Keep Prisons Single Sex Wind Down

In May 2023 we published our report, Sex and Gender in Legislation: The Case Against "Legal Sex Change". You can read it here:

https://kpssinfo.org/sex-and-gender-in-legislation-pdf/

A supplementary document providing information on the research we conducted when writing the report can be found here:

https://kpssinfo.org/uk-legislation-sex-gender-pdf/

Our motivations behind this report were our grave concerns at GC groups pushing to split the concept "sex" in legislation into "legal sex" and "biological sex". We urge everyone with an interest in this area to read these documents.

Since the passing of the Gender Recognition Reform (Scotland) Bill at the end of December 2022, “legal sex”, and related concepts, have become established in debate, with the Gender Recognition Act 2004 (GRA2004) being described as enabling “legal sex change". In tandem, and with the intention of protecting the sex-based rights of women and girls, there have been calls that this necessitates a qualification of the protected characteristic "sex" in the Equality Act 2010 (EA2010), amending it to “biological sex”.

However, our position is that this understanding of GRA2004 is erroneous and overstates the effect of a gender recognition certificate, that "legal sex" has been misconceptualised, and that, whilst clarification of the law is desirable, qualifying “sex” in legislation in any way is unnecessary, has undesirable consequences and carries significant risk throughout domestic legislation, as well as to sex-based rights under international law.

We argue that GRA2004 does not operate to effect a "change of legal sex”. Rather, this “Act to make provision for and in connection with change of gender" enables a qualifying individual to obtain legal recognition of their "acquired gender”, with resultant legal consequence related to that individual’s legal status. Our position is supported by a reading of GRA2004, prior case law and the wording on a full GRC.

The consequence of the legal status of an “acquired gender” is unclear, in particular where it comes into conflict with rights of men and women on the basis of sex. This lack of clarity, together with concerns about privacy have acted to obscure sex in law. In tandem, the meaning of the term “gender” in law now lacks certainty, and, given the social trend to use the terms sex and gender interchangeably, requires clarification.

Whilst we agree that “legal sex” is a concept that has legal standing, our position is that an individual’s legal sex is simply the legal registration by the State of their sex as observed at birth, which forms part of their legal identity. This registration is fixed and unchanging, just as sex observed at birth is immutable. Hence, GRA2004 could not, by definition, effect a change of "legal sex”. Section 9(2) clarifies that this registration of “legal sex” remains an event unaffected by the grant of a GRC. Indeed, the operation of the exceptions to legal recognition of acquired gender in section 9(3) depends on the persistence of this "legal sex". If a GRC holder underwent a “change of legal sex”, that individual would effectively be able to claim that they had legal recognition of both sexes, male and female, one as registered at birth and the opposite as "changed" in accordance with GRA2004. This is incoherent and legally undesirable.

When legislation refers to “sex" it is referring to the registered sex observed at birth of persons legally recognised in law via State registration. In EA2010, "sex" was not left unqualified due to error, omission or confusion. It was also not replaced with the adjacent term “gender”. Rather, there was no need to qualify what sex is in law: it is a fact registered at birth and part of a person’s registered legal identity and there is no basis in legislation for any other interpretation of “sex”.

The contrary position, with which we disagree, sees “sex" in legislation split into an unchangeable aspect (“biological sex”) and a changeable aspect (“legal sex”). Splitting sex into two separate concepts in this way means that for any individual and at any time, whilst their “biological sex” is fixed, public and (in the overwhelming majority of circumstances) known, their “legal sex” is changeable, private and, unless and until declared, unknown. This complication creates uncertainty and impacts data collection. If robust data on sex registered at birth is not being collected, it is impossible to measure and address discrimination against women on the basis of sex.

It is unnecessary to clarify that “sex” in legislation means “biological sex” and it is also undesirable because the very act of adding a prefix or qualifier implies that “sex” has been, or may be, split into separate concepts, with each prefix requiring a stable definition. In our view such a move results in more uncertainty, not less, that due to the interwoven nature of legislation and policy will have an inevitable widespread impact.

Registration and recording of sex at birth, as a key demographic statistic of significant importance for policy decisions, is a legitimate function of the State. Yet, disrupting “sex” in this way operates to break the system of sex registration at birth upon which legal protections for women are founded.

