The Office for Statistics Regulation (OSR) has published new guidance on collecting and reporting data about sex and gender identity in official statistics. This follows stakeholder consultation and replaces the draft guidance published in 2021. Fair Play For Women, alongside others, participated as a stakeholder to ensure views regarding the need for accurate data on sex were heard and given due consideration.
While not perfect, we welcome this new guidance as a step forward to help protect the on-going production and integrity of official sex data sets in the UK. Our main criticism throughout the process has been that the emerging concept of “gender identity” has been given equal weight and prominence to the established, universal demographic variable of sex. While the guidance is clear that sex and gender identity are not the same and mustn’t be conflated, an opportunity was missed to confirm the primacy of sex.
Nevertheless, this guidance is a clear departure from the prevailing counter view that had been growing in recent years that “gender identity” is the most important characteristic and should override the accurate collection of data on sex. Examples of this ideological view were evident most notably in the development of the questions for the ONS Census 2021 and the guidance published in 2021 by the Chief Statistician in Scotland. Scottish data collectors were led to believe they should never ask about someone’s biological sex apart from in very rare and specific circumstances.
Extract from Sex, Gender identity, trans status – collection and publication guidance (Scotland 2021).
“Where it is not necessary and proportionate, a question requiring the disclosure of a person’s biological sex may be an unjustifiable breach of privacy: in some cases this would have the potential to reveal a trans history that otherwise a person may wish to keep private. In a small number of instances, it may be necessary and proportionate to require a person to answer a question on the their biological sex but this would be on an individual basis for a very specific purpose and it would be up to public bodies who need this data to develop the best approach to do this. The most likely scenarios where data on biological sex is required would be on a case-by-case basis in a medical context; in a criminal context where a serious sexual offence is being investigated.”
The fresh approach taken by the OSR is important because as the UK regulator it oversees the UK’s Code of Statistics, ensures compliance and has the power to accredit official statistics. This includes official statistics produced by the ONS and many other data producers across the whole of the UK, including in Scotland. We would now expect this 2024 regulatory guidance to trigger an urgent review of the out-dated guidance issued by the Chief Statistician in Scotland. The OSR has now written to the Chief Statistician in Scotland informing him that “We recommend you take account of these points in a future revision of your guidance.”
What this new OSR guidance is and is not:
The role of the regulator is to ensure official data collection adheres to the Code of Practice for Statistics. As such this guidance only sets out general principles and considerations regarding the collection and reporting of data about sex and gender identity. It does not endorse or prescribe which definitions must be used or which questions must be asked. Neither does it decide what is or isn’t lawful.
The Government Statistical Service (GSS), working with ONS colleagues, is responsible for providing information to data producers on harmonised standards for data collection, including definitions and survey questions. Work on developing the harmonised measures of sex and the standard for gender identity is currently paused, following intervention by Fair Play For Women and others. We argued that the OSR guidance must be finalised ahead of harmonisation and that the ONS must report on and learn from the mistakes made in their design of the gender identity question in the England and Wales Census 2021. The GSS now plans to provide an update on its priority areas once the Office for National Statistics’ (ONS) public consultation on the future of population and migration statistics in England and Wales has concluded. Fair Play For Women has engaged with this consultation and will continue to monitor developments in this area.
The Highlights:
This OSR guidance is aimed at the producers of official statistics. However, it is likely to be used by anyone working with data and statistics, both inside and outside government. You can read the full guidance here. Below are some of the most useful paragraphs you might wish to point out to data collectors if/when you see them doing something wrong.
Producers should be aware that an individual can change their sex listed on some documents to reflect their gender identity without changing their legally recognised sex with a GRC. These documents include a driving licence, passport, medical records, employment records or a bank account. Statistics producers should account for this when they are producing definitions and providing guidance to respondents on how they should answer questions on sex or gender identity.
