Publication - FOI/EIR release

Questions concerning Disclosure Scotland applicant gender: FOI release

Published: 2 Mar 2020

Information request and response under the Freedom of Information (Scotland) Act 2002.

Published:
2 Mar 2020
Questions concerning Disclosure Scotland applicant gender: FOI release
FOI reference: FOI/202000015421
Date received: 10 Feb 2020
Date responded: 25 Feb 2020
Information requested

You asked for:

1. Please tell me for how long Disclosure Scotland has had in place a policy asking applicants who have changed legal gender (sex) to disclose their previous name and gender when applying for a disclosure.

2. Does Disclosure Scotland require sight of the applicant's Gender Recognition Certificate?

3. Does Disclosure Scotland undertake any investigation to establish whether any applicant may have changed their legal gender?

4. Since this policy has been in place, how many individuals applying for disclosure have informed Disclosure Scotland about a change of their legal gender?

5. How many cases have there been where Disclosure Scotland has discovered that an applicant has failed to disclose a past change of legal gender?

6. What are the consequences for an applicant failing to disclose a past change of legal gender?

Response

I enclose a copy of most of the information you requested.

The answer to your questions are:

1. There is no policy requiring applicants to notify Disclosure Scotland that they have changed their gender. All applicants are required to provide previous names known by when applying to Disclosure Scotland. To protect confidentiality, there is specific guidance for applicants who have changed gender on providing their previous names to Disclosure Scotland without putting this on application forms.

2. No, Disclosure Scotland does not require sight of the applicant's Gender Recognition Certificate.

3. No, Legal gender is not used to match applicants to criminal records.

4. As there is no policy requiring applicants to notify Disclosure Scotland that they have changed their gender, Disclosure Scotland does not hold this information.

5. As there is no policy requiring applicants to notify Disclosure Scotland that they have changed their gender, Disclosure Scotland does not hold this information.

6. There is no policy requiring applicants to notify Disclosure Scotland that they have changed their gender.

There are, however offences that apply to all disclosure applicants regardless of whether they have changed gender in the past in the past: Section 123(2) of the Police Act 1997 and Section 65(2)(a) of the PVG Act make it an offence for a person to knowingly make a false or misleading declaration or other statement for the purpose of obtaining a disclosure, so there is a legal requirement to give full details of all previous names. This information then allows Disclosure Scotland to track a person's identity; information about their gender (or change of gender) is not needed. A person who is guilty of an offence under these sections is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not to exceed level 5 on the standard scale (£5,000), or to both.

PVG Scheme

Section 33(1)(b) of the Protection of Vulnerable Groups (Scotland) Act 2007 provides that an individual who is listed, or whom Ministers are considering to list, must give Ministers notice of the issue of a full gender recognition certificate within one month of the issue of the certificate. Not doing so is an offence, liable on summary conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding level 5 on the standard scale, or to both.

Section 50(1)(b) of the Protection of Vulnerable Groups (Scotland) Act 2007 provides that a scheme member must give Ministers notice of the issue of a full gender recognition certificate within three months of the issue of the certificate. Not doing so is an offence, liable to fine not exceeding level 3 on the standard scale.

For the avoidance of doubt, neither of these duties apply to applicants for PVG scheme membership.

The Scottish Government does not have the information you have asked for because there is no policy requiring applicants to notify Disclosure Scotland of a change in legal gender. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.

Contact

Please quote the FOI reference
Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road
Edinburgh
EH1 3DG