The UK is losing robust data on sex. The framing of the sex question in the 2021 census was about to make the situation worse. In spring 2021, we took the Office for National Statistics to court and won. A High Court order made them change their flawed guidance on how to answer the question, ‘What is your sex?’ to comply with the law and stop self-ID by the back door. Here’s the full story.
The national population census in England and Wales takes place every ten years. For the past few years, both expert data users and feminist groups have been taking a close interest in the sex question and how this is framed. The question itself simply asks, as it always has, ‘What is your sex?’ with male/female response options. The issue is how sex is defined.
Changing the meaning of sex
For several years, ONS and its sister agencies in Scotland and Northern Ireland had been exploring how to measure the transgender population, those who claim a gender identity different from their birth sex. A wide range of options were tested, and trans activists and lobby groups were consulted extensively, as explained in this rigorous report, Sex in the Census.
By late 2019, data users in academia were becoming concerned that reliable sex-based data were being compromised by the demands of trans activists for the right to answer the sex question based on their gender identity. A group of eighty academics wrote to the ONS, in a letter published in The Sunday Times, to express their concerns and demand that robust data not be lost.
Through 2020, social scientists who were Census data users kept the pressure on ONS, who continued to consult with trans lobby groups who were not themselves expert data users. The academics pushed for a proper consultation process on the question on sex in the census, leading to a round-table meeting in June 2020 attended by Fair Play For Women. Assurances were given that data users would be consulted on any research that was conducted, but these were not kept. The stakeholder engagement process was flawed and biased. Stonewall heavily influenced not just the sex and gender identity questions but the manner in which other stakeholders like us were engaged. Further research was conducted, secretly, in late 2020, and the results never published in full. We’ve looked at the quality of that research here.
Flipflopping on the guidance on the sex question
On 22 January 2021, the UK’s Chief Statistician and head of the ONS, Sir Ian Diamond, told BBC Radio 4’s Today programme
“The question on sex is very simply your legal sex, there is then subsequently a question later which asks people over 16 the identity of their gender.
We were relieved. But our relief was short-lived.
With only a matter of weeks to go before Census Day on 21 March 2021, the ONS confirmed on 12th February that the guidance accompanying the long-standing sex question would carry the following wording:
“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.”
The guidance provided three examples, only two of which are consistent with the EHRC definition of ‘legal sex’ (birth certificate or a GRC). In the case of passports, a person’s sex marker can be changed without acquisition of a GRC. The words ‘such as’ suggest that there are other ‘legal documents’ that could form the basis for answering the sex question, all of which can be updated by self-declaration.
Following a public consultation on GRA reform the UK government decided legal sex should not be self-identified. Shockingly, the ONS did the opposite and decided it could redefine sex to include self-declared gender identity. This is sex self-ID through the back door.
Within a few days, we obtained expert legal advice indicating that the ONS had acted unlawfully. A week later, we served them with a pre-action letter: twelve pages of legal detail showing them their mistake, and inviting them to back down and withdraw the offending elements of the guidance accompanying the sex question. We warned that if they did not, we would apply for an expedition order in the high court for an emergency judicial review. ONS did not back down, and we went to court.
News of our legal challenge was reported in the Times on Saturday 20th February. The case was mentioned in the House of Lords debate on the Ministerial and Other Maternity Allowances Bill on 22 February.
“The ONS has caved into bullying — pathetic. The head of the ONS was interviewed, I think on the “Today” programme, and said that it was not going down the path it has now chosen. However, it has caved in, as many public bodies do, because they come under aggressive attack on social media and are accused of transphobia. The Government remain absolutely silent.” Lord Hunt of Kings Heath
“Some organisations, deliberately or carelessly conflate sex and gender. The ONS for example has dug itself into this hole for the upcoming census. With the likely result that inaccurate statistical data will be coming from that about women.” Baroness Noakes
” We can see in other areas deemed technical just how language is being weaponised, you can’t get more technical than the census, but as the noble Baroness Noakes noted, there is now a huge furore about the politicised wording of the questions in the census. The census is a hugely important enquiry to gather factual data and accurate statistics the gender identity lobby has been working hard to obfuscate the issue by mangling sex with gender identity.” Baroness Fox of Buckley
“It is ironic that the recent decision by the Office for National Statistics to cave into the demands to remove sex from the forthcoming census, and allow gender identification instead, will actually work against ensuring that services for transgender people will be provided.” Lord Young of Norwood Green
“It’s urgent at the moment not just because of this bill but because for example I note that the basis on which the ONS has decided to collect data on biological sex, or rather not collect data on biological sex in the census, now means that there are a number of leading quantitative social scientists who believe that we will have both inadequate data and an inadequate track back through data historically and we have been given almost no time to comment on the wording of the census and yet the wording of the census which guides so much social policy, and so much of our understanding of our country, and indeed should guide a great deal of our debates in this house. That will now be poorly defined and I suspect will be poorly used in policy making and I hope the minister will be able to comment on how we might rectify that problem.” Lord Triesman
ONS responded to our pre-action letter on 24 February, telling us the Census had gone live on the 22nd and it was therefore too late for our challenge. They knew the basis of our challenge, and the negative consequences of ignoring us. They seemed not to care.
