The Census (Amendment) (Scotland) Bill will set an important precedent for how sex (biological or legal) is understood as a policy and legal category in Scotland, and carries significant implications for the future operation of the Equality Act 2010 (see here). Decision-making on the sex question in the 2021 census is also likely to set a precedent for future surveys, and the types of data that are collected by public authorities and researchers.
The Stage One report by the Culture, Tourism, Europe & External Affairs (CTEEA) recommended that the 2021 Scotland census should keep the existing binary (male/female) sex question, and introduce new questions on transgender identity and sexual orientation.
This Q&A looks at where we are in the legislative process, and unpicks some of the current issues.
1. Will the CTEEA Committee decide this week what should happen to the current male/female sex question in the 2021 census?
No. It is only deciding whether to accept technical changes to the Bill, which will pave the way for new voluntary questions on sexuality and trans status.
The Committee’s recommendation on the sex question is for the Scottish Government to take away and consider further, as it develops its detailed plans. Parliament will agree the final detailed questions in a separate process during the 2019-20 session.
2. Does the Committee’s recommendation allow trans people to declare their lived/gender identity on the census form?
The Committee has proposed that the census should ask one question to gather data on sex (male/female) and another separate question, where trans people can provide their lived/gender identity, probably as a write-in option, to allow a wide a range of answers.
Keeping the two questions separate will provide usable data on both sex and gender identity, and will maintain consistency with previous censuses. It will also be consistent with the sex question in the 2021 England and Wales census.
3. Is it possible to ask about both sex and gender identity in the census?
Yes. While there has been only limited question testing to date, there is no theoretical or technical reason why the census should not ask about both separately. For example, a large-scale LGBT survey commissioned by the Government Equalities Office (GEO) asked about both biological sex and trans status.
4. What is the difference between the Committee’s recommendation and the original proposals from the Scottish Government (and the preferred position of the Equality Network/Scottish Trans Alliance, among others)?
The original Scottish Government proposal, supported by the Equality Network/Scottish Trans Alliance, was that the sex question should include a third non-binary option for people who do not wish to answer as male or female.
The Committee recommended that this proposal should be dropped because it mixes up sex and gender identity, which are two separate concepts.
The Committee have recommended that the Scottish Government keep the existing male/female question, which is consistent both with the binary definition of sex in law (for example, in the Equality Act 2010) and with planned sex question for the 2021 England and Wales census.
The Scottish Government has still not declared what it intends to do in the light of the Committee’s recommendation.
5. Would a non-binary sex question capture useful information on the non-binary population in Scotland?
No. Although the purpose of the census is to collect data , the National Records for Scotland has said that it would not make the data on non-binary responses available for analysis below national level, or in combination with other census variables. If the numbers are very low, it may not even publish national aggregate data. The Director of the Equality Network has stated that the only reason for the change is to ‘give non-binary people an option that they can truly answer’ and that ‘it is not about counting people’ (Hopkins, 6 December 2018. col. 40.)
Information on non-binary people can, however, be collected in the voluntary transgender question.
6. Would a non-binary sex question impact on data quality?
We don’t know, which means this is a risk. There is currently no reliable way of predicting the number of people who might use a third response option. In the UK LGBT survey noted above, people declaring as non-binary made up half the whole trans population and were heavily concentrated in younger age groups. This means that the the effects might be small at population level, but more substantial for some sub-groups of the population.
7. How would a non-binary sex question be made consistent with previous censuses, all of which used a binary format?
To maintain consistency with previous censuses, National Records of Scotland plan to randomly assign any non-binary responses to the standard male or female categories. As noted above, the purpose of a non-binary sex question is not to collect data.
8. What type of data on sex should the 2021 census collect?
We have argued that the 2021 census should collect data on legal sex (male/female), as stated on a person’s current birth certificate, and based on clear guidance (see here). For the vast majority of people this will be their biological sex. This approach, together with the separate transgender question, recognises that both sex and gender identity matter.
9. Would this mean that people with a Gender Recognition Certificate (GRC) will have to declare their sex at birth?
No. A GRC changes a person’s sex for most purposes in law. The approach we’ve suggested would allow the small number of people with a GRC (around 400 people out of a population of five million) to respond in their current legal sex. Based on current numbers, enabling GRC-holders to declare their new legal sex would have no material effect on the quality of the data at a population level.
