• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer
Fair Play For Women

Fair Play For Women

  • Prison
  • Sport
  • GRA
  • Language
  • Changing rooms
  • Resources ▼
    • Take action! Here’s how
    • Key facts
    • UK law
    • Science
    • Sex vs gender
    • Consultation submissions
    • Materials
  • About Us ▼
    • Review of 2021
    • Our aim
    • Our beliefs
    • Our spokeswoman
    • Our history and achievements
    • Our supporters
    • News
      • Newspapers
      • TV Interviews
      • Radio interviews
    • Contact
    • Donate
You are here: Home / Law / Equality Watchdog issues updated advice on the collection of data on sex and gender.

Equality Watchdog issues updated advice on the collection of data on sex and gender.

1st February 2022 by FPFW

The Equality and Human Rights Commission (EHRC)’s new advice on the collection of data on sex and gender by public bodies presents a direct challenge to the Scottish Government.

In a letter to the Chief Statistician in Scotland, the Commission makes clear that it is perfectly lawful for the public sector to ask for someone’s sex when needed. It also reminds public bodies to collect data in line with the Census if they want to make comparisons.

This move represents a significant change to the advice given two years ago. In 2019 the Equality Watchdog was involved in the Scottish Government’s sex and data working group and provided a written submission setting out its position on the equality and human rights considerations of data collection on sex and gender.

The old advice was used by the Scottish Government to inform new guidance issued to all public bodies in September 2021. Instead of treating the protected characteristics of sex and gender reassignment equally, the Scottish Government guidance elevates concerns about privacy in relation to gender identity over the need to collect accurate data on sex. The guidance tells public bodies in Scotland that collecting data on sex would only be appropriate in a “small number of instances” and would be “on an individual basis for a very specific purpose”.

Fair Play For Women complained to the EHRC that the advice it had given to the Scotland Government in 2019 was misleading and needed updating following the judicial review ruling on the collection of data on sex in the 2021 Census in England and Wales.

The EHRC has now confirmed its Chief Executive wrote to the Chief Statistician for Scotland in November 2021 with updated advice to “reflect developments in the law in England and Wales”. 

The updated advice sets out the factors that public bodies should consider when collecting data on sex and trans status, so that they are compliant with equality and human rights law. Whereas the previous advice warned against asking about sex at birth on privacy grounds, the update makes clear that public bodies can ask questions about sex registered at birth or legal sex when needed.

The new advice confirms that while enabling people to self-identify their sex can sometimes be appropriate, this should not be at the expense of data integrity and usability.

“Public bodies are not always required to collect information on legal sex and can enable employees and service users to self-identify their sex, but only where this is suitable for the purposes for which the data will be used. The vital questions that public bodies need to address are: what will they be using the information they are collecting for; and will allowing respondents to self-identify their sex affect that?”

The EHRC also emphasised the importance of the judicial review in England if public bodies want to compare their data with the Census. In England, Wales and Northern Ireland this now means collecting data on legal sex. It is widely anticipated that a judicial review in Scotland this week will force the Scottish Census to do the same.

“Public bodies often compare their data to information collected through the census, so ensuring consistency of data over time may be a consideration when making such decisions. Following Judicial Review proceedings in March 2021 in the English and Welsh High Court, the Office for National Statistics updated their census guidance on how to answer the question ‘what is your sex’ to say that respondents should use the sex recorded on their birth certificate or Gender Recognition Certificate. Therefore if public bodies are comparing their data to census information, with the provisos noted above, it is likely to be appropriate to ask for information about legal sex”.

Despite receiving the updated advice from the Equality Watchdog over two months ago, the Chief Statistician for Scotland is yet to update his official guidance to public bodies. A link to the out-dated advice from the EHRC remains live on the Scottish Government website.

If Fair Play For Women wins its judicial review on the meaning of “sex” in Scotland the Chief Statistician will be under further pressure to revisit and amend his guidance to reflect changes in the law.

Tomorrow, Roddy Dunlop QC, Dean of the Faculty of Advocates, will argue in court on behalf of Fair Play For Women that the meaning of sex is a matter of law and cannot be self-identified. The Scottish Government is expected to argue that sex is an umbrella concept that now includes self-identity. This argument was rejected by Justice Swift when the Office for National Statistics made similar claims in the English High Court last year.

Dr Nicola Williams, director of Fair Play For Women said:

“Sex is a legally protected characteristic in the Equality Act. Public bodies need clear guidance that collecting accurate data on sex is still ok. It’s good to see the Equality and Human Rights Commission setting the record straight”.

“Muddling up sex with personal feelings about identity makes a mess of the data being collected. By all means enable people to record a gender identity if it helps to know it, but public bodies should collect accurate data on sex too. Good data on sex underpins good policy-making for everyone”.