We sought a hearing urgently, so that the issue could be resolved and the correct guidance given before the Census had gone too far. At a preliminary hearing on 9 March, Mr Justice Swift declared that the guidance should be changed, in this judgement. He ordered the ONS to amend the guidance to the question on sex in the census to specify birth certificate or gender recognition certificate only – i.e. legal sex – and to remove the reference to passports, and to “legal documents such as”.
Although ONS had argued that it would be difficult and disruptive to change the guidance at this stage, by 1730 the same day, less than three hours later, the guidance had been amended on the Census website. Around the same time, NISRA which runs the Census in Northern Ireland quietly amended its guidance in line with the court order.
What happens next?
The ONS proposed to pay our costs in return for avoiding a full judicial review. The terms of agreement are contained in the Consent Order which was signed and sealed on 17 March. We announced the news in this press release. Details on what happens next on the case are here. We are now evaluating the legal implications for the Scottish census planned for 2022. We will announce any plans regarding this shortly.
The Census case was specifically about the law governing the Census, so it does not set a legal precedent more widely. But it provides a strong signal that sex in the law does mean legal, not self-identified, sex, and that it is hard to argue otherwise. It also signals that resistance is mounting against the casual dismissal of women’s sex-based rights, and that those who listen only to trans activists could end up looking very foolish, very publicly.
Fair Play For Women vs ONS: Timeline
December 2019 – Open letter to the ONS from 80 leading academics, coordinated by Professor Alice Sullivan, published in The Sunday Times.
Academics maintain dialogue with the ONS, asking for biological sex to be collected as a critical variable, and pushing for stakeholder engagement.
May – Professor Sullivan publishes an article explaining why it is critical not to conflate sex and gender identity in data collection.
24 June – Round table stake holder meeting attended by Professor Sullivan, Fair Play For Women, and others, but with discussion tightly controlled.
26 & 27 July – ONS meeting with data experts to discuss planned research into different ‘concepts of sex’ and guidance.
7 August– ONS emails data stakeholders to say they are “pausing” the research.
11 September – Office for Statistics Regulation (OSR) writes to ONS Census head, Iain Bell, that he should share the outcomes of this research in a transparent and open way”.
25 September – ONS emails data stakeholders to say there will be no research.
October/ November – Research conducted in secret. (ONS email to data stakeholders on 11 November says they have done “some further work on acceptability”.)
22 January – UK’s Chief Statistician and head of the ONS, Sir Ian Diamond, confirms on national radio that the question on sex will be legal sex.
29 January – Deputy head of the ONS and Census chief Iain Bell confirms to Professor Sullivan by email that it will be legal sex. One reason given is to reduce the risk of judicial review.
12 February – ONS publishes final guidance to be used with the sex question in the Census.
17 February – FPFW crowdfunder launches, raising £101,000 in 2 weeks to cover legal costs.
19 February – Our pre-action letter sent to ONS sets out the legal grounds for our challenge.
22 February – Our case is mentioned by several speakers in the debate in the House of Lords on the Ministerial and other Maternity Allowances Bill. Meanwhile, the Census21 website went live, unannounced. An edited version of the October/November research is finally published by ONS.
24 February – ONS replies to our pre-action letter, saying it was now too late as the Census was live. We do not let that stop us.
9 March – Hearing in the High Court. Interim order granted in favour of the Claimant, Fair Play For Women. ONS is directed by the judge to amend the guidance to specify birth certificate or gender recognition certificate only – i.e. legal sex. Permission granted to proceed to full judicial review, which will be on 23 March. The Court approved transcript of the judgement is here: R (Fair Play for Women Ltd) v UK Statistics Authority (09.03.21)(JUD) (1)
By 5.30pm, the guidance has been amended on the Census website.
Around the same time, NISRA which runs the Census in Northern Ireland quietly amends its guidance in line with the court order.
10 – 16 March – ONS legal team approach FPFW legal team to avoid full judicial review, offering to pay reasonable costs.
17 March – Case is sealed in the High Court. Costs discussion begins, and is ongoing.