New laws which would allow people in Scotland to choose which sex they want to be identified as in the census will be rejected by MSPs today – potentially sparking a new row over equality.

Members of the Parliament’s influential culture committee are to say a government consultation on proposed changes to the 2021 census which would allow members of the public to choose whether to answer a question about their sex on the basis of their actual sex or the gender they identify with, has “serious deficiencies”.

In particular, they will raise claims women’s groups have not been given sufficient say, balanced against those of the trans community who thought they had won significant progress for their equal rights hopes.  

Today’s report, which is also likely to have implications for plans to reform the Gender Recognition Act, sees MSPs argue the way gender identity is used in a bill to change the census “has created confusion” and risks conflating sex with gender identity.

The report says this could undermine the usefulness of the data
gathered, particularly in relation to public sector duties to address sex-based discrimination. 

They say a wider range of women’s rights organisations should have
been consulted, and say the consultation appears to have taken place only with “very small numbers of people”, with questions tested on groups drawn exclusively from the LGBT community. 

The committee concluded that many of these issues, particularly in relation to the perceived conflation of sex and gender identity, could have been avoided if there had been an adequate process of consultation.

In its report, the Culture, Tourism, Europe and External Affairs Committee recommends wider consultation and changes before the bill is progressed. 

MSPs also say it the census should continue to ask people a binary question about whether they are male or female and that this should be mandatory.

Members of the committee agree that a question on sexual orientation and a question allowing people to state whether they identify as male, female or non-binary should be in the census, but say answering it should be optional.

In its guidance for the bill, National Records of Scotland had proposed that the mandatory sex question should include a non-binary response option as well as male and female.

The committee’s convener Joan McAlpine MSP said: “The purpose of the census is to accurately reflect our society and gather vital information for the provision of public services and the development of policy. However, there has been a serious lack of consultation, with a range of women’s groups, which has led to legislation being published which is not fit for purpose. 

"Had a proper, robust consultation been undertaken in the first place a lot of these issues could have been avoided.”

The committee says the Scottish Government should amend the bill to address the problems with the language used. “To maximise response rates and ensure consistency, a majority of the Committee concluded that the sex question should remain binary,” she added.

“People who identify as transgender or non-binary will still have the option of a separate question on their identity, which the Committee agreed should be voluntary.”

Ms McAlpine said it would be useful to have information about those who identify as trans but this should be a separate question and answering it should be voluntary.

Under current legislation, all census questions are compulsory apart from questions on religion.

Ms McAlpine added: “We were not looking at the review of the Gender Recognition Act and that is a different piece of legislation. But  some of the concerns expressed about the census are also relevant to that.

“In the evidence we heard there were strong views that if you confuse sex and gender identity you make it much more difficult to protect women on the basis of sex, under the Equality Act.”

The general principles of the Census (Amendment) Bill will be debated by the whole Parliament on Thursday 28th February.

A spokeswoman for academic consultancy MurrayBlackburnMackenzie, which gave evidence to the committee, said a binary question on sex was vital to ensure public authorities could fulfil their duties under equality law and make the census results comparable with previous years.

“We expressed concern about the wording of the Bill as introduced and its conflation of the concepts of sex and gender identity. We are pleased to see that the Committee shares this concern,” she said.

Women’s rights campaigner Susan Sinclair, writer for blog Scottish Women, also welcomed the committee’s report: “Evidence presented to the Committee found there was a lack of consultation with women’s groups throughout this entire process. This serious deficiency should be recognised and taken on board by every sector in Scotland,” she said.

Vic Valentine, Policy Officer at the Scottish Trans Alliance, said the committee had supported the general principles of the bill and the inclusion of voluntary questions on sexual orientation and trans status, in the 2021 Census. 

“We agree that there needs to be wide consultation during the preparation of the Census questions, over the next year, and that that should include consultation with women’s organisations, and with intersex organisations, as well as LGBT organisations,” he said. 

“However we disagree that the compulsory census question asking the person’s sex should be restricted to male and female answers only, because that means that, once again, non-binary people like myself will not be able to answer the question correctly and honestly.”

A National Records of Scotland spokesperson said the recommendations would be considered carefully: “The intention behind the Census Bill has never been to conflate sex and gender identity and we will consider the issues raised in the report,” he said.