There has been a lot of attention this week on Police Scotland with the media reporting that they will record rapes as being committed by a woman if the offender identifies as female, whether or not they have a legal gender recognition certificate (GRC). When JK Rowling sent a tweet about it this attention went global. This has followed a petition to the Scottish Parliament by MBM Policy to Accurately record the sex of people charged or convicted of rape or attempted rape.

Earlier in the year Police Scotland responded to an FOI request on 2/3/21 asking:

“Please can you confirm: If a male-born person self-identifies as female and is arrested/convicted for the crime of rape, will the gender of the suspect/perpetrator be recorded as male or female?”

In response the police, correctly, say:

“A person can identify and obtain a Gender Recognition Certificate without undergoing surgery. So a Trans female (Male to female transition) can be legally identified as female without having a surgically constructed vagina and may be in possession of a fully functional penis.”

The person described here is not a woman though, and by that I mean, a woman who is biologically female and was registered at birth as such.  This is a description of a person who has transitioned, male to female, man to woman.  These are two very different categories of people. 

Police Scotland go on to say:

“In these cases the charge of section 1 Rape would still be competent and is legislated for under Section 20 of the Gender Recognition Act 2004 which was adopted into Scots law under a Sewell motion without alteration.”

Section 20 Gender-specific offences of the Gender Recognition Act 2004 (GRA) states:

(1) Where (apart from this subsection) a relevant gender-specific offence could be committed or attempted only if the gender of a person to whom a full gender recognition certificate has been issued were not the acquired gender, the fact that the person’s gender has become the acquired gender does not prevent the offence being committed or attempted.

(2) An offence is a “relevant gender-specific offence” if— (a) either or both of the conditions in subsection (3) are satisfied, and (b) the commission of the offence involves the accused engaging in sexual activity.

(3) The conditions are – (a) that the offence may be committed only by a person of a particular gender, and (b) that the offence may be committed only on, or in relation to, a person of a particular gender, and the references to a particular gender include a gender identified by reference to the gender of the other person involved.

Police Scotland conclude:

“The gender of a perpetrator in these circumstances would be expected to be recorded as female on relevant police systems and a charge of rape would be competent.”

Also, it’s not clear why Police Scotland responded to a question about a person who self identifies as female but instead refers to a person who has obtained a GRC.  Perhaps they see no difference, that if a lawful GRC holding male sexual offender would be recorded as Female, why not also apply it to a person without a GRC?

Police Scotland have quoted Section 20 GRA to justify this recording practice, but they are perhaps unaware of recent court findings and have thereby misinterpreted the exceptions within the legislation. Section 9 GRA is about the consequences of issuing a GRC, it states at 9(1) “Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender”.  But the full effect of this is subject to other provisions, and the Act has a list of exceptions under this heading, one of which is Section 20.   Instead of recognising this as an exception to 9(1) it would appear from the FOI response that Police Scotland have applied the opposite thinking to this, i.e. that Section 20 permits them to lawfully regard this male sexual offender as female.   The correct way to interpret the GRA is that for those issued with a GRC, where an exception applies, they are still to be treated as having their gender at birth.  This interpretation of the exceptions within the GRA, and how they apply to a person issued with a GRC, was detailed within a Judgment handed down by the Court of Appeal on 29/4/20.

The case involved Alfred McConnell, a transman with legal recognition of his acquired gender (GRC), who thereafter gave birth to a son and did not want to be recorded as the mother on the birth certificate.

The case, first heard in the High Court, was about the interpretation of Section 9 GRA, where a full gender recognition certificate is issued to a person, and the exceptions to the general effect once issued, in particular Section 12 which is in reference to Parenthood. It found that Section 12 is both retrospective and prospective in its effect. It was subsequently heard in the Court of Appeal where it was agreed this was the correct interpretation. Permission to appeal this decision from the UK Supreme Court was refused.

The Judgment of these cases provided clarity about the general effect of being issued with a GRC and the various limitations that may apply.  Although this case was specifically about the exception in relation to the status of parenthood, the other exceptions, and how they should be interpreted were also discussed.

Section 12 about Parenthood and Section 20 about Gender-specific offences are two of the exceptions listed as to the general effect of 9(1), and in these circumstances, when properly applied, the outcome is as if a GRC had never been issued, and therefore the person must be treated as their sex at birth.  

The Court of Appeal stated:

“On that interpretation (which the High Court accepted and which we also would accept on the natural interpretation of the legislation) the general effect of section 9(1) of the GRA is displaced to the extent that an exception to it applies. For present purposes the relevant exception is contained in section 12. It follows that, although for most purposes a person must be regarded in law as being of their acquired gender after the certificate has been issued, where an exception applies, they are still to be treated as having their gender at birth.”