“I hope our judicial review tomorrow brings much needed clarity about the meaning of sex in Scotland. But it beggars belief that Scottish Ministers are risking hundreds of thousands of taxpayers pounds to defend its ludicrous position that sex now means something different north of the border”.

The Court of Session in Edinburgh accepted Fair Play For Women’s petition for an expediated judicial review into the guidance accompanying the ‘sex question’ on the Scottish Census. The full hearing will take place on-line on Wednesday February 2nd. The Scottish ruling could be made as soon as next week, in advance of the Scottish Census launch date at the end of this month.

Read more:

Scottish Government In Court on 2nd February Over Unlawful Definition of “Sex” In Census

UK Equality Watchdog says asking Sex in Census does not breach human rights.

Filed Under: Judicial Review, Law

Primary Sidebar

Categories

  • Biological sex
  • Children
  • Gender Identity
  • Male violence
  • Scottish GRA reforms
  • Silencing women
  • Policy guidance

Our materials

  • Our factsheets
  • Our short films and animations
  • Our memes
  • Our research

Our latest articles

  • Sport policy: do we need more evidence?
  • UK Sport is recommending Inclusive Employers, whose report for British Triathlon was biased and wrong
  • Rugby Union and Rugby League do the right thing
  • Levelling down: How asking the wrong question led to bad sport policy
  • Penny Mordaunt claims “I’ve never supported self-ID”

Archives

Footer

Prisons, crime and protecting women

  • The facts about transgender prisoners
  • Prisons timeline – how did we get here?
  • Karen White & prison review
  • Sex attacks in female prisons
  • Refuge shelters deeply worried
  • How do women in prison feel about sharing with transgender prisoners?
  • Can you believe what you read about sexual and violent crimes?
  • The judicial review of prisons policy
  • Factsheets

Sport and the human body

  • Biological sex differences
  • Chromosomes, sex and gender
  • Sport policy – what now for UK sports?
  • Guidelines for single-sex sport policy
  • The science and statistics behind the transgender debate
  • Safeguarding in sport still matters
  • Male inclusion leads to female exclusion
  • What you can do

Making policy and the law

  • The Equality Act 2010 and women’s rights
  • GRA reform
  • Advice and guidance for policy makers
  • Changing room policy advice
  • What can I do now?
  • Take Action: Say NO to letting Sex Self-ID in through the back door.
  • Public opinion on the tension between women’s rights and trans demands

© 2022 · Fair Play For Women

This website uses cookies to improve your experience. We'll assume you're ok with this, but you can opt out if you wish. Read More

Accept Decline Cookie Settings
I consent to the use of following cookies:
Cookie Declaration About Cookies
Necessary (2) Marketing (1) Analytics (4) Preferences (0) Unclassified (4)
Necessary cookies help make a website usable by enabling basic functions like page navigation and access to secure areas of the website. The website cannot function properly without these cookies.
Name Domain Purpose Expiry Type
wpl_user_preference fairplayforwomen.com WP GDPR Cookie Consent Preferences 1 year HTTP
YSC youtube.com YouTube session cookie. 52 years HTTP
Marketing cookies are used to track visitors across websites. The intention is to display ads that are relevant and engaging for the individual user and thereby more valuable for publishers and third party advertisers.
Name Domain Purpose Expiry Type
VISITOR_INFO1_LIVE youtube.com YouTube cookie. 6 months HTTP
Analytics cookies help website owners to understand how visitors interact with websites by collecting and reporting information anonymously.
Name Domain Purpose Expiry Type
_ga fairplayforwomen.com Google Universal Analytics long-time unique user tracking identifier. 2 years HTTP
_gid fairplayforwomen.com Google Universal Analytics short-time unique user tracking identifier. 1 days HTTP
vuid vimeo.com Vimeo tracking cookie 2 years HTTP
IDE doubleclick.net Google advertising cookie used for user tracking and ad targeting purposes. 2 years HTTP
Preference cookies enable a website to remember information that changes the way the website behaves or looks, like your preferred language or the region that you are in.
We do not use cookies of this type.
Unclassified cookies are cookies that we are in the process of classifying, together with the providers of individual cookies.
Name Domain Purpose Expiry Type
_gat_UA-109881507-1 fairplayforwomen.com --- Session ---
GASessionCookie fairplayforwomen.com --- Session ---
rtc linkedin.com --- Session ---
_wpfuuid fairplayforwomen.com --- 11 years ---
Cookies are small text files that can be used by websites to make a user's experience more efficient. The law states that we can store cookies on your device if they are strictly necessary for the operation of this site. For all other types of cookies we need your permission. This site uses different types of cookies. Some cookies are placed by third party services that appear on our pages.
Cookie Settings