This blog looks at some of the arguments and assumptions against retaining a binary sex question in the census and draws out the policy and legal implications. The analysis is based on evidence and arguments presented to the Culture, Tourism, Europe and External Affairs (CTEEA) Committee at Stage One of the Census (Amendment) (Scotland) Bill, and commentary in the media. Examples of these arguments are here and here.
The practical argument
The main line of argument against a binary question seems to rest on an unstated assumption that the census must either ask about sex or about gender identity (or lived identity, which is the preferred term for some campaigners): but that it cannot do both.
There is no theoretical reason why the census cannot ask about male/female sex and allow people who feel their legal sex does not reflect their gender identity to state this as well (including non-binary identities). This approach, which captures both types of information, would tell us the most about the population as a whole and meet the main purpose of the census as a data-gathering tool for governments, policy-makers and researchers.
From a practical perspective, some evidence to the CTEEA Committee noted early question testing showed that collecting data on both sex and gender identity could be confusing. It is important to note however that testing in this area has been limited and that further work is required. Only one question format has been tested to date, and this had particular scope to be confusing for people not already versed in debates about sex and gender identity.
Overall, we would suggest that there is not a robust evidence-base to support the assertion that collecting data on both sex and gender identity cannot work, nor is there any case against further testing. As such, the next step should be to test different formats with a view to capturing data on both sex and gender identity to meet the varied requirements of data users.
Relevance: is data on sex still needed?
A different implied argument against continuing to collect data on binary sex assumes that reliable data on sex is no longer needed, and that for the purposes of the census, as well as other forms of data collection, gender identity is now the more relevant concept. The relevance argument implies that ‘sex-discrimination’ is in fact, always or mainly, discrimination based on how people identify.
From an equalities perspective, decades of evidence and clear theoretical models show that biological sex remains profoundly relevant to women’s experiences of discrimination. There are for example, robust explanations about how employment inequality can relate specifically to sex-based discrimination on the basis that a woman might get pregnant, as well as actual pregnancy and motherhood. The introduction of schemes to address ‘period poverty’ in Scotland also underline the relevance of biological sex.
Looking to international standards, the Conference of European Statisticians (CES) view sex as a core topic: ‘Sex is, together with age, the census topic that is most frequently cross-classified with other characteristics of the population. Therefore, it is fundamental that information on sex is as complete and accurate as possible’ (2015: para. 454).
A further line of argument is that asking people to disclose their legal sex is wrong in principle, as a matter of confidentiality, respectfulness and dignity: namely that on principle a trans person should not have to disclose a legal sex category that does not match their gender or lived identity. Although this argument has been made particularly in past few weeks for those who identify as neither a man or woman, logically it must apply more widely across the trans population.
On confidentiality, from a strictly technical point of view, it should be noted that access to census data is strictly controlled and that it is a criminal offence to unlawfully disclose census data: a person may be fined by to £10,000, sent to prison for up to two years or both.
On the wider ethical issue, among the 47 countries covered by the European Convention of Human Rights, none as yet collect data on gender identity in their census (ONS, 2019 para. 5.5). This suggests that using the census to gather data on sex in its legally-recognised binary form is not yet regarded in any jurisdiction as raising fundamental issues of human rights. For those who have a Gender Recognition Certificate, there may be specific privacy issues in asking for the sex shown on their original birth certificate: those are overcome by making it clear that for that group, known to be very small, it is fine to declare their new legal sex.
The implications of the ethical argument extend far beyond the census. Notably if the same principle is applied to other types of data gathering, it will render the practical operation and monitoring of the Equality Act 2010 unworkable in relation to ‘sex’ as a protected characteristic. Given that any case against asking for legal sex as a matter of principle challenges the very basis of the Equality Act, we would suggest that lawmakers need to consider very carefully the precedent that would be set if the argument were to be accepted that asking for data on legal sex is unethical, even in the relatively confidential context of the census.
Finding the middle ground
The Census (Amendment) (Scotland) Bill has tapped into a much broader philosophical debate as to whether sex should be considered, whether legally, socially, statistically, institutionally or medically, as having any definition other than what people declare. It is a debate of intense seriousness which turns out to have been going on for some time among campaigners, public officials and academics, but which has only recently emerged into the wider public and political consciousness. We would suggest that the census is not the appropriate place to pre-empt how this debate will play out and/or to set legal precedents.
Given where we are, we think the most appropriate and pragmatic response would be to recognise that both sex and gender or lived identity may be relevant to people‘s lived experiences. The more data we gather on both, the better placed we will be to understand the operation of each separately, and together. In practice, this means enabling people to declare their gender or lived identity in the census, without objecting to the continued collection also of clear data on sex in two categories, as defined in law. In a debate which can feel characterised by uncompromising either/or choices, the Committee’s approach to the census offers a middle way which acknowledges the complexity and range of practical needs and individual perspectives.
Note: a non-binary sex question potentially raises risks around statistical disclosure, since the relevant numbers are likely to be very small, particularly when analysed with other variables. The National Records of Scotland state that outputs will be produced on a binary basis, with relevant records randomly imputed into male/female categories (Wilson, 2019 col. 43). While this avoids the risk of disclosure, CES guidance states that if ‘countries are not able to release such information, it is arguable that they should not attempt to collect it’ (2015 para. 456).