Legal win on English census sex question could change Scottish survey

A successful legal challenge to how the question on sex should be answered in the English and Welsh census could have implications for the Scottish census, it has been confirmed.

Campaigning organisation Fair Play For Women (FPFW) has won a High Court challenge against the Office for National Statistics (ONS) after the ONS conceded that when people answer the “sex question” it should be the meaning of sex in law, and not how they identify.

The High Court has now ordered that when answering “what is your sex?” on the form, people should choose male or female based on what is recorded on their birth certificate or their gender recognition certificate, if they have gone through the process to change their legal sex.

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Guidance for the census south of the border had said that people could choose how to answer based on self-identification, but the legal challenge by FPFW argued the sex question was a “straightforward binary question, not a choice”.

Joan McAlpine MSP had previously raised concerns about the Scottish Census.

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At a hearing on March 9, the ONS, which publishes the census south of the border, defended its guidance, claiming that sex was an “umbrella term” that includes a range of concepts such as “lived” and “self-identified” sex and that asking about a person's sex as recognised by law risked a breach of article eight of the Human Rights Act, which relates to privacy.

However, the judge in the case, Mr Justice Swift, disagreed and granted an interim order that forced the statistics authority to immediately change its census guidance.

Now the ONS has conceded the case and it will not go to a substantive hearing on Friday, with the organisation paying the costs of both sides.

A statement from the ONS said it was “committed to ensuring a high quality, inclusive census, which enables everyone to be counted”. The statement added: “Following the court’s judgement, we will be focusing all our efforts on maximising responses to Census 2021 from everyone and will not be progressing further with the case.

“We are continuing to ask a binary choice – female or male – sex question on the census. This approach is unchanged since 1801. There is also a new voluntary question on gender identity for people aged 16 years and over later in the questionnaire.

“As with previous censuses, most people will not need help to answer the sex question. For those that do, we are providing guidance as we do for all census questions.

"In line with the court’s order, we amended the guidance on the sex question to advise people to use the sex as recorded on a birth certificate or gender recognition certificate if they are considering how to answer.”

The outcome of the legal case is being studied by the National Records of Scotland (NRS), which manages the Scottish census due to take place next year.

It was delayed by the Scottish Government as a result of the Covid pandemic, although the England and Welsh census will go ahead on March 21.

The sex question in the Scottish census has also come under intense scrutiny in the Scottish Parliament, with SNP MSP Joan McAlpine, who chairs the committee dealing with census legislation, raising concerns that sex was being conflated with gender by the NRS in its guidance.

The NRS’s proposal for guidance accompanying the census to 'self identify' sex – similar to the original ONS guidance – was also criticised by 80 academics and statisticians who said the approach posed 'risks' to the accuracy of data collected.

Commenting on the legal challenge, an NRS spokesperson said: “We are committed to delivering a successful census in 2022 which enables all of Scotland to participate and meets the needs of a wide range of data users.

“The decision of the High Court of England and Wales relates to the Census in England and Wales, but NRS will consider the implications for Scotland.”

Ms McAlpine said: “Fair Play For Women has acknowledged that the census scrutiny undertaken in the Scottish Parliament in 2018-19 plans an important role in inspiring and informing their campaign. Scotland now has a year to consider how this court ruling will affect the sex question in our own census.

"Accurate data about sex is important in order to plan services and understand structural inequalities which are of course mostly experienced by females.”

Dr Nicola Williams, director of FPFW, said the organisation would be writing to the Scottish Government and NRS “imminently”.

She added: “Being male or female is a biological reality that affects all our lives. That’s why it’s important to collect accurate data on sex in the census.

"Sex data gets corrupted if the ONS conflates sex with the idea of a feeling, called gender identity, under the question ‘what is your sex?’

“It is also wholly unnecessary because a new question has been added to this census specifically about gender identity. We welcome this separate question on gender identity. We simply want accurate data on sex to be collected too.”

However, a spokesperson for the Scottish Trans Alliance said they “strongly supported” the proposed census guidance by NRS on answering the sex question based on identity.

“Intensive research and testing on what guidance would work best for the sex question in the 2022 census found that continuing with previous guidance, which indicated trans people should answer with the sex they live as, gives the best data,” the spokesperson said.

"This means trans people can answer the sex question in a way that best reflects how we live our day-to-day lives, rather than having to write in the sex currently on our birth certificate, or the sex we were registered as at birth.

"This provides the most useful information about trans people – as we lawfully interact with public bodies, use services, and update our identity documents in this way. We strongly support the next Scottish Census continuing to use this guidance, in line with the results of the research.”

Dr Williams said with ONS paying costs, the money FPFW raised for the legal challenge would now go to protect women’s sex-based rights “in other areas, including paying for legal advice and action where necessary”.

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