FOI/202600515858 · FOI · released
Clarification on the protected characteristics of offenders: FOI release
Information requested
In relation to data on the protected characteristics of offenders, there appears to be two issues.
Firstly, the data being gathered and published on the gender of offenders. Given the Supreme Court judgement of April 2025 clarified that sex in terms of the Equality Act 2010 was binary and biological, I am concerned to note that government is gathering data on ‘gender’ which is not a protected characteristic in the Equality Act 2010. Can you please advise why this is the case?
Secondly, I assume data gathering of this nature is also used by government as a check to ensure the justice system is not unlawfully discriminatory against people sharing a particular protected characteristic. That being so, the data gathering should seek to gather data on all protected characteristics of offenders, including sex, ethnicity, disability, and sexual orientation. Can you please advise why these data sets are not being gathered?
Response
I enclose a copy of all of the information you requested:
The answer to your first question:
In general, it is a matter for those relevant public bodies collecting information on sex and (or) gender to establish the best approach in their individual settings. This approach will rightly be shaped by how organisations operationalise both the wider legal context and associated guidance on collecting data about sex and gender. This approach is in line with the Chief Statistician’s guidance on the collection of data on sex and gender identity. This guidance is currently being reviewed in light of the Supreme Court judgment
The answer to second question:
Each justice organisation is responsible for determining the most appropriate approach to collecting data for its own purposes, in line with legal requirements The Equality and Human Rights Commission (EHRC) is the primary body responsible for managing, monitoring and enforcing the Equality Act 2010 which covers protected characterises in Great Britain, rather than the Scottish Ministers.
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