Police Scotland: Wasting parliamentary time?
Introduction
This blog charts the extraordinary behaviour of Police Scotland over the past six years, in response to a simple question: could a rapist ever be recorded as a woman, because he tells the police that he identifies as one? The national force, having previously said the answer to this is ‘yes’, is now saying ‘no’. This implies that Police Scotland has repeatedly misled a parliamentary inquiry over the past four years.
This is a story which goes beyond any one issue. It raises questions about how much reliance can be placed on public statements by Police Scotland – by the public, the press and, most seriously, the Parliament. It is a case study of how casually the new national force created in 2013 has taken its duty to account for its policies to those outside it.
In the statements below, any emphasis in bold has been added by us.
2019: Sex may be ‘pertinent’
In March 2019, in response to a parliamentary question on Police Scotland recording policy by SNP MSP Joan McAlpine, the then Cabinet Secretary for Justice Secretary Humza Yousaf told the Scottish Parliament:
“With regard to victims, witnesses and suspects, Police Scotland and the Scottish Courts and Tribunals Service record incidents according to a person’s self-identified gender. Police Scotland requires no evidence or certification as proof of gender identity other than a person’s self-declaration, unless—it is important to emphasise this—it is pertinent to any criminal investigation with which they are linked and it is evidentially critical that Police Scotland legally requires such proof.”
Scottish Parliament Official Report, 13 March 2019
In June 2019 Scottish Government paused work that was already underway on gender recognition reform and announced it would undertake a second consultation. This ran from December 2019 to March 2020.
In November 2019, in preparation for gender recognition reform, the Police Scotland Senior Leadership Board approved a position statement on recording.1 Police Scotland describes the Board as providing ‘strategy, policy and direction for Police Scotland.’ The membership of the Board is not listed on Police Scotland’s site, but the current membership of Police Scotland’s Executive team, which we assume may be the same, is available here. It is not clear from the available records who the most senior ranking officer present at the discussion in November 2019 was.
Police Scotland 2019 position statement
‘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.
Police Scotland requires no evidence or certification as proof of biological sex or gender identity other than a person’s self-declaration, unless it is pertinent to any investigation with which they are linked as a victim, witness or accused and it is evidentially critical that we legally require this proof, or there is reason for further enquiry based on risk. We would look for the most sensitive way to acquire this information.’
Written statement as provided by Deputy Chief Constable Malcolm Graham to the Criminal Justice Committee of the Scottish Parliament, 15 December 2021
2021: self-ID for rapists
In March 2020, the Scottish Government suspended work on gender recognition reform. Plans to legislate were, however, included in the manifestos of the Scottish National Party, and several other parties, published ahead of the May 2021 election.
As the statements from 2019 did not clearly rule out the recording of a male suspected of rape as a woman, in January 2021 we asked Police Scotland whether its policy on self-declaration extended to rape. In a follow-up response (after we asked for a plain English explanation of their initial reply) Police Scotland told us, categorically and graphically, that it did.
‘I have clarified the position with our criminal justice department and can advise the following… 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.’
1 April 2021, Police Scotland FOI Team
In June 2021 we therefore lodged a petition with the Scottish Parliament Citizen Participation and Public Petitions Committee. This called 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.’
Nearly four years later, the petition remains under consideration by the Committee, which has yet to question anyone from Police Scotland in person.
Police Scotland evidence to the Petitions Committee
Police Scotland has provided written evidence to the Committee four times over this period. Three submissions make clear that Police Scotland provides for recording based on self-identification for all offences. The final submission is more broadly framed, but suggests no departure from the position set out in the previous three submissions.
None of the submissions as published by the Petitions Committee provide any indication as to the responsible department, or the position and/or rank of the author, although the Committee may hold further information about that.
1st submission, November 2021
‘The sex/gender identification of individuals who come into contact with the police will be recorded on police systems such as crime management and custody databases on how they present unless an alternative gender is disclosed. This is the case for all offences.
