Humza Yousaf said Police Scotland required no evidence of gender other than a person’s self declaration unless it is “pertinent” to a criminal investigation they are involved in.
SNP MSP Joan McAlpine who asked a question on the issue at Holyrood said the justice secretary’s answer would leave many people “shocked” and could lead to concerns over the accuracy of recorded crime statistics.
Asked whether Police Scotland and the courts record incidents based on a suspect’s birth sex or by self-declaration, Mr Yousaf said: “With regard to victims, witnesses and suspects, Police Scotland and the Scottish Courts and Tribunals Service record incidents according to a person’s self-identified gender.
“Police Scotland require no evidence or certification as proof of gender identity other than a person’s self declaration.
“Unless - and I think it’s important to emphasise this - it’s pertinent to any criminal investigation with which they are linked and it is evidentially critical that Police Scotland legally require this proof.”
Ms McAlpine responded: “I thank the Cabinet Secretary for that answer, but I think many people will be shocked to hear it.”
She said research from elsewhere had shown that male offending remained the same even if men self-declare themselves to be women and said criminologists had expressed concerns about “misleading” data.
She said: "The Cabinet Secretary will be aware that offending rates vary significantly according to biological sex, with males accounting for 84 per cent of violent crime and more than 95 per cent of sexual crime.
"Longitudinal studies (carried out) elsewhere suggest male-pattern offending remains the same even if men self-declare themselves to be women. So does the Cabinet Secretary agree with criminologists that it is misleading if data shows a rise in female sex offending, for example, including rape, when these crimes are actually committed by men?”
Mr Yousaf said there was no pattern of men self-identifying as women “to either commit sexual offences or indeed to manipulate statistics”. But he said he was willing to look at the issue in more detail.
“I meet with criminologists on regular occasions and none of them have raised this issue with me," he said. "If we should have an unexpected result, such as a rise in the number of women committing sexual offences, we would of course investigate further."
Richard Garside, director of the Centre for Crime and Justice Studies, said: “I’m glad the justice secretary is open to learning more. It’s really important that crime statistics are based on objective criteria, independent of the persons subjective views and feelings. Classifying according to birth sex, rather than subjective feelings about the self, should therefore be the norm.”
"Asking about gender identity alongside classifying by birth sex might be the best compromise. It would also offer useful additional information to help us understand patterns of offending."
Lisa Mackenzie, of analysis group MurrayBlackburnMackenzie, added: "It is very rare for women to commit certain offences, such as sexual and serious violent crimes.
"Recording based on self-declared gender identity in such cases risks skewing official statistics, damaging our ability to properly document, analyse and understand such behaviours.
"The introduction of unregulated self-identification principles into the criminal justice system deserves proper democratic debate and oversight, and the Scottish Government should share any analysis on which it is basing its view that the impact of this change will not be significant."