I would recommend policy makers within Police Scotland, and elsewhere, familiarise themselves with these current court findings on the interpretation of the GRA, to ensure their policies and practices reflect the correct application of the legislation.

In the FOI response Police Scotland quoted Section 20 GRA, so does that mean the offence of Rape, as defined at Section 1 Sexual Offences Scotland Act 2009, is a Gender-specific crime?  The GRA uses the terms “sex” and “gender” interchangeably to refer to the biological categories of male and female, and in relation to this exception for sexual offences, where it states, “that the offence may be committed only by a person of a particular gender”, it can only be referring to a person of a particular sex and, in this case specifically, a person with a penis.

The Sexual Offences Scotland Act 2009 has been drafted in gender neutral terms, and it addressed matters for the first time such as recognising that men could also be the victims of rape. 

Section 1 of the Act describes the offence of rape as:

“If a person (“A”), with A’s penis—

(a)without another person (“B”) consenting, and

(b)without any reasonable belief that B consents, penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B then A commits an offence, to be known as the offence of rape.”

Prior to this change in the law the Scottish Law Commission had comprehensively reviewed how sexual offences should be defined, producing several reports, firstly the Discussion Paper on Rape and Other Sexual Offences 2006 and then their recommendation Report on Rape and Other Sexual Offences 2007.

A new bill was created based on these recommendations and then passed through Parliament.  The Justice Committee heard evidence from representatives of the Scottish Law Commission and others, and despite it being hailed as a gender-neutral bill because any person could commit the offence, it was widely accepted that, having acknowledged the distinct and specific wrong of penile penetration, only men could commit the crime of rape. 

There was one exception though and this was explained by the Lord Advocate.

“Section 1 of the bill relates to penetrative abuse with a penis—and it relates to abuse committed by both men and women. I think that there has been a suggestion in the committee that such abuse could be committed only by a man, but it could be committed by a woman with an artificial penis or by a woman who has a surgical prosthetic.”

This is clarification that Rape can be committed by a man with a penis or a woman with an artificial penis.  There was no mention of a person who self identifies as the opposite gender nor a person who has legal gender recognition in their acquired gender.  To be able to make such an unequivocal statement that would include all people with or without a GRC, it requires the application of Section 20 GRA, meaning that they are still to be treated as having their gender at birth.  

The Lord Advocate’s statement is clear, there are two sexes, men and women, and any trans person’s acquired gender or self-identified gender must be disregarded.  In these circumstances, a transwomen would be officially and lawfully recognised as a man and a transman would be officially and lawfully recognised as a woman.  (Also, it’s important to note, the Lord Advocate’s statement does not say that a woman can have a penis, she says a woman can have an artificial penis, thus recognising that a difference exists. A decade ago no one was asserting that a woman could have a penis, and it was on this basis that the legislation was created.)

The Lord Advocate went on to state that Section 1 Rape – penile penetration – differs from the other serious offence of penetration with an object:

“The consequences for a victim of penile penetration can be extremely serious because of HIV and hepatitis as well as pregnancy. An aggravation can come from that.”

The Scottish Law Commission’s Report on Rape and Other Sexual Offences  was also clear on this point:

“the penis is a sexual organ, penile penetration constitutes a special type of wrong which is not present in other types of penetration.”

This aggravation could only apply to a person with a penis not a person with an artificial penis.  It is wrong that rapes committed by men, whose victims are at risk of HIV or pregnancy are to be recorded as being committed by a woman.  Are we to accept that a woman impregnated by rape, will have the crime against her recorded as being committed by a woman, whilst simultaneously that same person could also be legally recognised as the baby’s father? When considering the outcome of the McConnell court case, it has to questioned whether this policy of Police Scotland’s is lawful as it currently appears to be contradictory of what the law states.

The penis is a sexual organ.  The penis is a male sexual organ.  At no point during the passing of this legislation did anyone interpret its gender neutrality to mean that a woman could have a penis.  Or, rather, that a person in possession of a fully functional penis was female.

Are we as a society just to accept that policy makers in the last decade have decided that this most basic understanding of the biological categories of male and female no longer applies?  No person should be required to have unwanted surgical or medical interventions before they can be legally recognised in their acquired gender, and our country has legislated against these invasive requirements.  It was because of this wider approach taken that exceptions were needed, and these were based on when biological sex mattered most, like parenthood, sport and sexual offending.  Many rights and protections afforded to people vary according to which sex they are, and these are highlighted in various legislation across the UK.  Only this week the importance of recognising a person’s biological sex was explained by the Supreme Court in the case of Elan-Can who wanted to be issued with passport with a non-gendered marker, rather than male or female.