There are specific circumstances where a woman may be recorded on police systems as having committed contraventions of Sections 1 and 18 of the Sexual Offences (Scotland) Act 2009. I can confirm this will occur in the following scenarios… [including] Where a person, born male and who identifies as a female (whether they have a GRC or not) and then commits rape (providing they have a penis)…’
2nd submission, November 2022
‘As detailed in the response on 22 November 2021 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.’
3rd submission, May 2023
‘the gender identification of individuals who come into contact with the police will be based on how they present, unless an alternative gender is disclosed. This is the case for all offences.’
4th submission, March 2024
‘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. This practice adheres to legislative compliance, operational need and the values of respect, integrity, fairness and human rights whilst promoting a strong sense of belonging.’
Over much of this period, the Scottish Government was attempting to write self-identification into law, but never succeeded in doing so. The current First Minister confirmed recently that he would leave any further reform of the Gender Recognition Act to be done at Westminster.
Police Scotland U-turn
On 25 September 2024, against a backdrop of intensifying media and political attention, Chief Constable Jo Farrell moved to distance Police Scotland policy from its previous evidence to the Petitions Committee. In an interview with Sky News, the Chief Constable made clear that a man accused of rape who identified as a women would always be recorded as male:
Chief Constable: So an individual comes into custody and if the sex of that person is pertinent to the investigation, they will be treated as in a scenario of a rape, which is the example I guess was where you’re going, they will be treated and we will investigate them as a man.
Interviewer: So even if they come to you and say, well, I identify as a woman…
Chief Constable: Yes.
Interviewer: As a transwoman…
Chief Constable: Yes.
Interviewer: You will continue that investigation…
Chief Constable: Investigation as a man, because it is pertinent and relevant to the crime that we are investigating.
Interviewer: And so in a situation where that crime is then recorded against that individual, that will be recorded as a rape committed by a man…
Chief Constable: By a man. Correct.
Interviewer: Even if they continue to maintain that they identify as a different gender…
Chief Constable: Correct, because we’re focused on investigating crime, focused on getting justice and in that scenario it is absolutely pertinent and relevant that the person who allegedly has committed that crime is going to be a man.
This position was confirmed the following day by the Chief Constable in a lengthy statement to the Scottish Police Authority.
‘To be clear – a male rapist cannot demand to be called a woman and further traumatise his victim – this would not happen. To my knowledge, this has never happened.
You can be assured that a man who commits rape or serious sexual assaults will be recorded by Police Scotland as a male.’
DCC Speirs also reiterated this position in writing to the Criminal Justice Committee.
How did Police Scotland communicate the U-turn?
This was evidently not what Police Scotland had described as its policy, to us in 2021, or then repeatedly to MSPs between 2021 and 2024.
In January 2025 we therefore asked Police Scotland if and how the single service had communicated its new policy position to officers and staff. Citing DCC Speirs, we asked:
‘With reference to the following statement made by DCC Speirs in a letter to the Criminal Justice Committee on 24 September:
“The Committee should be absolutely assured that a man who commits rape or serious sexual assaults will be recorded as a male.”
Please provide information on when this change in recording policy was communicated to officers/staff, and how.’
Turn and turn again
To our considerable surprise, Police Scotland told us it had not communicated the change, because its 2019 policy had not in fact changed.
‘I can advise that Police Scotland does not hold the above requested information… By way of explanation, Police Scotland have not adopted any change in policy, we still refer to a positional statement from 2019.’
Police Scotland Freedom of Information team, 24 February 2025
Nothing to see here
When asked about this by a Sky News journalist, who has shared the response with us, Police Scotland appeared determined to deny that its recording policy had ever provided for self-identification in the context of sexual assaults.
‘We have been clear that a man who commits rape or serious sexual assaults will be recorded by us as a male.
A male rapist cannot demand to be called a woman and further traumatise his victim – this will not happen. The policy referred to in the FOI is being reviewed as part of our wider review of gender and sex recording, which is ongoing.
For context and guidance this doesn’t contradict the 2019 policy which states there is no requirement for evidence or certification as proof of gender identity other than a person’s self-declaration other than a person’s self-declaration unless it is pertinent to any criminal investigation.
Clearly, it would be pertinent in the case of a rape or sexual assault investigation.’
Police Scotland, 25 February 2025
What on earth is going on?