Data collection throughout the criminal justice system has been a major concern for KPSS & has been a focal point for our work.

Upthread we posted about our work on data collection by police forces. Please have a look and check out the reports & other documents linked.

A major concern is that not only is self-declared gender identity NOT recorded in lieu of sex registered at birth recorded, but that neither is legally recognised acquired gender, where an individual has been issued with a GRC. In ALL cases it is sex registered at birth that MUST be recorded. No exceptions.

This is why we disagreed with the approach taken by Fair Play For Women in their Census 2021 application for JR and corresponding legal action in Scotland. Fair Play argued that sex registered at birth should be recorded in answer to the question 'what is your sex?' unless the individual has a GRC, in which case they should answer by stating what is displayed on their new copy short form birth certificate which, subsequent to issue of. GRC, will now display their legally recognised acquired gender, not their sex registered at birth.

We opposed this for several reasons:

1. This legal argument advanced by Fair Play agreed that for some purposes a man may be recorded as female, and vice versa;
2. It risked bolstering the significance & importance of a GRC, with a possible knock-on negative impact on the chances of repeal;
3. It risked setting a data collection precedent in law that would have implications for data collection practices extending beyond Census 2021.

We consider it foolhardy and naive to suggest that this was a "useful intermediate position" that could be built upon. That assumes, with no justification, that the direction of travel is in "our" direction.

In England & Wales Fair Play won on concession. In Scotland (and extremely fortunately, given the Gender Recognition Reform Bill) they lost.

In our opinion our fears were justified and were proven correct.

In our discussions with data collectors throughout the criminal justice system, we have faced time and again the outcome of the Census 2021 JR application which is used to argue for the necessity of allowing people to lie about their sex registered at birth where they have been issued with a GRC.

Prior to Census 2021, we "only" had to fight data collection practices & any guidance documents. Now we have to fight case law. This is MUCH harder.

Be that as it may, we have still had some successes. After the Prisons judicial review FDJ v SSJ (unconnected to KPSS), a statutory instrument was put in place that permitted data on GRC status of prisoners to be recorded and published. Prior to this, GRC holders we "hidden" in the data: men in prison who had been issued with a GRC were recorded in the female data and ONLY in the female data.

We have been in ongoing discussions with the MoJ about how these data can be recorded and reported going forwards so they have the maximum utility. We believe that these are currently as good as they possibly can be and certainly stand in marked contrast to data elsewhere in the criminal justice system.

Data on the number of prisoners who identify as transgender are released each November. 2024 will see the first figures that reflect the new MoJ allocation policy, which we worked so hard for (we will tweet about that shortly before we close).

The data still need careful interpretation and we have seen even "GC" groups misunderstanding them and making false claims, which have then made their way into the press. We have always worked hard to correct these, but will no longer be in the position to do so. This is a shame, not least because ascertaining the impact of the new policy through the data is vital.

Of course things are very different in Scotland. Scottish Prison Service has announced that they will no longer be publishing data on prisoners who identify as transgender that would permit us to calculate how many men are held in women's prisons (and vice versa - yes, SPS really are that mad....). Nor will it be possible to ascertain how many male prisoners make use of the "day pass" scheme that permit them to visit women's prisons for the purposes of accessing activities & programmes. We recently heard that even naming prisoners who identify as transgender may no longer be permitted.

Clearly the work required in Scotland is ongoing.

I am so sorry that we will not be able to undertake it.

Our briefing on the "Sarah Champion Amendment" here:

Over the summer, the "Sarah Champion Ammendment" to the Crime & Justice Bill was announced. This seeks to create additional criminal offences to prevent some, but not all, registered sex offenders from changing their names in some, but not all, circumstances.

It was heralded as a victory for safeguarding that would contribute towards keeping children and vulnerable adults safe. Many in the "GC Community" joined in these celebrations.

Although the full details are not yet available, we can already see that the Ammendment will offer no protection. Not only is it toothless, it risks solidifying the "value" of gender change & bolstering the opportunities (unrelated to non-discrimination) that being included in the protected characteristic "gender reassignment" brings. It will also unleash a raft of legal cases where individuals argue that their right to name change have been breached. This will result in an impossible-to-navigate body of case law.

