Ministers' aim to cater for transgender children in controversial Scots kids sex survey

The Fair Play for Women organisation is now appealing the results of the judicial review into whether ministers should allow participants to self-identify as male or female.

It has emerged that education secretary Shirley-Anne Somerville has said inclusion changes over the children's survey aimed at children as young as eight were under consideration.

She also dismissed privacy concerns over the survey saying the Scottish Government only said it was "confidential" and not "anonymous".

It comes after one parents group told ministers that the survey had a “very heteronormative slant” using the terms “girlfriend” and “boyfriend” which are “outdated and inappropriate”.

Heteronormativity is the concept that heterosexuality is the preferred or normal mode of sexual orientation.

Ms Somerville said in a letter to one parents group: "At this time, there has not been agreement about the way in which transgender people will be reflected within school census data. This is a matter of ongoing consideration, and may change in future. However, at this time, the census reflects the current position in relation to the collection of information about young people’s gender identity."

And she insisted the survey information was needed for "improved, consistent and robust data on children and young people’s health and wellbeing".

"This will inform local children’s services planning and national policy, in order that we collectively, are able to support joint approaches to improving the health and wellbeing of children and young people in Scotland, particularly in light of the concerns in light of Covid-19 but also in the face of very particular concerns about children and young people’s wellbeing.

"For example, in relation to gender-based violence in schools. I am conscious that we are consistently criticised that there is insufficient focus on health and wellbeing within schools and learning and that we are asked to focus more concretely on those matters."

Parents had raised questions about the content of the government's Health and Wellbeing Census, which asks pupils as young as 14 intimate questions on their sexual activity - effectively asking them to confess about illegal acts.

One question - aimed at pupils in S4 and S6 - says: “People have varying degrees of sexual experience. How much, if any, sexual experience have you had?”

Multiple choice answers include “oral sex” and “vaginal or anal sex”.

It also asks how many people they have had sexual intercourse with in the past 12 months.

The census, the full details of which are not available to parents, is to be given to kids in P5, 6 and 7 but the younger groups' questions are targeted on matters such as physical activity, mental health, sleep patterns, social media, body image, and bullying. It also quizzes them on how easy it is to talk to family members about things that bother them and whether their parents really care about their education.

Privacy regulators are investigating complaints that the censusis breaching data protection rules and human rights legislation.

The Information Commissioner's Office, which is responsible for upholding data privacy is looking into concerns that the controversial census billed as anonymous by Nicola Sturgeon as for "statistical and research purposes only" is not strictly confidential.

Privacy documents over the scheme show that analysts overseeing the survey within local authorities can act on behalf of children if any answers raise concerns. It does not specify what type.

Ministers have dismissed calls by the Children and Young People's Commissioner Bruce Adamson to pause the survey to ensure a "rights compliant process" following concerns over privacy and whether informed consent is available.

Revelations over the changes to the kids' survey to support transgender issues have amazed some parents who believe it should play no part in the health and wellbeing census for children.

One Scots parents group official and teacher said that the Scottish Government seems to be "obsessed with transgender ideology" and said the census was running from "one extreme to another".

"It is one thing to encourage children to experiment but quite another to support a medical pathway at a young age," she said.

"It is hard enough for kids at the moment while recovering from Covid restrictions to their education without confusing over issues and there is no clear idea about what age you even start talking about this. It is a minefield.

"With my parent hat on, I would say I would rather we concentrated more on the Three Rs rather than whether children were born in the right or wrong body."

Controversial LGBT inclusivity guidelines for schools produced last year state that children can be allowed to change their name informally within school without their parents’ consent.

The 70-page document calls on teachers not to question pupils if they say that they want to transition to live as a boy or a girl and to instead ask them for their new name and pronouns.

The controversial guidance claimed that it is possible to “come out” as transgender “at any age” and that the views of young people should be respected if they do not want their parents to be informed.

