Police Scotland and the Sullivan Review: getting data collection back on track
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.
Scottish Police Authority Chair’s Report September 2024
I note that the Chair’s report refers to the UK Government’s February 2024 commission of an independent review and best practice development around data collection issues – we strongly welcome that work and look forward to seeing its outcome in the months ahead.
Chief Constable Jo Farrell September 2024
Introduction
The recent publication of the Sullivan Independent Review of Data, Statistics and Research on Sex and Gender, to which we provided support, has thrown a spotlight on data collection practices in the public sector and in research. Drawing on hundreds of surveys, administrative and research datasets, and data collection policies, the report traces the extraordinary confusion around data on sex and gender that has arisen over the last decade, and the widespread loss of data on sex.
The Review explains why data on biological sex is foundational to good research and policy-making, the principles that underpin reliable data collection, and sets out 59 recommendations for government agencies, public bodies, and beyond.
What about policing
Ultimately, we need to remember what crime statistics are for. Such statistics do not exist to affirm the identities of the perpetrators of crime. They exist to further our understanding of crime. The accuracy of such statistics is vital, both as a foundation for data analysis, and to ensure that public trust is not undermined.
Professor Alice Sullivan, August 2021
For policing, sex is a primary determinant of offending and victimisation. For frontline officers, it is an everyday reality. It is evident in patterns of offending and arrest, and types of victimisation. Men are substantially overrepresented at all stages of the criminal justice system, compared with women. This is particularly true in relation to the most serious offence types and sentences.
Police Scotland incident recording
Despite its obvious relevance, Police Scotland, along with other police forces and criminal justice agencies across the UK, has lost sight of sex as a clearly defined variable, and struggled to establish a coherent position on data recording.
Current policy provides for recording based on self-identified gender or gender ‘as presented’. At the same time, it has made inconsistent statements in relation to its position on recording sexual offences. In September 2024 the Chief Constable stated that rape would only be recorded on a biological basis.
Police Scotland public surveys
The same confusion is evident in Police Scotland public surveys. The annual Your Police public survey only asks about gender identity. In response to a public query about the survey, Police Scotland stated:
We do not need to know someone’s biological sex characteristics. What is important, is how they identify their gender.
Police Scotland Research and Insight Team September 2021
In 2021 Police Scotland sought public views on its Equality Outcomes, explaining ‘Police Scotland has a legal duty, under the Equality Act 2010, to identify equality outcomes every 4 years to ensure that we can deliver the best service possible for all of our communities and our staff… The survey talks about protected groups – by this we mean people or groups who identify with one of the protected groups detailed in the Equality Act 2010’.
In a question intended to capture data on sex, the survey asked the following:
Do you think of yourself as:
Male
Female
Non-binary or Gender neutral (I don’t see myself as only male or only female)
In another way (please type here: ……………………. )
I don’t want to say
The same question was asked in the Police Scotland survey on body-worn video.
A 2020 consultation on Police Scotland’s long-term strategic approach asked the following question:
Which of the following best describes you?
Female
Male
Transgender
Non-binary (gender neutral)
Prefer not to say
Inconsistent and incomprehensible
Police Scotland is not alone here. As documented in the Review, data collected by other UK police forces is variously based on officer observation, self-declared sex, sex at birth, or sex as amended by a Gender Recognition Certificate (GRC), with variation between forces and offence types. Sometimes the term ‘sex’ is used and sometimes ‘gender’, with no clear distinction between the two.
The UK-wide (Home Office) database for offenders subject to Multi-agency Public Protection Arrangements (MAPPA), including sex offenders and terrorists, includes an ‘other’ category which ‘covers any other gender such as gender fluid or non-binary gender’. A separate drop-down menu provides for 51 gender identities, with options such as androgyne, bigender, genderqueer, gender fluid, gender non conforming, gender questioning, gender variant, neutrois and pangender.
Why sex matters
In policing, the classification of a small number of males within the female category may result in an artificially significant increase in female offending rates. Risks to data reliability are higher when the offence type is rarely committed by women, such as sexual offending.
