Constance defends Police Scotland sex and gender policy
Last weekend, in The Herald on Sunday, a senior Police Scotland source accused the force of creating a 'culture of fear', where staff felt unable to raise concerns about how to record the sex of transgender suspects.
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The whistleblower claimed that officers were being instructed to search and record individuals 'as they present', even though no formal policy to that effect appeared to exist.
She warned this could result in rapes committed by men being recorded as having been carried out by women — a scenario she described as 'unbelievable' and deeply traumatic for victims.
On Tuesday, Scottish Labour MSP Pauline McNeill raised The Herald on Sunday's report in Holyrood, saying there was 'clear confusion' in the force due to the lack of official guidance.
'Many staff say they have to record someone — and indeed search them — based on how they present, even if that is the moment of arrest,' she said. 'It appears there is no official guidance, so staff are left to navigate sensitive and legally significant decisions without it.'
She asked the Cabinet Secretary whether she was not 'concerned about the apparent lack of clarity being experienced by officers on the front line about how to record the sex and gender of suspected serious sexual offenders.'
Ms Constance said: 'I do believe that there currently is clarity.' She also pointed to the comment given to The Herald on Sunday by the force, which said the whistleblower's account was 'inaccurate and misleading.'
Ms McNeill said the force had offered contradictory explanations. While Chief Constable Jo Farrell told the Scottish Police Authority in September last year there was a clear approach, she said in a letter to her and in press reports, they had 'indicated since then that there is no set policy on how to record sex and gender of individuals.'
The force is reviewing how it records sex and gender, and the Justice Secretary said this would take full account of the UK Supreme Court's landmark ruling on the definition of 'sex' in the Equality Act — which confirmed it means biological sex.
Ms McNeill urged the Cabinet Secretary to engage directly with the force: 'Surely she must have a discussion now with Police Scotland about how they are recording sex when it comes to sexual crime, and that there is clarity for police officers on the front line?'
Ms Constance replied that the Chief Constable had already given clear public assurances, and that Police Scotland would also consider forthcoming guidance from the Equality and Human Rights Commission (EHRC), which is currently under review.
Tess White, the Conservative MSP for North East Scotland, accused Police Scotland of 'kicking the can down the road.'
'The force provided assurances to the Scottish Police Authority that the timeline for review does not preclude any immediate improvements identified and required to internal practice or policy, and that is in stark contrast with the meeting the Cabinet Secretary herself held with the Chief Constable on 30 April in which she emphasised that Police Scotland must await EHRC guidance on the Supreme Court ruling.
'Will her government now get off the fence and finally issue an urgent directive to public bodies to comply with the law and put an end to this mess?'
Ms Constance said ministers were already taking action by working to ensure public services would be in a 'state of readiness' to respond to the EHRC guidance when it is finalised.
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Speaking after the debate, Ms McNeill said she found the minister's answer 'disappointing.'
'The Government is responsible for this confusion — it is too important for them to leave to another review. If they support my view on data that the sex of the offender should be recorded then they should act to clear up the confusion.'
Fraser Hudghton, from the Free Speech Union, said: 'The Justice Secretary's response in Parliament does not cut it. She is either being misinformed by the leadership at Police Scotland who have lost all control, or she is playing fast and loose with the facts.
'We know from serving officers and staff that police leadership are in thrall to 'woke' policies that originated from the SNP Government, regardless of what that means for data collection or the effective prosecution of criminals. It has to stop.'
A spokesperson for Police Scotland previously told The Herald on Sunday: 'It is inaccurate and misleading to suggest a male accused of rape would be recorded as a woman. It is inaccurate and misleading to suggest female officers and members of staff are coerced into carrying out intimate searches on male prisoners.'
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