An MP and former Scottish justice secretary has condemned the "absurdity" of police recording rapists as women if they "identify as a female".
East Lothian MP Kenny MacAskill wrote to Police Scotland to ask how it would record sex crimes if the new Gender Recognition Reform Bill in the devolved Holyrood parliament becomes law.
In a letter seen by The Scottish Sun on Sunday, assistant chief constable Gary Ritchie said a rapist is recorded as a woman "where a person born male obtains a full gender recognition certificate and then commits rape" and "where a person born male but who identifies as a female and does not have a full GRC...commits rape".
A Gender Recognition Certificate is the legal document which grants a transgender person the legal status of a member of the opposite sex. To qualify, individuals must first obtain a medical diagnosis of gender dysphoria and live as a member of their assumed sex for two years — but do not have to undergo gender reassignment surgery.
“As a lawyer for 20 years and justice secretary for almost eight, I’ve seen some legal absurdities," MacAskill said. "But this tops it all and is dangerous".
Under the law in England and Wales, an individual is guilty of rape if "he intentionally penetrates the vagina, anus or mouth of another person with his penis" without their consent.
In Scottish law since 2009 "he" has been replaced by "a person with [a] penis", but still specifies penetration with male genitalia — meaning only a biological man who has not undergone gender reassignment surgery can commit rape.
Classing a rapist as a woman is "physically impossible and is about dogma overriding common sense," MacAskill stressed. "Women prisoners are being harmed by this and vital crime statistics rendered useless".
Police Scotland confirmed that it was already allowing criminals to claim trans status without a GRC.
"The sex/gender identification of individuals who come into contact with the police will be based on how they present or how they self-declare, which is consistent with the values of the organisation," said Detective Superintendent Fil Capaldi, head of the force's human trafficking unit.
"Police Scotland requires no evidence or certification as proof of biological sex or gender identity other than a person’s self-declaration, unless it is pertinent to any investigation with which they are linked".
MacAskill defected from the Scottish National Party (SNP) in march to join Alba, the split led by former SNP leader Alex Salmond — who left the party after First Minister Nicola Sturgeon pursued sexual harassment and rape claims against him. Those allegations have not been proven.
The SNP, which leads the devolved Scottish administration in a coalition with the Scottish Greens, is attempting to change the law to allow transsexuals to access single-sex spaces like toilets, changing rooms and prisons on the basis of self-identification alone.
That has drawn criticism from feminists who point out that sex offenders have already taken advantage of similar rules.
A change of policy by HM prison service in 2016 after Tara Hudson, a self-identified trans woman who had never obtained a GRC, was sent to a HMP Bristol men's prison in 2015 after headbutting a bar manager during a fight in a pub on Boxing Day 2014. Hudson claimed to have been sexually harassed in jail.
But just nine months after new rules came into effect on January 1, 2017, convicted child molester Steven Wood, now identifying as Karen White, was placed in HMP New Hall women's prison in Yorkshire while awaiting trial for rape. While inside, he raped, sexually assaulted and injured two women prisoners in September and October of 2017, before being moved to a men's prison.
Prosecutor Christopher Dunn questioned Wood's trans identity in court, saying: "the reason for the lack of commitment towards transitioning is so the defendant can use a transgender persona to put herself in contact with vulnerable persons she can then abuse".
In October, Home Secretary Priti Patel ordered an end to the practice of recording crimes committed by transsexuals under their assumed sex.