It’s been two months since we won our court case against the Office for National Statistics on the Census. Here’s what we’ve been doing since then, and what happens next.
What next after the Census case?
The Census in Scotland: We won in England and Wales, and the Northern Ireland Census fell into line. But the organisation responsible for the Scottish Census, the NRS, is still planning a full self-ID approach to the sex question in its census in March 2022; one that is even more extreme than the ONS had planned. We have now written to the NRS setting out the legal arguments for why they would also be acting unlawfully if guidance on the sex question is issued on the basis intended. NRS have told us they are now considering the implications for Scotland’s Census. We are keeping a close eye on what they do next.
Helping the ONS to do better: We have also registered a formal notification to the Office for Statistics Regulation (OSR) that the ONS approach to the Census constituted a breach of the Code of Practice for Statistics. The OSR has confirmed that it will be reviewing the actions taken by ONS with regard to the guidance for the sex question against the standards of the Code. It is vital that lessons are learned so that this sort of thing doesn’t happen again. Read our report on how we took the ONS to court and won.
Mental Health Data: Just last week we heard that biological sex is being replaced by gender identity in an important NHS data set, called the Mental Health Services Data Set (MHSDS). It seems incredible that healthcare providers would think this is a good thing, but it is being planned to start from October this year. The justification is “alignment with the Census” – that is, with the original approach, which we stopped. But this NHS work was already in motion, with self-declared gender identity being promoted as more important than birth sex. NHS representatives supported this approach at the ONS roundtable meeting back in June 2020. We are challenging this, of course. But it shows how insidious and widespread this problem is.
Getting this problem fixed from the top: In February this year we wrote to the OSR to point out how data on sex and gender identity are being conflated, and how harmful this is, particularly to women and girls. All the census authorities are answerable to the OSR for their data standards. The OSR has since published draft guidance on the issue, and opened a consultation on it. Our response to the OSR consultation is here.
Improving UK data standards on sex and gender identity would be a major step forward. Better data will help with making better policies. Meanwhile, we still have to fight to stop changes that have already been set in motion, like the MHSDS.
Women in prison: waiting for the judgement on the judicial review.
Since 2017 Fair Play For Women have been fighting to protect women in prison from the further injustice of being imprisoned with males. In February 2021, three high court judges heard a legal challenge to the policy that lets that happen. That is how slowly the wheels of justice turn, as the timeline shows. The judgement on that case could come any day, or it may take weeks or even months. But we are seeing glimmers of hope in other policy discussions, in which the prison authorities in England and Wales have consulted us and other groups who’ve spoken up for women in prison. This is a good sign. We work hard to support and encourage organisations to develop good policies that are fair for all. Legal action, which is so time-consuming, expensive and (usually) slow, is always our last resort.
Through Freedom of Information requests we have discovered how this unbalanced policy was developed, with the emotional needs of trans-identifying males being given priority, and seemingly no thought at all for the needs or well-being of women. Here’s the full shocking story.
Have a look at the prisons timeline to see how we got here.
We are working hard on sport too.
Our work in sport is non-stop. We are constantly in touch with national and international sports bodies, pointing out the errors in their thinking, the flaws in their policies, the unfairness to women and the risks inherent in the approaches they are adopting. This is not just the risk that women and girls get injured, it includes the risk of legal action against the sports bodies themselves. This is certainly the case where UK law has not been followed or has been interpreted incorrectly. Since March we have had numerous meetings, and written to national sports bodies including the RFU, ECB, World Athletics, British Cycling and Bowls England.
Our recent letter to World Athletics, whom we’ve worked with before.
Working behind the scenes.
Most of the work we do happens behind the scenes. We try to engage with policy-makers and decision-makers to show them where there are policies that need to change because of unfairness or risk to women and girls. This work is a bit like diplomacy – achieving change often means keeping quiet about who is willing to meet with us and to listen to our input. Barely a week goes by when we don’t have contact with someone in an organisation across the political, legal, sporting and media landscapes in our efforts to make change happen. This can be more effective than calling them out publicly or taking them to court, though sometimes, as with the ONS, it’s the only option left.
More legal action?
The high court win against the ONS, and their capitulation and offer to settle “reasonable costs” (this is standard legal terminology) was a fantastic high point for us all. The process now is for us to get our money back – we claim our costs, they object, it goes back and forth via the courts – which can take up to a year. Frustratingly, we won’t get it all back. That just doesn’t happen. There will be a shortfall, likely tens of thousands of pounds, which will come out of the legal fund to which you all contributed through the crowdfunder. But we do have a substantial fund all the same which means we can afford to get expert legal advice on other matters, like sport. So far we have invested over £10,000 on important legal analysis since our ONS win. So… watch this space! We will be able to reveal more in the coming months.
With my thanks for your support and encouragement. We could not do this without you.
Dr Nicola Williams
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