The Scottish Government must go to court to defend its decision to change the meaning of “sex” in the Scottish Census.
Women’s campaign group, Fair Play For Women, has served a petition for judicial review of the official guidance that will accompany the question “What is your sex” in the 2022 Census.
The unlawful Scottish guidance includes the fact that people may self-identify when answering the sex question in the census. It 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 (GRC)”.
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.
Dr Nicola Williams, Director of Fair Play For Women, said:
“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”.
The Census Act 1920 is a Westminster statute with application across Scotland, England, and Wales. The 1920 Act permits the holding of censuses and includes “sex” as one piece of information that must be asked. In its petition for judicial review Fair Play For Women argues that:
“What is meant by “sex” in the 1920 Act is a matter of statutory interpretation, and as such is a question of law. There is nothing currently in law that permits any form of self-identification to affect one’s legally-registered sex.”
“On 16 March 2021, the Administrative Division of the High Court of England & Wales issued a declaration by way of consent order in the matter of Fair Play For Women v UK Statistics Authority and the Minister for the Cabinet Office. That declaration was in the following terms: “IT IS HEREBY DECLARED THAT “sex” in paragraph 1 of the Schedule to the Census Act 1920 … and the “What is your sex” question in Schedule 2 to the Census (England) Regulations 2020 means sex as recorded on a birth certificate or Gender Recognition Certificate”.
“A declaration by way of consent order in England & Wales is sufficient to form a determination in law. There is no compelling reason that paragraph 1 of the schedule to the 1920 Act should be interpreted differently in Scotland than in England & Wales”.
“The Guidance authorises and approves conduct which could amount to an offence under the 1920 Act. The Guidance is therefore unlawful and should be reduced as sought by the petitioner”.
National Records for Scotland (NRS) have so far refused to withdraw the guidance, insisting it is not unlawful and ignoring the findings of the High Court earlier this year.
“NRS consider that the published guidance relating to Scotland’s Census 2022 in its current terms is not unlawful, and that the section relating to the question of “what is your sex” will not be withdrawn and re-worded.”
The interim conclusion of the High Court of England and Wales was in respect of the census in England and Wales only, and was not binding on Scotland”.
Dr Nicola Williams, Director of Fair Play For Women, said:
“There are huge differences between males and females in the UK, in critical areas such as crime statistics. That’s why 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.”
“The ONS wasted over a hundred thousand pounds of tax payers’ money in a desperate attempt to defend their unlawful position in court. It is beyond belief that the Scottish Government is now repeating this reckless act and forcing ordinary members of the public to go to court once again.”“Extreme gender ideology is deeply embedded within the Scottish Government, and promoted at the highest levels including the First Minister. Winning this action will constrain the Scottish Ministers’ pursuit of their ideologically-driven agenda with no regard for Scottish women or long-standing UK laws. Pressing on with an unlawful definition of sex in the Census is a political act that is particularly harmful to women and girls in Scotland. We will not stand by as the meaning of sex is erased”.
The NRS has defended its decision by saying “This guidance is the same as that discussed with the Parliament when the census legislation was agreed. However, in 2019 Scottish Minister, Fiona Hyslop, had placed an amendment before the Scottish Parliament to expand sex to include “and gender identity” but was ultimately unsuccessful.
During pre-legislative scrutiny the parliamentary committee said “the way the term ‘gender identity’ has been used in the Bill has created confusion and a perception that “sex” is being conflated with “gender identity”. It was removed from the bill, leaving the mandatory sex question unchanged. The NRS has recently confirmed “there is no intention to introduce further legislation for the 2022 Census”.
“What is meant by “sex” is a question of law – and not simply a matter on which the Scottish ministers can simply take a view. If Nicola Sturgeon wanted to change the definition of sex in the Scottish Census she should have convinced her own parliament its the right thing to do. Her ministers tried but failed to do so.
She does not have the power to make up her own definition and force it through regardless. That’s not how democracy works. We are bringing this legal action to defend the rights of women and girls in Scotland”.
In addition to the longstanding question “What is your sex?” the Scottish Census will, for the first time, have a separate question that asks “do you consider yourself to be trans, or have a trans history?”. Dr Williams said:
“I welcome the addition of a new and discrete question about transgender identity. The trans community should be counted and that information is important and useful. Accurate data on sex is also important, particularly for women and girls. There is no good reason why both questions should be used to record gender identity.”
“Sex and gender identity are different characteristics and should not be conflated in data collection. Everyone has a sex in law, including transgender people. Both pieces of information should be captured by the Census”.
Fair Play For Women has instructed top Scottish advocate Roddy Dunlop QC, Dean of Faculty of Advocates, to fight the case in the Scottish Court of Session. Once permission is granted by the Court in early January an expedited hearing is likely to be held in February so an order from the court can be made before the Census opens at the end of that month.
