Call for an independent review into how public authorities record sex and gender identity

Statistics are an essential part of government and parliamentary democracy. They provide government and those involved in delivering public services with information to plan and monitor policies and decisions, and to allocate resources. Statistics are also used to support business and third sector activity, facilitate research, inform choices made by the general public, and hold public authorities to account. For example, public bodies covered by Public Sector Equality Duty (PSED) Specific Duties are required to collect and publish sex-disaggregated data on employment, and to act on that information.

The Scottish Government states that the primary aim of its official statistics (i.e. those assessed for compliance with the UK Statistics Authority’s Code of Practice for Official Statistics) is to ‘provide an accurate, up-to-date, comprehensive and meaningful picture of the economy and society to support the formulation and monitoring of economic and social policies by government and others’.

To ensure that published statistics are valid, reliable and consistent, the data criteria or what is being measured needs to be clearly defined. However, for the purposes of collecting data on a person’s sex, it has become evident that this is no longer the case.

The Scottish Government has recently confirmed that it recognises sex and gender are separate concepts:

Shirley-Anne Somerville: The protected characteristic of sex in the Equality Act 2010 relates to being a man or a woman. We accept that sex and gender are distinct concepts. The Scottish Government agrees that there is a need to have disaggregated data to allow for the impacts of policies on men and women to be demonstrated. (SP Official report col. 7. 10 January 2019)

However this distinction is not always reflected in data collection practices. Instead of collecting data on a person’s sex and gender identity separately, thereby providing clear data on both, it is evident that some authorities have replaced data based on sex, with data based on gender identity. For example:

Police recorded incidents: Police Scotland states that recorded incidents are based on self-declared identity, unless evidentially relevant to the crime. It is not however, clear if this principle is being applied in practice.

Census: At Stage one  of the Census (Amendment) (Scotland) Bill, it emerged that ‘sex’ self-identification principles were introduced in the 2011 Scotland census, without proper democratic scrutiny or wider public awareness.

Health: NHS Scotland recording standards refer to male and female categories, albeit under the heading Sex (Gender), while evidence from an NHS Scotland professional states that recording is based on gender identity.

It is not clear when the above changes were implemented, the rationale, whether authorities considered the impact on data quality, or assessed the implications for equalities monitoring given that sex (not gender) is a protected characteristic under the Equality Act 2010. Nor is it clear how authorities operate in practice, for instance whether documentation is ever required and if so what documents are regarded as valid.

The unregulated introduction of self-identification principles by public authorities, without proper democratic debate or scrutiny, means that it is no longer clear what is being measured in relation to sex and gender identity.

This clearly has implications for data reliability and accuracy. For example, given that it is very rare for females to commit some types of crime, the inclusion of self-identification cases in statistics related to offending is likely to skew the data. It is also not possible to determine whether variation over time is due to the inclusion of self-identification cases in some years, but not in others. Data that conflates sex and gender identity is also not consistent with the legal definition of sex in the Equality Act 2010.

We are not aware of any robust arguments to support the assumption that data on sex, whether legal or biological, is no longer needed. It is also unclear why these changes have been introduced given that biological sex is the legal cornerstone of women’s rights to fair treatment.

We believe that the Scottish Government should now establish an Independent Advisory Group to review how public authorities record sex and/or self-declared gender identity.

This should determine what specific changes have been introduced and when, examine the related decision-making processes, establish whether officials undertook any form of impact assessment in relation to data quality and usefulness, and clarify the rationale for change.

In the case of the criminal justice system, clarity is needed across all stages and in relation to all agencies, for victims and accused respectively. This includes police incident and crime recording, as well as Crown Office and Procurator Fiscal Service (COPFS), Scottish Court Service,  Scottish Prison Service and local authority criminal justice social work practices.

The lack of clear rules has undermined the recording of sex in a way which is consistent with the Equality Act 2010, and also risks undermining public trust in official statistics.  It also means that we are failing to collect clear data on the part of the population which has a transgender identity. The answer in many of these situations appears to be to gather clear, separate data on sex and, for those for whom it is relevant, on gender identity too, so that both can be properly understood. The first step, however, should be to understand where we are and how we got here.