Issues of concern raise [sic] by the Christian Police Association’ (who are also noted in the EqHRIA as having commented under this heading) it was ‘Arrangement meeting [sic] with Christian Police Association to discuss feedback received’. It made no reference at this point to addressing feedback from its own Safer Communities E&D Unit. Given what the document itself contained on this, the lack of any specific recognition of issues relating to sex in the mitigation strategy and action plan is extraordinary.
At cross purposes on cross dressers
Whilst incorporating the Safer Communities feedback, further comments by P&D denied that the policy was inclusive of cross-dressers. This appeared to hinge on the belief that the policy limited references to cross-dressers to the glossary.
In relation to comments below regarding cross-dressing this definition has been included within the Glossary of Terms as a way of raising awareness of the definitions recognised under the Trans Umbrella. This Glossary has come from the Equality Network website, specialist is trans issues. I am confused as to why it’s [sic] inclusion in the glossary would suggest that managers would infer that cross dressing people should be accorded the same employment rights (and search duties) as the various categories of trans people. This is not the case and not the purpose of the SOP or guidance. It is important to acknowledge cross-dressing is consistently included under the Trans Umbrella and therefore there requires a need to ensure staff understand what this does and does not mean…
As shown above, that the policy covered cross-dressers was made clear in its opening lines.
Fulfilling government ambitions
Additional comments by P&D stated that further revisions to the policy would be informed by the direction of gender recognition reform.
The Scottish Government have now put on hold their review of the Scottish Government – proposed reform of the Gender Recognition Act 2004 referred in the body of the EqHRIA the outcome of which is awaited and will inform any future review of this policy.
… in the lack of any progressive outcome this SOP shall be published in its current format.
In doing so, it appeared not to recognise that the policy had, already, put into place the same principles that the government was seeking to introduce in law. In other words, Police Scotland had already fulfilled the ambitions of government and activists.
Did Police Scotland understand its own policy
The EqHRIA concluded:
I am satisfied that what has been produced and implement [sic] is a competent document which is legislatively compliant.
We think this is questionable at best.
For the most part, internal disagreement focused on whether the policy extended to cross-dressers. But this was largely a moot point. Just as the policy gave cross-dressers a free pass to access female-only spaces, it did the same for any man claiming a subjective and unverifiable trans identity.
As we advised Police Scotland in 2019, if woman are not confident that they have privacy from men in situations where they are vulnerable (getting changed, using toilet facilities), it leaves employers at risk of indirect discrimination (where a policy or way of working puts a protected group at a disadvantage). Even if curtains or cubicles are provided, female staff are likely to feel uncomfortable or vulnerable with men using the same facilities and spaces, potentially engaging Article 3 rights (on degrading treatment). Staff may be reluctant to express their concerns, given the sensitivities involved, particularly more junior staff.
Single-sex spaces are needed by some observant religious groups. For example, Muslim women who wear head coverings may need to adjust these, which cannot be done in front of males. Here, the policy could indirectly discriminate on the basis of religion or belief.
Barrister Naomi Cunningham states policies ‘which advise that anyone who asserts a cross-sex identity must be allowed to use single-sex facilities for the opposite sex, will lead [the organisation] into acting in breach of the Workplace (Health, Safety and Welfare) Regulations 1992.’
Legal advice and first principles
In relation to its beleaguered incident recording policy, Police Scotland has criticised the Scottish and UK parliaments for failing to set out laws to help public bodies deal with gender identity. Deputy Chief Constable Alan Spiers told the Criminal Justice Committee:
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.
Yet as several legal commentators have observed, whilst the law in this area is complex, it can nonetheless be navigated, and some key parts is quite clear.
Dr Michael Foran states:
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.
That Police Scotland believed a policy which allows male staff to access female toilets and facilities did not raise obvious ethical issues, nor put Police Scotland at any risk of legal challenge, is further evidence that the single service has a problem with its internal legal advice and/or is relying on staff organisations or lobbyists without relevant legal expertise. As Dr Foran observes, part of the difficulty here is a ‘training and lobbying environment that contains active disinformation’.
The Scottish Police Authority has also failed here. In 2021 the SPA Chair told us that it was not aware of any concerns about the Transitioning at Work policy, not grasping that the policy provided for the possibility of male access to female spaces, to the detriment of women.
Elsewhere in the public sector, a female nurse is currently suing NHS Fife after she was suspended for complaining about having to share a work changing room with a trans-identified man. Similarly in England, eight female nurses in England are suing their employer for allowing trans-identified men to use the women’s changing rooms at their place of work.
Police Scotland expenditure on Equality, Diversity and Inclusion staff is over £500,000 per year. Between April 2019 and March 2024 it spent over £200,000 on training and materials. These are large sums for a cash-strapped organisation, the use of which needs to be subject to proper scrutiny. For starters, as part of the review by ACC Paton, Police Scotland should look to redirect at least some of that resource into formal, independent legal advice. In this case, however, there is also unusually clear evidence of advice from internal Police Scotland equality and diversity advisers being ignored and sidelined, when it did not fit a larger agenda to which the organisation had decided to subscribe.
Above all, Police Scotland needs to think from first principles. It should not be beyond the capabilities of an organisation that deals with male violence against women to understand, firstly, that the objections to its policies are about sex, not gender identity. And second, that offering men a free pass to female-only areas, based on nothing more than an unverifiable identity claim, is a dereliction of its safeguarding responsibilities.
Notes
- The Police Scotland Safer Communities Division was later incorporated into the ‘Policing Together’ portfolio.