“On the contrary, legislation across the statute book assumes that all individuals can be categorised as belonging to one of two sexes or genders (terms which have been used interchangeably). Some rights differ according to whether a person is a man or a woman: for example, rights of succession to hereditary titles. There are criminal offences that can only be committed against persons of a particular gender: for example, female genital mutilation. There is a raft of legislation which assumes that only a woman can give birth to, or be the mother of, a child, including legislation relating to maternity rights and benefits, health provision and fertility treatment, and nationality. The legislation governing the registration of births requires the sex of children to be recorded. Legislation relating to marriage and civil partnership (including legislation permitting same sex marriages) assumes that everyone is either a man or a woman. The Gender Recognition Act 2004, enacted following the judgment of the European court in Goodwin v United Kingdom, likewise assumes that all individuals belong to one of two genders, albeit not necessarily the gender recorded at birth. Equality legislation protects people from discrimination if it arises from their being a man or a woman.

A binary approach to gender also forms the basis of the provision of a wide variety of public services. The prison estate, for example, is divided into male and female prisons. Hospitals have wards where patients can only be of a single sex. Local authorities may fund rape crisis centres or domestic abuse refuges which offer their services only to women. Many schools only admit pupils of a particular sex. Much of this is underpinned by, or permitted by, legislation.”

The biological categories of male and female still apply in UK law, and whilst the GRA enables people to have legal recognition of the opposite gender, it never forgot that where it matters most, biological sex still counts, and this is why the exceptions exist.

If anyone were to question if the GRA exception Section 20 Gender-specific offences would apply to Rape as defined in the Sexual Offences Scotland Act 2009? I would answer yes.  Yes, it would, unless you are prepared to ignore the entire foundations that this crime was drafted upon, then admit your belief that a fully functional female penis does exist.

Besides, Police Scotland must believe this exception would apply to this offence, as why else would they have quoted Section 20 in the FOI response?

It’s troubling that public bodies have introduced policies, that enable the opposite of what the law intended, without any scrutiny or consultation with the public.  Why can’t they just stick to the legislation we currently have in place?  The GRA has exceptions, so why are they not being properly applied? But, most crucially, many institutions can’t even accept the fact that the GRA actually does exist in this country, that we already have a legal process in place, so these exceptions are all meaningless when bodies override this lawful process and instead have policies that permit the practice of Self ID.   

These lawful exceptions exist in a framework that enables the rights of everyone to be respected.  Ignoring them may be to the benefit of one small group, but this will have a negative impact on others, and all these institutions need to be aware that their practices will be causing a detriment to those other groups.  And the group most disadvantaged, are the same people who are already more likely to be discriminated against and treated unfairly due to the differences in sex, and those people are women.

This week DCC Malcolm Graham of Police Scotland answered MSP questions at the Criminal Justice Committee on this very matter where he stated that a rape by a biological man who self identified as a woman had not occurred, therefore at this moment it was a hypothetical debate.  He also stated Police Scotland were awaiting clarity of Scottish Government guidance on this complex issue.  The crime of rape has been singled out as it is the most serious sexual offence a man can commit, but this criticism could equally be applied to other less serious sexual offences eg Section 3(2)(d) where it defines a sexual assault as when “a person intentionally or recklessly ejaculates semen onto” the victim.  It could even be argued that the recording of all sexual offences should accurately state the sex of the offender and the victim, since sexual violence is overwhelmingly a male crime that disproportionately impacts on women and girls.

This point was made by the Equality and Human Rights Commission during the reform of the Law on Rape & Sexual Offences where it cautioned “against a ‘gender blind’ approach” stating “the widespread sexism and public apathy towards women victims of rape and sexual violence is of grave concern”.

I can’t think of a worst example of the “sexism and public apathy towards women victims” when we have the Police, prosecution and courts recording the male sexual violence against them as having been committed by a woman. 

Could this get any more degrading for women? Whilst it may be hypothetical at this point, time and again it has been shown that the very situation women warn might happen, does then go onto happen.  And each time our concerns are dismissed out of hand as being insignificant, unlikely to happen or irrelevant.   The point here is that the current practice of Police Scotland would allow this to happen, and it’s incredible that no one envisaged this when the policy was adopted.  It would be reassuring to women and girls if Police Scotland and the Scottish Government could at least acknowledge our concerns and demonstrate to us exactly how they have considered the impact this would have on us.  Otherwise, any other response just comes across as yet another example of an issue, that for them isn’t important, and can be easily dismissed.