On Friday 19 February FPFW sent a pre-action letter to the ONS for the purposes of the Pre-action Protocol for Judicial Review. The ONS is urgently requested, within the timescale set out, to agree to withdraw the sentence in the Guidance which concerns FPFW, identified in the pre-action letter.
It is proposed to challenge the final “What is your sex?” question guidance for Census 2021, published and made available to stakeholders by ONS last week on 12 February 2021 (“the Guidance”). FPFW’s concern is the sentence: “If you are considering how to answer, use the sex recorded on one of your legal documents such as a birth certificate, Gender Recognition Certificate, or passport”.
To state the obvious, this is a very urgent matter. Census day is 21 March 2021, and the Guidance may already be seen by those who will respond to the Census. If ONS is not prepared to take the action above, the matter will need to proceed to Court on an urgent expedited basis. In order for the relief sought to have meaningful effect, FPFW reasonably considers that the Court would have to hear a rolled-up hearing in this matter in the week preceding the Census, that is the week commencing 8 March. Naturally it will need to seek orders providing for a significantly abridged timetable.
Having regard to when the Court would need to hear the matter for the relief sought to be effective, FPFW requires ONS’s substantive response to this letter before claim, including specifically its decision as to whether or not it will take any of the action requested above, by 6pm on Wednesday 24 February. This allows ONS the best part of a week to consider the position, which is more than reasonable in the particular circumstances.
FPFW claims that the Guidance is unlawful and should be quashed by the Court if ONS persists in publishing the Guidance. Our legal grounds are:
The Guidance is unlawful because it misunderstands the law
FPFW’s primary position is that the Guidance is unlawful because it misunderstands the law. The law – in the Census Act 1920 and the Census (England and Wales) Order 2020 – provides for census data to be gathered in relation to a person’s “sex”. What is “sex” is a question of law for the Court to decide, not a matter for the ONS to decide for itself.
The Census Act 1920, Census (England and Wales) Order (2020/532) and the Census (England) Regulations (2020/560) legally oblige the ONS to ask the question “What is your sex”, and this year an additional question regarding gender identity. The ONS has no discretion as to the questions asked. Citizens are legally obliged to answer “What is your sex”. It is a criminal offence to refuse to answer or to provide a false answer. The legislation does not contain an express definition of sex, although it makes clear there are only two sexes, female and male. Citizen are not legally obliged to answer the question on gender identity.
FPFW will argue that it is very clear that “sex” does not mean, in that legislation, self-identified sex. It means birth sex; and the very most it could mean is sex as shown on a Gender Recognition Certificate (if a person has been issued with one), although FPFW does not accept that it means that.
The Guidance however advises respondents to the Census that they may provide their self-identified sex instead. It is therefore unlawful and should be quashed by the Court if ONS persists in publishing the Guidance.
The Guidance is unlawful because of the way it was produced
FPFW’s secondary position is that, even if the ONS was entitled to decide for itself what “sex” should mean, it adopted a process in connection with its decision which was unlawful for a number of reasons. We will argue that ONS has not complied with its public sector equality duty in the EqA, nor has it considered, reasonably or at all, the impact of its decision on the use of data collected.
It also adopted an unfair process, promising stakeholders including FPFW that it would allow them to see a review or evidence to support its proposed decision, but never made it available. Had FPFW been afforded an opportunity to comment on the relevant material, it would undoubtedly have pointed out flaws in it, as will be explained in evidence before the Court. It has been denied that opportunity, in spite of being specifically (and properly) identified as a stakeholder. The very purpose of identifying stakeholders is or ought to be to allow them meaningfully to participate and contribute to decision-making. Having embarked on that course, ONS was obliged to afford FPFW a fair opportunity to provide its views, but did not.
Court should quash the Guidance for those reasons also.
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