In April 2021, Police Scotland sent us a graphically unambiguous statement that it records rape based on gender self-identification. Between 2021 and 2024, in repeated submissions to the Committee, it then defended that position. It claimed (wrongly) that any statistical effects would be negligible and, more extraordinarily, that its policy promotes ‘a strong sense of belonging.’ There was no ambiguity at all in these responses to the committee. The defence of applying self-identification in all contexts, including rape, was bullish.
The response to Sky News, and our recent FoI response, now says not only that is not policy now, but also that this has never been the policy.
This means one of two things:
- If, as Sky News and we have now been told, the 2019 policy did not provide for recording rape on the basis of gender self-identification, then Police Scotland has misdirected the Petitions Committee repeatedly over several years. It means Police Scotland has wasted the time of Committee, and its own resources, in a baffling act of institutional failure.
- If Police Scotland’s submissions to the Petitions Committee between 2021 and 2024 were accurate in describing the force’s policy as based on self-identification, then it has answered an FoI response wrongly and misdirected Sky News.
Only Police Scotland can shed further light on what has happened here and why. Gender self-identification has seen irrational and erratic decision-making by the force in other policy areas (such as allowing cross-dressers to access female facilities, urging staff to ‘evangelise their allyship’ to the LGBT cause and in material it has produced in relation ‘hate crime’, for example).
One question that deserves attention is how far official lines from Police Scotland to the Parliament were influenced by shifts in the national debate, and anticipated changes to the law, rather than giving an account of current practice on the ground. Another is at what level and by what process responses to the Parliament were signed off.
Anonymity, except in a crisis
It is hard, if not impossible, to pinpoint responsibility for the confusion here. As noted above, the four Police Scotland submissions to the Petitions Committee, as published at least, provide no details as to the owning department or any other information on authorship. The same is true of the 2019 position statement. Whilst approved by the Police Scotland Senior Management Board, no indication is given as to which department developed the statement, or who chaired the meeting at which it was approved. Nor has Police Scotland been called to provide oral evidence to the Committee.
The main exception to this is at times of heightened political scrutiny and/or reputational crisis. It is in this context that the Chief Constable and other Senior Officers, including DCC Speirs and former DCC Malcolm Graham, have spoken directly to the media, provided information to the Criminal Justice Committee, and engaged in public discussion with the Scottish Police Authority.
Whether Police Scotland has provided named communications to the Petitions Committee is impossible to tell from what the Committee has published. At first sight, it appears not.2
Paton Review on Sex and Gender
Whatever the explanation for its extraordinary behaviour, Police Scotland still has questions to answer. To what extent does its biology-based policy recording position on rape apply to other offences? What about other sexual offending, violent offending, domestic abuse and so on? Where does Police Scotland draw the line on recording offenders as the opposite sex, and how does it do that?
If the forthcoming Paton Review on Sex and Gender is to be taken seriously, it needs first to be upfront and admit that Police Scotland has failed to hold a coherent line on one of the most sensitive areas of data recording. It needs to provide a stable and reliable account of what it is doing now. And it needs to be open to discussion about recording practices in the round, across all offence types.
Where next for the Petitions Committee
Assuming the most recent response to Sky News is accurate, it is for the Petitions Committee to decide how seriously to take evidence that for four years it was given seriously inaccurate responses, requiring it to keep open a petition that could have been swiftly closed.
We will be writing to the Committee with a copy of this blog.
Notes
- Contrary to this, in an FOI response dated 11 April 2019, Police Scotland stated:
‘I can confirm that there was no ‘effective date’ for this process, rather it has evolved as best practice and ensures all people are treated fairly and with respect, in line with the Police Scotland Code of Ethics. With regards to victims, witnesses and suspects, Police Scotland have always treated people as they present and incidents are therefore recorded according to a person’s self-identified gender/sex. We require no evidence or certification as proof of gender identity other than a person’s self-declaration, unless it is pertinent to any criminal investigation with which they are linked and it is evidentially critical that we legally require this proof.’ ↩︎ - For reference, a a full chronology of statements by Police Scotland on its recording policy, both anonymous and named, is available below. ↩︎