We will be closing before parliament reconvenes and will be unable to conduct any more work on this. I will post our briefing as a series of screenshots below.

Digital identities have been described as providing a solution to the tension created when the principles of safeguarding and individual privacy rights come into conflict. Safeguarding refers to the framework of measures designed to protect the health, well-being and human rights of individuals. Certain groups of people are in particular need of safeguarding, including children and vulnerable adults, and statutory obligations for safeguarding are set out in legislation. Where an individual seeks to work with vulnerable groups, legislation specifies both the information that must be disclosed about that individual (and the manner in which this information can be requested) and information that must not be shared and which that individual is entitled to keep private.

The balance between individual privacy rights and the legitimate functions of the State to act in the interests of safeguarding is not static. Throughout the development of legislation around safeguarding and the evolution of employment vetting and barring services, there has been a ‘push and pull’ between an individual’s right to privacy and the legitimate function of the State to act in the interests of safeguarding.

Where there is a statutory requirement that certain information must be disclosed, an individual may not assert individual privacy rights in order to withhold that information. However, the individual may be entitled to keep other personal information, that is not covered in statute, private. Hard copy identity credentials are “all or nothing” in terms of the personal information they disclose, placing considerable limits on the ability to withhold personal information. However, digital identities permit the selective disclosure of information about an individual. A suggestion is that, in this way, digital identities can enable sensitive information to be disclosed for carefully specified reasons only and in a way that minimises the risk of infringing that individual’s privacy rights.

This suggestion has been extended to sex registered at birth on the grounds that this is also information that an individual has a legitimate right to keep private in some cases and that they should be enabled to do so. This perceived right has been described as being particularly relevant where the individual has changed gender. The conclusion, therefore, is that digital identities are able to more effectively enable safeguarding, including in the situation where an individual who has changed gender as part of changing their identity does not wish to have their sex registered at birth displayed on their identity credentials.

Our own conclusion, however, is that digital identities do not achieve more effective safeguarding: in fact they create additional risk. This is for several reasons. Firstly, the methods by which a digital identity is created mean that where an individual’s sex registered at birth has currently been replaced by their legally recognised acquired gender or by self-declared gender on documentation used to establish identity, this will simply be transferred to the newly created digital identity. In this situation, sex registered at birth is information that is simply unavailable. The result is that where an individual’s sex registered at birth should be disclosed, it cannot be because the unavailability of this information continues in the digital realm. Secondly, there is every indication that the enhanced individual privacy rights currently given to an individual who changes gender as part of changing their identity, which means that their sex registered at birth is concealed on identity credentials and on other documentation including DBS certificates, will also apply to digital identities. This means that even in the future situation where all data recording by the state is transferred into the digital realm, an individual who changes gender will remain able to ensure that their sex registered at birth is suppressed. In short: there is no evidence that sex registered at birth will be an accessible and disclosable attribute where an individual wishes to have their gender identity recorded instead.

Our view is that the enhanced privacy rights that permit individuals who change gender to conceal their sex registered at birth should be challenged. However, the proposed “solution” instead expands these rights to all people to enable everyone to withhold their sex registered at birth in certain circumstances. Whilst the difference between those who do and those who do not change gender is eradicated, this simply serves to bolster the erroneous notions that sex registered at birth is something to which privacy can legitimately attach and that withholding sex registered at birth is without consequence.

Our final concern is that digital identities create their own safeguarding loopholes and risk because their use creates a ‘distance’ between the individual and the organisation with statutory responsibility for safeguarding during the process of identity verification.

There has been much talk of the "solution" that digital identities will enable: specifically by balancing a perceived right not to disclose your sex registered at birth with a requirement to state the sex that you are. We are alarmed by these proposals and the direction of travel, which in our view sacrifices safeguarding at the altar of "rights".

In 2023, we published our report Digital Identities: Safeguarding Solution or Safeguarding Risk?

You can read it here:

https://kpssinfo.org/kpss-digital-identities-pdf/

The Disclosure and Barring Service plays a vital and unique role in safeguarding. By processing criminal record checks for individuals who have applied to work in roles where safeguarding considerations apply, the DBS allows organisations to access key information that will assist them in making safer recruiting decisions. The ability of a DBS check to play this role in safeguarding rests entirely on the relevance, completeness and accuracy of the information returned and displayed on the DBS certificate.

