The Scottish Government were justified to allow transgender people to select their identified gender in the upcoming census, one of the country’s most senior civil courts has ruled.
Lord Sandison, in the Outer House of the Court of Session, rejected the case brought by a women’s campaign group, which argued that the term “sex” in the census should mean the gender listed on a person’s birth certificate of Gender Recognition Certificate (GRC).
Fair Play for Women suggested that the guidance, which advises trans people to select the gender they identify as, rather than what is necessarily on their birth certificate, was unlawful.
The group also argued that it would unfairly impact women and girls as the census is used to plan government policy.
In the judgement, Lord Sandison said that there was no “general rule of law” which stated that someone’s sex must be considered as that listed on their birth certificate or gender recognition certificate (GRC) for legal purposes, and rejected the campaign group’s case.
He added: “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.
“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 has said it now plans to appeal the ruling, saying on social media that it was “disappointed with the judgment”.
It stated: “The Scottish Court of Session has ruled in favour of the Scottish Government in the judicial review of guidance to accompany "the sex question” in the 2022 Scottish census
“We are disappointed with the judgment and will be requesting 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.”
Equality charity Scottish Trans welcomed the decision today.
Vic Valentine, Scottish Trans manager said: “We are pleased that Lord Sandison has held that the guidance produced to go alongside the Census is lawful.
“Scotland’s Census is meant to count everyone in Scotland as who they are on Census Day, and the guidance provided reassures trans men and trans women that this is the same for them as it is for everyone else.
"This is an important decision: clearly stating that all trans men and trans women are able to be counted on the Census as who they are, not just those who have changed the sex on their birth certificate.”
They explained that not all transgender people go through the process of obtaining a GRC, which can take years and is often a very difficult experience for the applicant.
Valentine added: “We believe trans men and trans women who have not changed the sex on their birth certificate have the right to have their identity respected, recognised, and counted too, and welcome this decision.”
The Scottish Government said that it could not comment on a live case, due to the appeal by Fair Play for Women.
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