It is useful to see this clarified in one place. The ONS tried to use “sex in passports” as part of its guidance on how to answer the Census 2021 question “what is your sex”. Few people know that the sex recorded on most ID documents can be changed on request. As such these documents are never proof of sex registered at birth.
Where relevant, producers should ensure that they are adhering to the Equality Act 2010 including the Public Sector Equality Duty for England, Scotland and Wales, and the Section 75 duties for Northern Ireland. Producers should be aware that sex and gender reassignment are protected characteristics as set out in the Equality Act 2010.
It is the responsibility of official statistics producers to determine whether there is a legitimate need to collect data about sex, gender identity, both or neither. Producers should also familiarise themselves with any legal obligations relating to their data collections, such as the Public Sector Equality Duty for England, Scotland and Wales, and the Section 75 duties for Northern Ireland.
Essential point here about the need to comply with the law. Acknowledgement that sex, not just gender reassignment, is a protected characteristics and Public Sector Equality Duty can apply to sex too. This means there will be occasions when sex must be collected. This is an important part of equality law. Not collecting accurate data on sex could unfairly discriminate against women and girls.
Producers should also ensure that they are adhering to the principles set out in the General Data Protection Regulation (GDPR) including data minimisation. Producers should be aware that information about an individual’s transgender status may be considered as special category data in some circumstances. Special category data must be treated with greater care than other types of personal data and can only be processed if one of the specific conditions in Article 9 of the UK GDPR is met (see the Information Commissioner’s Office (ICO) guidance on lawful basis on processing special category data).
….. producers should consider collecting information on both sex and gender identity data only if there is a clear user or legal need that cannot be met by collecting either data item individually. This is especially relevant where collecting a combination of sex and gender identity data means that producers are directly or indirectly collecting information on an individual’s transgender status which may be considered special category data in some circumstances.
While producers must take care around the collection of data revealing trans status, that does not mean sex itself is “protected information” or “special category data”. It is ok to ask everyone “What is your sex” or “what sex were you born” when needed. This is ordinary information that we all know about ourselves and others. Data collectors shouldn’t be nervous about asking a simple question about sex when they need to.
Statistics should be consistent and coherent with related statistics and data where possible. Producers should ensure that they are familiar with how producers of related statistics are collecting data about sex or gender identity. Where it is not possible to be coherent with related statistics and data, producers should give reasons for the deviation and explain any implications for use.
This is important. While this guidance doesn’t set out which definitions or questions to use it is clear that data sets should be consistent with others. The Census remains the gold standard for how to ask a question about sex. A clear question “what is your sex” followed by only two answers; male or female. Sex mean sex registered at birth or on a GRC. If a data provider deviates from this gold standard they should be challenged to explain and justify why.
Note: serious problems have been flagged regarding the gender identity question in the England and Wales Census. The OSR is yet to publish its full findings following its review of the ONS research. Until then the format of the gender identity question or conclusions derived from it should not be considered informative.
Producers should be aware that, when trying to capture information on small sub-groups of the population, there will be a greater impact of false positives, by which we mean when someone reports that they are part of the target group when they are not. The effect of these incorrect responses will be amplified in small groups which may then affect the quality of the resulting statistics. If the data are unlikely to be of sufficient quality to meet those needs, producers should consider whether it is appropriate to collect this data.
This is a very important addition to the guidance and an issue consistently raised by data academics, most notably Professor Alice Sullivan. You can read more about why it matters here. This work formed part of the expert evidence provided to the High Court for FAIR PLAY FOR WOMEN LTD v THE UK STATISTICS AUTHORITY (CO/715/2021).
There will be times where producers are not able to meet the needs of everyone who has an interest in the collection of data about sex or gender identity. For example, a survey may be collecting data about sex, but some respondents may report that they would prefer to provide their gender identity. We acknowledge that these situations can be difficult for producers to navigate and that there may not always be a clear answer that will meet the needs of everyone involved. This may be especially true for statutory data collections where there is little ability to change the collection. In these instances, producers should clearly explain why certain information is or is not being collected, including being transparent and open about their decision-making processes and the evidence and priorities used to inform their choices.