In December 2003, Ian Huntley was convicted of the murders of two 10-year old girls, Jessica Chapman and Holly Wells. At the time of committing the murders, Huntley had been employed at a local college as a caretaker, a position that facilitated his access to children. Although he had previously come into contact with the police over alleged sexual offences on many occasions, this information had not been disclosed during the vetting check carried out at the time of his appointment.

It is no exaggeration to say that the murders of the two girls and the subsequent discovery that Huntley should, and could, have been prevented from taking up the role of caretaker had a profound effect throughout the country. In 2004, following an independent inquiry, the Bichard Inquiry Report was published. This concluded that there had been extensive omissions and failures in the vetting process.

Significantly, Huntley had been able to change his name by deed poll to Ian Nixon and the criminal record check he underwent had only been carried out against this new identity. By presenting a new identity, Huntley had successfully severed the link with his existing police records meaning that the records held against the name ‘Ian Huntley’ were not disclosed.

Eighteen years later and safeguarding loopholes created where applicants submit identity documents for DBS checks that display a new identity remain.

Although the government has acknowledged the safeguarding loophole created where registered sex offenders are able to change their name by deed poll, the ability to change identity in a more fundamental way, by simultaneously changing both name and gender, remains unaddressed. Any individual can easily, and for any reason, change their name and gender on documents commonly used to establish identity via a process of self-declaration. These documents, that include passport and driving licence, can be presented for the purposes of a DBS check and will show the individual’s new name and their acquired gender instead of, and as opposite to, their sex.

The DBS grants enhanced privacy rights to individuals who change their gender when changing their identity. These are exceptional rights that are only granted to individuals from this group. The result is that identity verification is compromised, meaning that there is no guarantee that the information returned during the check and displayed on the certificate will be accurate or complete.

These exceptional privacy rights also allow an applicant who has changed gender to request that all their previous names are withheld from the DBS certificate that is issued. This right to conceal previous identities is not given to anyone else: disclosing previous identities is a key component of safeguarding and DBS certificates issued to all other individuals display all other names the applicant has used.

Applicants who change their gender are also permitted to conceal their sex and the DBS certificate issued will display their acquired gender instead. This right is not granted to any other individual: the importance of sex to safeguarding means that for all other applicants, their sex is always displayed.

These are all serious risks to safeguarding that compromise the validity and reliability of the DBS regime.

As digital identities are rolled out, including for DBS checks, the risk is that the existing loopholes will simply be perpetuated in the digital realm. In the drive for convenience and ease of use, digital identities also risk creating a new safeguarding loophole. In-person identity verification acts as a safeguarding protection in and of itself, yet digital identities can be shared remotely, meaning that this important step is removed.

The current operation of the DBS regime means that identity verification is compromised and organisations requesting DBS checks cannot have confidence in the information that is disclosed. In order to close these existing loopholes, we propose three recommendations:

• Mandatory use of National Insurance numbers for DBS checks and all identity changes
• DBS certificates display sex registered at birth
• DBS certificates display other names used for all applicants, including those who have changed gender as part of changing identity

In order to be effective, the rules of safeguarding must apply equally to everyone. Whenever the members of one group are excused from the normal requirements of safeguarding, a loophole is created that is ripe for exploitation.

In 2022 we published our report DBS Checks & Identity Verification: Safeguarding Loopholes Created by Changes of Identity.

You can read it here:

https://kpssinfo.org/dbs-checks-and-identity-verification-pdf/

We also published a Supplementary Document on Disclosure Scotland, which you can read here:

https://kpssinfo.org/disclosure-scotland-checks-pdf/

In these reports we set out the safeguarding loopholes that are created when individuals change gender, including by self-declaration, as part of changing their identity. This is because of the enhanced individual privacy rights that are awarded to anyone who changes gender, regardless of whether they are issued with a GRC (not that restricting these enhanced privacy rights to GRC holders only is any sort of solution for safeguarding).

This is our final post on policing.