As Professor Sullivan previously explained to the Scottish Parliament Citizen Participation and Public Petitions Committee, in relation to Police Scotland policy on recording rape:
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.Professor Alice Sullivan, August 2021
Even in the unique case of rape, it is not as simple as being able to assume that all cases recorded as female are in practice male, as women can be convicted of rape under ‘art and part’ provisions.
Misclassification may carry also operational risks, for example in relation to the accuracy of search fields or public assistance calls that wrongly describe the suspect’s sex. Police National Computer (PNC) guidance states it is ‘quite possible’ that an arrested person who has acquired a GRC and not informed the police ‘could be released or otherwise dealt with before any link to their previous offending history is known (through confirmation by fingerprints).’
How did we get here?
For decades, public bodies collected simple data on sex, mostly without instruction or explicit definition, with the understanding that this reflected biological sex. As the Sullivan Review makes clear, that taken-for-granted understanding can no longer be relied upon.
The destabilisation of sex as a clear and distinct demographic variable coincides with the strong push for gender self-identification as a basis for policy and law, from around 2015 onward, and the uncritical acceptance of this by public bodies.
In response to successful lobbying by external organisations and internal staff groups, criminal justice agencies have made fundamental changes to the way in which data is collected, essentially providing for personal affirmation rather than operational need. This ‘inclusive’ impulse is, for example, writ large on the 51 recording options for MAPPA offenders, which clearly has no operational value.
The hyper-sensitive approach is mistaken not only because it actively introduces unreliability, or in some cases, useless data, but more simply, because self-expression is not the purpose of data collection. As the Sullivan Review explains:
There are things that statistics cannot do. Statistics are not a means of personal self-expression, they can neither validate nor invalidate individual identities, and they cannot see into people’s souls. In fact, statistics are wonderfully indifferent to individuals. Each person is unique, but statistics do not aim to capture this uniqueness, in fact it is important that they should not identify individuals. Statistics are about aggregate patterns and trends.
Sullivan Review, page 7
Getting back on track
The Sullivan Review provides a strong practical steer for police forces and other criminal justice agencies across the UK.
The Review recommends collecting data on biological sex, phrased simply as ‘What is your sex?’ (male, female), and explains that it is lawful to do so. This assurance is supported by independent legal advice commissioned for the Review, covering the Equality Act 2010 and Public Sector Equality Duty (PSED), Human Rights Act 1998, data protection law, Gender Recognition Act 2004 and other relevant legislation (see Appendix 1).
The recommendations are further reinforced by the recent UK Supreme Court ruling in the case of For Women Scotland vs the Scottish Ministers, which confirmed that sex in the Equality Act 2010 refers only to biological sex.
Data collection principles
The Review explains the basic principles of question design, including the need for a clear data target and wording, and continuity over time (see Chapter 2). Recommendation 3 explains:
… Questions which combine sex with gender identity, including gender identity as recognised by a Gender Recognition Certificate (GRC) have a mixed target. Sex as a biological category is constant across time and across jurisdictions, whereas the concept of ’legal sex’ subject to a GRC may be subject to change in the future and varies across jurisdictions. Using natal sex future-proofs data collection against any such change, ensuring consistency.
Recommendation 3
It advises that questions which mix sex and gender identity are likely to be in breach of the Public Sector Equality Duty. For Police Scotland, this observation is applicable to any surveys or data collection relating to equality outcomes.
…. We have observed a trend for questions which attempt to combine sex and gender diverse identities in one question. Such hybrid questions aim to solicit information on sex from the majority of respondents but on gender identity from some respondents. As such, the target of the question is muddled. Questions that mix sex and gender risk organisations being in breach of the PSED, as they do not identify either the protected characteristic of sex or the protected characteristic of gender reassignment.
Recommendation 17
To be clear this is not an argument against collecting separate data on transgender status. As the Review points out, the two categories are not in competition. Indeed, there are significant data gaps in relation to both victimisation and offending for this group. Recommendations on how to collect this type of data are covered in the review.
What is unusual in the case of sex is that the possibility that a small number of respondents may find a question sensitive has led to the question not being asked, despite being acknowledged as analytically extremely important. In some ways, sex and gender identity have been set up in competition with one another, such that it seems to be believed that one cannot be respectful of identity without erasing sex.
