As part of Sex Matters’ response to the Scottish Parliament consultation on GRA reform we raised security concerns. This has been reported in the Telegraph and the Times, and Maya Forstater had a Thunderer piece in the Times.
The involvement of the state with an individual’s identity is not intended as a feel-good exercise in validating “who they are inside”, but more prosaically, to reliably validate who they actually are.
Individuals can change their name, commonly through marriage and adoption, or just because they wish to, and can keep information about themselves private in many situations, but there are situations where we need to prove our identity: the basic facts of being a particular individual whose mother gave birth to us on a particular date in a particular location.
As well as “natural persons” the state also registers “corporate persons”: companies that have a life of their own. Identifying the people behind shell companies is a critical safeguard against enabling wrong-doing such as money laundering, tax evasion, bribery and corruption.
Many small states have become a haven for providing anonymous “shell scheme” identities of the corporate kind. Scotland is one of them. Scottish limited partnerships, a business structure established in the early 20th century for farm holdings, became the key vehicle for the “Russian Laundromat” scheme used to launder more than $20 billion from Russia between 2010 and 2014.
Money-laundering schemes typically exploit legislative loopholes in several countries, taking advantage of lax pieces of legislation in different places and layering them behind a front company that looks legitimate and trustworthy.
Alison Thewliss, the SNP MP for Glasgow Central, and Ian Blackford, SNP leader at Westminster, have recently called on the UK government to clamp down on Scottish limited partnerships.
But the SNP and the Scottish Green Party are also busy developing a new loophole for personal identity laundering in Scotland.
Scotland’s sex-change loophole
The Gender Recognition Reform (Scotland) Bill proposes to carve out the process of legal sex change in Scotland from the safeguard of medical diagnosis and treatment that remain in place in the rest of the UK, and set it up as a haven of fly-by-night “self-identity” within the otherwise respectable-looking Gender Recognition Act.
Anyone over the age of 16 who is “ordinarily resident” in Scotland (which can mean enrolled on a course, or renting a bedsit) will be able to apply for a gender recognition certificate on the basis of a self-declaration that they have been “living in the other gender” for three months. After a further three-month waiting period they will receive their new legal identity.
This new identity comes with an extraordinary state-sponsored invisibility cloak, comparable to going into witness protection.
It is an offence under the Gender Recognition Act for a person who has acquired “protected information” through the course of their job about a person with a gender recognition certificate to disclose that information to any other person. That information includes their actual sex, and their previous name. The information can be legally disclosed only under very limited circumstances such as with a court order, or in the course of preventing or investigating crime. Secrecy is enforced in most professional situations, including giving personal references.
The interaction of this with processes for “safer recruitment” – designed to prevent unsuitable people gaining employment that gives them access to vulnerable people – is a real concern.
Undermining safeguarding due diligence
If an employer needs to apply for a criminal record check from the Disclosure and Baring Service (DBS) or Disclosure Scotland this usually requires that the person being checked discloses all their previous names and addresses. But if an applicant has a GRC they can make use of the “Sensitive Applications Process” whereby they disclose these details only to the Disclosure service, and not to the organisation they are seeking to be employed by or volunteer with.
This means that organisations will not be able make use of their own information and safeguards. Organisations like the Scout Association keep their their own databases which include concerns reported within the organisation. Other institutions and regulatory bodies similarly keep databases of “red flag” concerns about inappropriate conduct. A GRC removes the ability to check whether a person already appears in the organisation’s own safeguarding database, and makes the taking of references unreliable.
These issues already exist with the GRC regime, but people accessing this secrecy are currently only able to do so on the basis of two doctors’ reports.
Under the proposed new Scottish law the legal invisibility cloak would be awarded based only on a self-declaration. Furthermore a proposed change in wording means a person’s sex becomes secret not when they receive a GRC, but when they apply for it. And after they apply for it they can decide to remain in limbo for up to two years, neither confirming nor rejecting the new identity, but gaining the benefit of criminal sanctions against any professional who mentions their sex.
And once a gender recognition certificate is confirmed, there is nothing to stop a person repeating the process: making another statutory declaration and adopting another new identity that aligns with their biological sex, but has no link to either of their previous identities.
The opportunity for this personal shell scheme to be misused by people who want to conveniently sever the link between themselves and their past should not be dismissed.
The provision of criminal penalties for making a false declaration are no protection at all, since there is no way of saying that a person’s declaration of their gender identity is not deeply felt, nor that they should not be allowed to change their mind about something so subjective. The current Gender Recognition regime already allows that being a convicted rapist and retaining your penis is no bar to your transition to “being a woman” being genuine and worthy of being validated in law and by officialdom.
An open door
The proposed new Scottish Law also offers a more liberal regime for recognising gender recognition undertaken abroad. Currently the UK will recognise legal gender recognition certificates (or new birth certificates) from a list of “approved jurisdictions” that have similar safeguards.
The Scottish Bill sweeps away the approved list of jurisdictions for Scotland, and promises to recognise gender recognition from any country. It even allows an applicant without any evidence of gender recognition from another country to make a statutory declaration that their gender has been changed but there is no available evidence.
It then expects England, Wales and Northern Ireland to accept the “Gretna Green” sex change as if it had the same validity as the more robust process in the rest of the UK.
Other states such as Malta and Switzerland have adopted self-identity, but their role as international havens for personal identity secrecy is restricted, as they only offer no-questions-asked legal sex-change to their own citizens. Ireland has adopted the laxer “ordinary resident” approach proposed in Scotland.
None of this is to say that the people campaigning for gender self-id in Scotland wish to see it used for harm. But the risk of poorly conceived legislation enabling anyone with a year to spare to effectively craft their own identity disappearance scheme should not be dismissed.
The farming families for whom Scottish limited partnerships were established could not anticipate how the same structure would be used by highly motivated people to launder hundreds of billions of roubles from Russia.
We must anticipate the mischief that may be managed by criminals and child abusers, given the offer of a cheap and easy cloak of invisibility.