After we revealed the safeguarding loopholes created in both Disclosure & Barring Service and Disclosure Scotland checks, we took it upon ourselves to examine the vetting processes forces have in place when recruiting officers, or when officers transfer or are promoted with or between forces.

Our research looking at DBS and Disclosure Scotland checks revealed that whenever a change of identity includes a change of gender (including by self-declaration) enhanced privacy rights are granted that create safeguarding loopholes.

NB: The "Sarah Champion Sex Offender Name Change Amendment" is frankly useless and digital identities not only perpetuate existing issues, but create new risk. But more on that later.

We asked FOIAs of all forces nationally and the replies we received revealed serious safeguarding loopholes.

We had hoped to complete and publish a report, but sadly this is no longer possible.

We hope that other organisations, who operate from a safeguarding-first perspective, will tackle this important, and currently overlooked, issue.

Another area of our work on policing focuses on the policies for searching detainees, specifically those that allow for opposite sex searching where an officer identifies as transgender. The now infamous NPCC guidance dated December 2021 which mandated opposite sex searching in these circumstances can be read here:

https://kpssinfo.org/ccc-searching-by-transgender-officers-staff-09122021-pdf/

This guidance was rolled out across forces nationally and, in the main, was adopted without question. A few took a more cautious approach and in 2022 we were invited to give oral and written evidence to one police force. You can read our written submission here:

https://kpssinfo.org/police-searching-policy-pdf/

Thanks to exposure in the media from WRN, the NPCC policy is under review. However, the local policies adopted by individual forces remain in operation and, in many cases, permit and even mandate opposite sex searching of detainees. You can search the responses to the FOIAs we asked using on Twitter using #ManifestoForPolicing

In conjunction with Fair Cop we commissioned KC's opinion on the NPCC policy. Thank you to everyone who donated to the crowdfunder which made that possible. The opinion concluded that the guidance was not lawful. You can read that opinion here:

https://www.faircop.org.uk/police-strip-guidance-not-lawful/

At the beginning of June, the NPCC held a meeting with external stakeholders with a view to revising the guidance.

Together with Fair Cop we will be making a written submission.

Yes - the website, together with our vimeo, will remain up as a resource.

We consider this document to be directly relevant to current NPCC work. We believe it is urgent & important.

However, we have unable to get this in front of the NPCC, College of Policing, HMICFRS, individual PCCs, parliamentarians (including those who are "GC"). Again, this is because of our diminished & ever-diminishing reach.

After our closure at the end of this month, this document will remain relevant.

Please use it.

For some protected characteristics, our guidance is identical, or very similar to that produced by the NPCC. However, in respect of other protected characteristics, our guidance differs considerably. Where we take a different approach, it is because we have sought to ensure that the question asked directly is informed by the relevance of data to offending and the requirements of policing and/or relates to the definition of the protected characteristic in the Equality Act 2010. Any deviation from the question formulated by the NPCC will reflect that.

Our guidance embodies the core principles.

The adoption of core principles aims to achieve a balance between the legitimate function of the State to capture core data about its citizens and the relevant privacy rights of individuals. In the context of policing, the State also has a legitimate function to protect citizens from crime: the aim is to produce accurate, relevant and reliable data on offending to support the analysis of patterns of offending, pathways into offending and risk, and to facilitate data accuracy across the criminal justice system that is of relevance and utility to service development and management. Accurate, relevant and reliable data on offending is a legitimate public interest: data recorded must meet the operational needs of policing and the criminal justice system.

• Policing adopts a national standard for the recording of all protected characteristics that meets the operational needs of policing and the criminal justice system.

• As far as possible, the policing data recording standard aligns with existing national data recording standards. However, divergence is both justified and required where necessary to meet the operational needs of policing and the criminal justice system.

• The context within which policing should record each characteristic should be determined with reference to meeting the operational needs of policing and the criminal justice system and national guidance provided.

• Standards should be annually reviewed to ensure that they continue to be align with core principles, and with the operational needs of policing and the criminal justice system.

• Language used in the collection and reporting of protected characteristics must be clear to avoid ambiguity and confusion among respondents and data users, which can undermine data and analytical quality, as well as belief in the validity and reliability of data.

In 2023 the NPCC @PoliceChiefs produced a Protected Characteristics Operational Recording Data Standard. This is intended to guide forces in their data collection practices, including for crime & incident reporting.