David Welsh, junior Counsel for Fair Play For Women, has advised in his written opinion:
“In terms of overall prospects, my view is that Fair Play For Women has a strong argument. It is my view that the argument is more likely than not to be successful.”
“It is not the role of the registrar to interpret the legislation and bind others to that interpretation. That is the role of the court.”
“The law must be construed by what it says and not by a gloss placed up on it by a non-legislative document.”
Dr Williams is available for interview and comment. Email: [email protected]DONATE NOW
Frequently asked questions:
What questions will be asked in the 2022 Census in Scotland and what guidance will accompany them?
QUESTION 3: What is your sex? Female or Male
The Guidance accompanying the sex question is:
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 (GRC).
If you are non-binary or you are not sure how to answer, you could use the sex registered on your official documents, such as your passport.
A voluntary question about trans status or history will follow if you are aged 16 or over. You can respond as non-binary in that question.
QUESTION 4: Do you consider yourself to be trans, or have a trans history?
No or Yes, please describe your trans status (for example non-binary, trans man, trans woman)
Why does accurate recording of sex matter?
Data on sex matters. It matters most to women and girls. If we don’t have good data on sex we can’t monitor inequalities due to sex, and if we can’t measure it we can’t make good policies to remedy it.
It is sometimes assumed that the trans population is so small that the impact on data accuracy of replacing sex with gender identity will be negligible. However, we currently have no reliable data on the size of the trans population either in the population as a whole or within sub-groups such as university students, particular occupations, gay, lesbian and bisexual people, and people with particular health conditions. Crucially, it is impossible to predict how the trans population may change over time. It is unlikely that the trans population will be evenly distributed, for example by age, sex and geography. This means that the effects on data reliability are likely to be greater at the sub-group level.
There are clear and obvious distortive effects that can result from small misclassifications of sex data in areas where large differences between males and females exist, such as crime, education and employment. Three worked examples are described HERE.
Why does this issue need resolving in court?
Once the ONS was ordered by the High Court to change its guidance in March 2021 the Northern Ireland Statistics and Research Agency (NISRA) did the same for it’s own Census. This was in line with the principle of harmonisation agreed between the census authorities for each of the home nations in the UK. We wrote to NRS on 1st April asking them to confirm they too would harmonise regarding the sex question in the Scottish Census planned for March 2022. No such commitment was made. Four months later, on 31 August 2021, NRS informed us that the Guidance for the sex question was now published. It would be on the basis of self-identification.
We alerted the Office for Statistics Regulation (OSR) about the risk of unlawfulness. The Director General of the OSR wrote to the head of NRS, Paul Lowe, on 16 September recommending he should now “Identify and mitigate any outstanding risks to Census live operations in relation to this question in a timely fashion”.
In his response to OSR on 1 October, Paul Lowe did not address the matter of whether the Guidance was lawful, instead asserting that the decision of the High Court in England “was not binding on Scotland”.
We asked the OSR to intervene. On 10 November OSR told us it could not. Instead, the OSR confirmed the Code of Practice for Statistics requires organisations to ‘…manage data in ways that are consistent with relevant legislation…’ and that they will consider “concerns about whether legal requirements have been met” and how NRS has “acted in response to…any pending legal challenge”. Recommendations for National Statistics designation will happen just prior to the census output being published; for NRS that is likely to be early 2023.
As such, the only way to stop the unlawful Guidance in advance of the Census would be to once again seek an order from the Court. Fair Play For Women instructed solicitors to send a pre-action letter to NRS on 10 November informing them of our intention to initiate legal proceeding.
Please confirm that the guidance will be withdrawn and that the section relating to the question of “What is your sex?” will be reworded in order to make it lawful. We are instructed to request a response within seven days of this letter and to inform you of our client’s intention to initiate legal proceedings.
The NRS response was received 8 days later than requested on 25th November, just days before the deadline for initiating a judicial review.
“I write to confirm that NRS consider that the published guidance relating to Scotland’s Census 2022 in its current terms is not unlawful, and that the section relating to the question of “what is your sex” will not be withdrawn and re-worded.”
We immediately initiated legal proceedings. Our legal arguments were delivered to Scottish Ministers on 30 November and served on 2 December.
Who is Fair Play For Women and what do they stand for?
Fair Play For Women is a campaigning and consultancy organisation which works to protect the sex-based rights of women and girls in the UK. Our work is focused on understanding when and how gender- and sex-based rights conflict in law and policy making. We believe in compassion and fairness for all. We support the rights of trans people to live in safety and to be treated fairly. We also support the rights of women and girls, and this is our focus. Protecting these rights in law requires that sex is not conflated with gender identity.
Dr Nicola Williams is available for interview and comment and can be contacted on [email protected].DONATE NOW