It is good to see it spelt out clearly here that trans lobby groups shouldn’t always expect to get their own way no matter how loudly they protest. Sometimes questions about sex will need to be asked because that’s the information needed. For example, a sports club clearly needs to collect data about sex registered at birth to determine eligibility for female competition or to monitor female participation rates. It’s ok for data collectors to say they need that information and reject calls to allow people to self-identify to make their sport “more inclusive”.
….producers should avoid collecting data or reporting on gender without clear guidance and explanation of what is meant by this term, as it is often unclear whether the aim is to collect information on an individual’s sex or gender identity.
As with data collection, users of statistics benefit when producers are clear about what is reported. Data about sex and gender identity should be explained and defined for the purpose of a particular set of statistics, and terms, including ‘gender’, should not be used interchangeably or as a substitute for each other.
Producers are told to stop using vague terms like “gender” without clear explanation of what they mean. This word has been used to hide the concept of gender identity in plain sight within many sex data sets. “What is your gender” has long been used as a polite way to ask about someone’s sex for many years, now we are being told that this means gender identity has always been asked about. This is false.
Producers should avoid using response options that might cause confusion by ensuring that they undertake appropriate question testing of respondent understanding and acceptability. Producers should ensure that the response options align with the concept that they are aiming to collect data on, for example, we would expect a gender identity question to provide response options that reflect that gender identity is not a binary concept.
We asked that OSR also include an example here about sex to make clear that they would also expect a sex question to provide response options that reflect that sex IS a binary concept. We are disappointed they did not take this opportunity to add this clarity. However, they did note that the binary nature of sex is confirmed in the terminology section. “When we use the term ‘sex’ in this guidance, we are referring to a binary variable categorised as female or male.”
Producers should consider whether they should provide additional response options which allow respondents to not provide a response, for example, where an individual would prefer not to say, or if an individual does not consider themselves to have a gender identity.
Good to see producers clearly told not to force everyone into declaring a gender identity. While everyone has a sex, only some people believe they have a gender identity.
Statistics producers should seek a wide range of users’ views and consider the different uses of their data. There are many ways to do this including: actively approaching users for feedback on proposals; publishing work plans; undertaking consultations; conducting research exercises; monitoring public debate; and considering advancements or developments in other areas of data and statistics provision.
We also recognise that the collection and reporting of data about sex and gender identity is a sensitive topic which presents further challenges for producers. It is important that producers understand the current wider societal issues and debates about sex and gender identity. When necessary, producers should access a range of expertise across the statistical system on these issues to support their understanding and decision making.
Years ago it was the norm that whenever an organisation wanted to review a policy on sex and gender they simply considered it a “trans issue” and therefore just consulted trans groups. This has led to bias and a lack of consideration of the needs of everyone else, particularly women and girls. The OSR could have been more explicit here, but they do make clear producers must consider the impact on everyone and find a wider range of stakeholders. There is no longer any excuse to exclude the views of women and girls.
In order to support our guidance material, we plan to include case studies which exemplify certain elements of the guidance. These cases will aim to give a high-level overview of some experiences from statistics producers. We are currently developing these case studies and hope to publish them in due course.
Sharing collective learning, alongside our overarching guidelines on Code compliance as it relates to this topic, helps support systemic improvements to the production of data and statistics that serve the public.
It is disappointing not to see example case studies published alongside this guidance. We were expecting to see them developed here and they would have added useful real-life context to this guidance. We will continue to push for examples, good and bad to be included alongside the guidance to highlight issues and support improvements.
We recognise that this is an evolving area, and we will keep this guidance under review and update when appropriate. We welcome feedback on this guidance from statistics producers and others at any time.
This guidance is not perfect and we expect significant issues will remain regarding the collection and reporting of sex. We will continue to monitor this area and report problems to the OSR when necessary. If you encounter a problem with how sex data is collected or reported please email details to [email protected].