Sullivan Review, page 23
Data quality: gender, assigned at birth, intersex
Addressing problematic existing practices, the Review recommends the terms ‘gender’, and ‘assigned at birth’ are dropped, as these are respectively unclear and inaccurate. It also explains why public bodies should not offer an ‘intersex’ option.
We recommend against using the phrase ‘sex assigned at birth’. This phrasing is inaccurate and misleading, as sex is determined at conception and typically observed in utero or at birth. An individual’s sex is not determined by their birth certificate, it is merely recorded on their birth certificate. In very rare cases an infant’s sex may be inaccurately recorded at birth, but this does not imply that sex is merely an assigned label rather than an inborn characteristic.
Recommendation 8
People with DSD have a sex, they are not a third sex or sexless category, and to imply that they are is likely to cause offence. DSD is an umbrella term without a single agreed definition, and the question of which conditions are included is contested. Under conventional definitions, people with DSD are estimated to make up 0.018% of births, i.e. fewer than 2 in 10,000. Asking for DSD status is highly intrusive, poses a risk of identifiability, and is unwarranted given the lack of analytical use for data on such a small group. Asking for this information would need to be via a distinct question, not part of a question on sex or gender identity, and is likely to be justified only in the context of specialist medical studies.
Recommendation 19
Police Scotland review of sex and gender
At the time of writing, Police Scotland is undertaking a review of data recording on sex and gender (and other relevant policies). As noted above, ahead of publication, the Chief Constable stated that she was looking forward to Professor Sullivan’s report and its outcomes.
Police Scotland roundtable
As part of its own review, Police Scotland has invited over sixty stakeholders to a five-hour roundtable meeting to review its draft recommendations. Invitations have been sent overwhelmingly to police staff, police staff associations and unions, other policing-related bodies, Scottish Government civil servants, representatives from other parts of the criminal justice system and other some other parts of the public sector. Most of these institutions have promoted and/or adopted gender self-identification principles as a day-to-day substitute for sex, with limited exceptions. Police Scotland has also issued six invitations to Scottish Government-funded LGBT organisations which continue to advocate forcefully for self-identified gender to take priority over sex in law, policy and practice, including since the recent Supreme Court judgment (seven invitations, if counting the Equality Network Board of Trustees Convener, who is invited in an academic capacity).
Police Scotland has issued only four invitations to organisations (other than ourselves) who have argued for the importance of sex as a lifelong, material reality in public policy and practice. To the best of our knowledge, fewer than eight invitees have publicly supported a position that is consistent with the Supreme Court’s verdict that sex under the Equality Act is biological, with implications not just for operational policies, but also for data recording, if this is to support delivery of the Public Sector Equality Duty.
We have written to Police Scotland about this imbalance, highlighting the omission of For Women Scotland and the Police SEEN network. We have also asked for sight of the written recommendations, as we cannot attend an event on this date.
We do not think that it should be controversial to say that data on sex matters in policing, nor that administrative data, paid for by the public purse, should be reliable and have a clear purpose. In line with the Sullivan Review, we would stress the need for critical thinking and impartiality. After a decade of obfuscation by lobbyists, we believe that the recommendations in the Sullivan Review, alongside the judgment in For Women Scotland v the Scottish Ministers, provide a clear route for Police Scotland to get back on track. Against this background, it is difficult to see what the purpose of any roundtable at this point would be, other than establishing how years of poor practice by Police Scotland are finally put behind it, as quickly and effectively as possible.
Afterword: roundtable or separate tables?
Since issuing invitations, Police Scotland has re-contacted attendees, in response to ‘feedback received’. They state ‘it is incumbent on us, as an organisation, to create a safe and respectful environment for key stakeholders to contribute to shaping our policies and procedures moving forward’, and that ‘Police Scotland is acutely aware of the sensitivities surrounding this subject matter’. To this aim, Police Scotland has now offered attendees the option to attend in person, observe online, or, to ‘participate in a separate discussion without other groups present’.
