Ministers in legal challenge over Scots census's 'unlawful' sex question

Roddy Dunlop QC, Dean of the Faculty of Advocates, argued in court on behalf of the group that the meaning of sex is a clearly defined in law and cannot be self-identified.

The Scottish Government has argued that sex is an umbrella concept that now includes self-identity.

Fair Play say the unlawful Scottish guidance says: “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). "

The campaigners say this directly impacts the rights of women and girls because the census is used to plan government policy and is seeking for it to be withdrawn.

Last year a High Court judge ordered that part of the census guidance for England and Wales accompanying the question on a person's sex should be withdrawn.

It came after the campaign group argued it unlawfully allowed "self-identification" as male or female.

The guidance said that people can use the sex listed on their passport - which can be changed without a legal process.

The Office for National Statistics said it was asking the same question on sex it had done since 1801.

The once-in-a-decade census south of the bordernended up with a separate question specifically for transgender people to register their identity.

In its Scots petition for judicial review Fair Play For Women argues that what is meant by “sex” in the Census Act 1920, a Westminster statute with application across Scotland, England, and Wales has legal status and cannot be overriden.

A false answer to the census is a criminal offence, and it is argued a truthful answer by law to the 'sex' question would be either through biological status or through the only other legally recognised method - a gender recognition certificate.

The group established “to protect the rights of women and girls in the UK” say there is nothing currently in law that permits any form of self-identification to affect one’s legally-registered sex.

The National Records for Scotland (NRS) rejects allegations that the guidance is unlawful.

Its chief executive Paul Lowe stated in a letter to the campaign group in November: "I write to confirm that NRS consider that the published guidance relating to Scotland’s Census 2022 in its current terms is not unlawful, and that the section relating to the question of 'what is your sex' will not be withdrawn and re-worded."

Mr Dunlop in presenting the challenge referred to the case of transsexual Elizabeth Bellinger who in 2013 with her husband Michael lost their battle to have their 22-year marriage declared legal.

Elizabeth, 56, underwent a male-to-female sex change operation in 1981 and married Michael Bellinger the same year.

The registrar who married the couple did not ask for any evidence of Mrs Bellinger's gender and the couple have lived since then as husband and wife.

But the British legal system as it stood then did not accept the validity of the marriage and 2002 Mrs Bellinger's case was heard by the House of Lords, the highest court in the UK.

In 2003, five Law Lords rejected the Lincolnshire couple's marriage, saying Parliament regards gender at birth as fixed for life.

A bill was published after a landmark ruling by the European Court of Human Rights that current UK law breached transsexuals' human rights.

The eventual Gender Recognition Act (GRA) 2004, allowed UK to legally certify their gender if they meet certain criteria.

Mr Dunlop said: "Sex is in law, biological sex. Parliament has provided one route and one rule only by which sex can be changed and that is as things stand by obtaining a gender recognition certificate.

"For someone with a gender recognition certificate, the sex on the certificate provides the true answer to the sex question in the census. For anyone else, it is the sex with which you were born.

"These are the only two lawful options. That being so, guidance that encourages an answer that is not a true and lawful answer is itself, unlawful."

Ministers have said that the "rigid and unaccommodating" definition of sex urged by Fair Play for Women should be rejected.

Douglas Ross QC for the Scottish Government said: "The census collects accurate and comprehensive data about how people live their lives as at the date of the census.

"It is now recognised and accepted that a person can change their birth sex. That can be done formally by obtaining a gender recognition certificate but it can also be done informally for certain purposes, for passports or for dealings with the National Health Service to take two examples."

He said the census act was designed to evolve with the times and to be able to accommodate changes.

He said the census guidance on the sex question was "reflective of respect for and recognition of the status of transgender people".

From the Scotland's Census 2022 question set.

The London High Court challenge came after the ONS issued advice on how to answer the question “What is your sex?” on the survey this year, which read: “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.”

It added: “If you are aged 16 years or over, there is a later voluntary question on gender identity. This asks if the gender you identify with is different from your sex registered at birth. If it is different, you can then record your gender identity.”

But Mr Justice Swift ordered that the guidance should be rewritten to remove the words “such as” and “or passport”, to make clear that respondents should only use the sex recorded on their birth or gender recognition certificate. A little more than an hour after the judge’s ruling the text had been changed.

Transgender groups want self-identifying to be easier because getting a gender recognition certificate is a rigorous process.

At present, transgender people have to prove to a gender recognition panel that they have been diagnosed with gender dysphoria, have lived as their new gender for at least two years and then make a legally binding declaration that they intend to live as this gender for the rest of their life.

Only 6,000 people have completed the process.

From the Scotland's Census 2022 guidance.

Scottish Trans, part of the LGBTI human rights charity Equality Network have begun their own legal bid to to protect trans people’s equal participation in the next Scottish census.

It has warned calls to remove existing language in the nationwide survey this March could send the message that trans men and trans women “aren’t counted equally in Scotland”.

The group has been given permission to intervene in the Fair Play for Women action.

Scottish Trans argues the “guidance as it stands is more likely to yield accurate and comparable census data, than will be the case with the alternative guidance that Fair Play For Women seeks to impose”.

Its legal team is expected to argue that current guidance is in line with how people are living, whether or not they have changed the sex on their birth certificate.

In 2003, the House of Lords declared that section 11(c) of the Matrimonial Causes Act 1973 was incompatible with the Human Rights Act 1998. The result of this was that legislation was needed to enable transsexual people to marry in their new gender.

Lord Sandison is to make his decision on the judicial review in due course.