Scottish Census officials have been told by the Equality and Human Rights Commission that requiring transgender people to accurately record their sex in the Census does not breach their right to privacy.
Next week, Scottish Ministers will be in court defending their decision to allow people to choose their own sex in the Scottish Census, rather than what’s written on their birth certificate or gender recognition certificate.
Feminist group, Fair Play For Women, has been granted a judicial review of the Guidance accompanying the question “What is your sex?” that says “If you are transgender the answer you give can be different from what is on your birth certificate. You do not need a Gender Recognition Certificate”.
Fair Play For Women argues such Guidance is unlawful because the meaning of “sex” in the Census is a question of law and not a matter on which Scottish Ministers can simply take a view on.
The English High Court ordered similar guidance produced by the Office for National Statistics (ONS) to be taken down just days before Census Day for England and Wales in March 2021.
Scottish Trans Alliance – part of the Scottish LGBTI organisation called Equality Network – has been given permission to act as a third-party intervener next week to provide evidence to the court in support of the Scottish Government.
On its website Scottish Trans Alliance states that “if FPFW are successful, the change to the guidance they want to see would breach trans people’s human rights to dignity and privacy.”
However, the Equality And Human Rights Commission (EHRC) disagrees there would be any breach of human rights by the Census saying that “collecting data on sex and trans status is likely to be justified”
It can now be revealed that the Chief Executive of the EHRC wrote to the Registrar General of Scotland just days before the legal challenge was launched. The letter says the Commission is updating the advice “following the Judicial Review ruling earlier this year that led to the Office for National Statistics to change their guidance on the collection of data on sex and gender in the census in England and Wales.”
Dr Nicola Williams, Director of Fair Play For Women says:
“There is now a separate question specifically for transgender people to register their identity in the Census. There is no need to answer the question about sex with a gender identity too”.
“Sex and gender identity are different characteristics and should not be conflated in data collection. Everyone has a sex in law, including transgender people and both piece of information should be accurately captured by the Census”.
“Accurate recording of sex matters. The High Court in England backed our position, and we are confident that the Scottish court will see it the same way.”
“It is outrageous that Census officials ignored the advice of Equality And Human Rights Commission. Scottish Ministers are now risking taxpayers’ money to justify their unlawful position in court”
“More public funds are being wasted by a Government-funded transgender lobby group to shore up the Governments position. Meanwhile, it’s been left to ordinary women to defend the integrity of data in the Census and the meaning of ” sex” in law.
The case will be heard at the Scottish Court of Session on 2nd February.