The Scottish Government has won its court battle over the definition of “sex” in the Census.
The Scottish Inner Court of Session has rejected an appeal by Fair Play For Women. The feminist group argued that the guidance is unlawful because the meaning of sex in law does not include any form of self-identification.
The Scottish Government’s guidance accompanying the sex question will remain in place “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).”
Dr Nicola Williams, Director of Fair Play For Women said
“We are disappointed with this ruling. It is bad news for the census and bad news for people in Scotland, especially women”.
“People have always known what sex means. But activists have targeted the meaning of the word sex, conflating it with feelings of identity. The confusion they have sown has now penetrated our institutions, including the judiciary, as this judgement shows”.
In a written opinion issued today by Lady Dorrian, the appeal court has confirmed that the mean of the word “sex” in Scottish law is context specific:
“In our opinion the Lord Ordinary was correct to hold that there is no universal legal definition of the word “sex” which applied by default.”
“There are some contexts in which a rigid definition based on biological sex must be adopted”
“There are other contexts in which a rigid definition based on biological sex is not appropriate.”
Dr Williams said,
“We welcome the court’s recognition that a definition based on biological sex must be adopted wherever it confers status or important rights. Our view is that this always applies where the word “sex” is used in law. If sex is mentioned in law it’s because it matters beyond the individual.
“Last Friday the appeal court in Scotland ruled that biological sex is what counts in improving women’s representation on public boards. It based this on what sex means in the Equality Act. Now the same court says sex in the Census Act can mean something different.
“We know sex matters, and so do the courts. But they decided that it doesn’t matter in the census. We disagree. Collecting accurate data on sex is important and matters most to women and girls. It underpins the research and policies needed to combat sexism. How can public authorities monitor and assess policies in line with the protected characteristics without counting sex?”
“We won on this same question in the High Court of England and Wales, and Northern Ireland fell into line. So for most of the UK population, sex in the census means the sex you were born. The only exception to this if you have been granted a Gender Recognition Certificate. Scotland wants to be different and that’s bad news for all of us”.
“The census is the basis of equality monitoring, and sex is a fundamental variable. It needs a clear meaning, in line with the Equality Act. Sex matters, including in the census, in Scotland, and everywhere else.”
The Scottish Census goes live on the National Records Scotland (NRS) website on Monday 28 February and will begin accepting Census returns ahead of “Census Day” on 20 March.
Dr Williams said “We are now considering the full judgment carefully before making any further decisions or steps”.
Notes for Editors:
The first instance judgement was issued on 17 February
Fair Play For Women was granted an appeal hearing on 23 February
The appeal judgment was issued on 25 February
Nicola Williams is available for interview and comment. Contact by email: [email protected]