It says that a transgender young person may not have told their family about their gender identity and that inadvertent disclosure could cause "needless stress for the young person or could put them at risk and breach legal requirements". It says: "Therefore, it is best to not share information with parents or carers without considering and respecting the young person’s views and rights."

Scotland’s schools were also told that trans pupils should be able to use whatever lavatory or changing room they choose, to develop “gender neutral” uniform options, and to include transgender characters and role models in reading material and lessons.

LGBT advocacy groups such as Stonewall, which helped formulate the advice welcomed the move and claimed the rules would help all children to “thrive”.

The guidance also includes a recommended list of films and books for primary schools, designed to promote trans inclusivity, and calls for posters which "challenge gender stereotypes" to be put up in classrooms.

One book included tells a story about a blue crayon which suffers an identity crisis as it was mistakenly labelled as red.

The education secretary has also defended the Scottish Government's position after parents organisation Connect called for the SNP government to withdraw the survey - due to be completed this school year - saying it was "not fit for purpose".

Ms Somerville said it was necessary to seek information from children and young people about their lived experiences, including those "which are uncomfortable", in order to ensure that the services that they receive, including those from education, health, and within their communities reflect what life is like for them.

In response to Connect, she said: "You will be aware that some have raised concerns at the nature of some of questions included in the survey – particularly those relating to relationships and sexual behaviour. In order to ensure the services that they receive – including from education, health and within their communities – are the best they can be, asking questions, which may be uncomfortable for some, about the lived experience of children and young people is necessary.

"Those involved in the development of the census are specialists in research and analysis with significant experience of developing impact assessments for the sharing of data, and considering the ethics of the proposed survey.

"You have also asked why it is important that policymakers understand different sexual experiences including oral sex.

"All of the information requested about sexual experiences is intended to inform policy, but also to inform advice and support services for young people.

"We are seeking to understand, in a much deeper way than we are currently able, young people’s lived experiences in order to target support more effectively."

She said guidance for schools has included ensuring that sources of advice and information are available to young people in relation to any issues arising and that any concerns arising which relate to safeguarding should be addressed within established child protection procedures.

"I am conscious that we are consistently criticised that there is insufficient focus on health and wellbeing within schools and learning and that we are asked to focus more concretely on those matters. I believe that consistent evidence of children and young people’s lived experiences, not matter how challenging they are to us, are the best way to establish what we need to do in order to improve their experiences," she said.

On Thursday, Lord Sandison, a civil court judge sitting in Edinburgh, approved a decision to allow any transgender person in Scotland to select male or female as their sex in this year’s census without holding a gender recognition certificate.

Fair Play for Women argued that people were lawfully allowed to answer that question based only on their legally recognised sex, either from their birth certificate or gender recognition certificate.

National Records for Scotland, the government agency, will now publish census returns asking the question “what is your sex”, and offer two options of male and female. About 2.5m households will be asked to complete it.

Its guidance reads: “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.”

In a judgment issued 14 days after hearing the challenge, Lord Sandison ruled there was no legal requirement to insist on legal proof of sex for the census, which will be on 20 March.

Lord Sandison said government agencies recognised sex and gender in different ways, and as the census legislation did not adjudicate one way or the other on the issue, Scottish ministers were able to set the question this way.

“In the modern age, where social change has meant that such issues are much more openly and widely discussed and debated, I would find it impossible to find that the word ‘sex’ in a statute enabling the general population to be asked questions for the wide and general purposes for which a census is conducted falls to be regarded as restricted in the sense for which the petitioner contends,” he wrote.

“Rather, I would accept the suggestion that biological sex, sex recognised by law, or self-identified (or ‘lived’) sex as at the date of the census are all capable of being comprehended within the word.”

Fair Play for Women said they were disappointed with the ruling and would be pressing for an urgent appeal. “The guidance proposed for the sex question will jeopardise the collection of accurate data on sex in the Scottish census and erodes the harmonisation of data collected via censuses across the UK,” the group said.