We found it, somewhat lacking & misleading, to put it mildly. In December 2023 we published our own PC Operational Recording Data Standard for Policing.

You can read it here:

https://kpssinfo.org/protected-characteristics-operational-recording-data-standard-for-policing-pdf/

Our intention was to conduct this exercise on an annual basis, asking the same set of FOIAs to police forces nationally. Of course, that will now no longer be possible.

We have been unable to get these reports in front of the NPCC, College of Policing, HMICFRS, or in front of the vast majority of Police & Crime Commissioners, despite persistent attempts. Sadly, the overwhelming majority of parliamentarians, including those who would describe themselves as "GC", now show very little interest in our work.

We simply no longer have the reach in 2024 that we had in 2021.

Our work will remain relevant even after we close. Please use it.

Sex registered at birth is a fundamental demographic and explanatory variable which is established throughout the criminal justice system as important to analysing patterns of offending, pathways into offending and risk. These differences between males and females underpin policy and practice throughout every aspect of the criminal justice system.

Despite the recognised importance of sex registered at birth, the Home Office does not currently mandate how police forces should record a suspect’s sex. Freedom of Information Access Requests indicate that many police forces in England and Wales record suspects’ gender identity in lieu of sex registered at birth, frequently on the basis of self-identification and including where the suspected offence is rape. Some forces stated that they record the sex of a suspect who identifies as non-binary as indeterminate, unspecified or other.

Offending patterns differ significantly between males and females with males committing the large majority of offences. Some offence categories are very rarely committed by females. This means that the allocation of even one or two cases of male offending to the female subgroup, on the basis of the suspect’s gender identity, may have a significant impact on the data, compromising both its reliability and its utility to service development.

The data recording decisions made by individual police forces affect the criminal justice system more widely. This is because data collected by police forces are transferred over onto other data management systems, including the Police National Computer (one of the main sources of information for Disclosure and Barring Service checks), the Annual Data Requirement (provided to the Home Office for research and statistical purposes) and Magistrates and Crown Courts case management systems. The decisions police forces make concerning data recording are key.

Guidance issued by the College of Policing, HM Inspectorate of Constabulary and Fire & Rescue Services and the UK Statistical Authority recognises the importance of sex, its significance to policing and the need to record sex as one of the protected characteristics in the Equality Act 2010 for reasons that include forces public sector equality duty and other legal obligations under the Equality Act 2010.

There have been moves issue guidance that mandates that sex registered at birth be overwritten by gender identity only where the suspect (or victim) has been issued with a GRC. We do not view this as a victory or an acceptable temporary compromise. In fact, this will create additional difficulties. Currently we are dealing with the recording decisions made by individual forces, which are not backed up by policy or guidance. Any guidance that mandates forces to record legally recognised acquired gender in lieu of sex registered at birth will make tackling the recording decisions of police forces much more difficult. Of course, this also has an impact on GRA2004 as it bolsters the significance & importance of a GRC.

Accurate, relevant and reliable data on offending is a legitimate public interest. The evidence overwhelmingly demonstrates that the interests of data collection are best served when police forces collect data on suspects’ sex registered at birth. Our recommendations in the accompanying Report are grounded in the collection of data on the protected characteristics in the Equality Act 2010. These include that the Home Office issue clear centralised guidance which mandates police forces to record suspects’ sex registered at birth: the lawfulness of this is clear, including where a suspect is in receipt of a gender recognition certificate.

An important part of our work on policing has been holding forces to account regarding data collection.

In 2022, we published our first report on how police forces in England & Wales record suspects' sex in crime & incident reporting.

You can read that report here:
https://kpssinfo.org/kpss-police-recording-sex-2022-pdf/

We produced a Supplementary Document on Police Scotland which you can read here:
https://kpssinfo.org/how-police-scotland-records-suspects-sex-pdf/

In 2023 we published our report How Police Forces in the United Kingdom Record Suspects' Sex in Crime & Incident Reporting; 2023 Update. This included data for Police Scotland and Police Service Northern Ireland. You can read it here:
https://kpssinfo.org/how-police-forces-in-the-uk-record-suspects-sex-2023-update/