'Gender-specific offences' in the GRA 2004

[archery2]

Please could someone help me understand section 20 of the 2004 GRA, which covers gender-specific offences? Here's what it says:

(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.

I know that the 2004 GRA (section 9.1) says that people with a certificate become 'for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).'

Is this section 20, on gender-specific offences, basically saying that some gender-specific offences, eg rape, can still be committed, because for the purposes of committing the crime the person with the gender certificate is still considered to be their original (ie born) sex, not the acquired one?

Apologies for not understanding this, I just can't follow the language. I'm interested, because there's been talk of self-ID messing up the crime statistics. So I wanted to see what the current situation was legally.

It led me to wonder, if for the purposes of committing a gender-specific criminal act someone with a gender certificate is, nevertheless, treated as their born sex, are they treated as such if they are a victim of a gender-specific crime?

Here's police guidance for that section:

Sexual Offences Act 2003 Section 1 - Rape of a woman 16 years of age or over

This is an offence that can only be committed by a man on a woman as it specifies ‘of a woman with your penis’ as part of the offence.

Where an offender was a female at birth, but has since been legally acknowledged as a man by the application and grant of a Gender Recognition Certificate, he will have acquired the male gender at the time of the offence.

In this case he is quite capable of committing the offence of rape (subject to all other considerations) and the offence will still be complete as per Section 3(a) above.

Conversely, if a victim was a male at birth but had acquired the female gender at the time of the offence, and is raped by a male, then the offence is similarly made out as per Section 3(b) above.

It also follows that if a male rapes a woman and later the victim or the offender applies for and is granted a Gender Recognition Certificate changing their gender, the original rape is committed based on the gender at the time of the offence

www.lgbthistorymonth.org.uk/documents/ACPOGuideJul05.pdf

That last sentence is interesting given the media and the courts approach to 'respecting the pronouns' of male offenders. It is saying that the 'gender' of the offender is to be their birth sex at the time of the offence - even if they subsequently get a grc, it remains fixed; no rewriting history.

But it doesn’t address the scenario where a male bodied person with a grc (ie legally a woman) rapes a woman while legally a woman. I think the guidance assumes that all men who have a grc no longer have a penis, which is clearly not the case.

Well, in practice police are already recording crimes in the preferred 'gender' of the offender regardless of grc status which is why we now have several 'female rapists' in crime statistics.

So the justice system is not adhering to the guidelines anyway.

Thank you for these answers.

Fifi5000 that's because when the GRA 2004 was written it was intended specifically for post-op and soon to be post-op transsexuals.

I think the guidance assumes that all men who have a grc no longer have a penis, which is clearly not the case.

Seems that way, doesn't it?
And argh! I would not have interpreted it like the guidance notes did.

Well, in practice police are already recording crimes in the preferred 'gender' of the offender regardless of grc status which is why we now have several 'female rapists' in crime statistics.

We knew this would happen (female rapists, rolls eyes). Also, I cannot believe they would go along with the 'preferred gender' without a GRC. Like, why not just accept any random name the offender/suspect gives you, like Mickey Mouse? Just as legal as accepting 'preferred genders'.