Government Response

The Government responded to this petition on Thursday 14th October 2021

The Government does not plan to require biological sex to be recorded across the criminal justice system in this way. Policy is being developed in certain areas of demographic recording.

Policy responsibility for managing suspects and offenders is split between the Home Office (role of police) and the Ministry of Justice (courts, prisons and probation).

Currently, the Home Office does not centrally mandate how an offender’s sex or gender identity must be recorded by police. It is for each individual police force to decide what information to record. However, Home Office officials are working with the police to promote a standardized approach to recording basic demographic characteristics of victims and suspects of crime. This should bring greater accuracy and consistency of the recording of sex and gender identity.

Any such changes to police recording should influence how Her Majesty’s Courts and Tribunals Service (HMCTS) records offenders, since magistrates and Crown Courts use data supplied by the police.

Her Majesty’s Prison and Probation Service (HMPPS) record the legally recognised gender of prisoners (or best available evidence where this is not known). The gender a prisoner identifies as is recorded in addition to the legally recognised gender, where this is different, which makes it clear that this is not the person’s legally recognised gender.

Officials have noted that ‘biological sex’ has not been defined in the petition. If ‘biological sex’ is defined in terms of anatomy, or chromosomes, then there would be both ethical and logistical challenges for the police or the HMPPS in determining this for every arrested suspect or prisoner. For instance, it would not be appropriate for the police or HMPPS to physically examine every suspect/prisoner in order to determine ‘biological sex’ if it had one of these meanings. Accordingly, there are no plans for the police or HMPPS to record the biological sex of prisoners.

Assuming that ‘biological sex’ is defined as the sex a person is assigned at birth, HMPPS’s position is as follows. Most people’s legal gender will remain the same as their sex as recorded at birth throughout their lives. The Gender Recognition Act 2004 allows transgender people who have (or have had) gender dysphoria, and intend to live in their acquired gender for the rest of their life, to change their legal gender. They can do this by obtaining a gender recognition certificate (GRC), which is in effect a replacement birth certificate. Section 9 of the Act states that:

“Where a full gender recognition certificate is issued to a person, the person’s gender becomes 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).”

Where a prisoner has a GRC, HMPPS will continue to record their legal gender, in line with the law. HMPPS will continue to manage prisoners with GRCs according to the Ministry of Justice (MoJ) and HMPPS policy framework: ‘The Care and Management of Individuals who are Transgender’, which is available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/863610/transgender-pf.pdf.

Home Office