10. In 2011, the Office for National Statistics (ONS) and NRS published online guidance stating the transgender people should respond to the sex question in terms of their gender identity. Should the same guidance be made available in 2021?
No. Records suggest that the 2011 guidance was introduced as a result of flawed legal advice provided in an assessment by an independent consultancy. Arguing that ‘sex includes gender reassignment’, the assessment stated:
To comply with their statutory duty to promote gender equality, ONS must issue clear guidance to trans people, including those who do not have a Gender Recognition Certificate. (Diversity Solutions, 2008, p.4).
The assessment advised that an impact assessment on the change was not required, and that ONS should consult only with transgender groups such as Press for Change and Mermaids in relation to developing the guidance.
In relation to guidance in the 2021 census, the Stage One report stated that the Committee ‘considers that there must be absolute clarity with regard to the approach that is adopted in 2021, taking into account the census’s primary purpose of robust data-gathering and the Scottish Government’s duty to act in accordance with the Equality Act 2010, in which sex is a protected characteristic’ (2019, para. 79). It is not yet established what the guidance in the 2021 census will say. It is also possible that no guidance will be published, which was standard practice prior to the 2011 census.
Before any decision on guidance is made, we would suggest that the legal advice provided in 2011 should be reviewed, and a full impact assessment undertaken in relation to the protected characteristic of sex, including the potential impact on data quality.
11. Would a binary sex question based on self-identification impact on data quality?
A self-identified sex question has significant implications for data quality. It means that for an unknown (and unknowable) number of people, the census will collect a different type of data to sex. With no reliable estimate as to the size of the trans population, this is likely to have impact on the value of the census as a source of reliable population-wide information about sex, and how it relates to other policy areas, such as health, education and employment. The risk to data quality will be higher among some sub-groups, including young people.
12. Does this mean the guidance issued in 2011 may have affected the data quality?
Currently we don’t know, because there is no way of disentangling the data. Technically, this might be determined by asking a binary sex question in the 2021 census, which could be linked back to the previous census to assess any change.
The 2011 guidance was only available online, and separate to the census form itself. However it is not known how widely it was used.
In giving evidence at Stage One, Professor Susan McVie stated that the 2021 census should be used as an opportunity to correct the changes made in 2011:
I think that the General Register Office for Scotland got it wrong when it redesigned the census in 2011 and conflated sex and gender identity into one question. We are now trying to disentangle those things. Arguably, the measure of sex in the 2011 census data is not accurate. (McVie, 13 December 2018. Col. 4)
13. Isn’t all census data self-identified?
All census question responses are self-declared, and not checked for accuracy. However, there is a clear difference between responding to a question without any direction, and responding in a context where Scottish Government guidance actively states that sex has no definition beyond the respondent’s self assessment.
14. Is a non-binary sex question meant to provide a response option for people with DSD (intersex) conditions?
No. The Scottish Government has now made it clear that the third option is not intended for this purpose. Organisations such as DSD Families object to separating out people with DSD conditions as a separate census category. For most people with a DSD condition, this is simply part of their medical history and they are still unambiguously male or female (more here).
15. What is happening with the sex questions in the 2021 England and Wales census?
The Office for National Statistics (ONS) has stated that it will use a binary sex question, both for data quality purposes and to align the question with the protected characteristic of sex in the Equality Act 2010. The ONS has not yet stated whether it will publish any guidance on the sex question.
Maintaining the current question is important to preserve continuity of data in respect of the protected characteristic of sex. The question on sex (male or female) is established in the census, and it is essential to the evaluation of inequality related to that protected characteristic. Consideration has been given to amending the question to reflect a wider range of options, given that there is greater recognition than previously of individuals who reject the traditional “binary” view of sex. Nevertheless, the protected characteristic of sex as defined in the Equality Act 2010, and as relevant for the PSED, is whether a person is a man or a woman. This binary concept of sex is, in turn, fundamental to the Equality Act 2010 definition of sexual orientation and of gender re-assignment, and to the law on marriage and civil partnership and many other matters. (Office for National Statistics, 2018)
16. Does it matter if we collect data on gender identity, instead of sex?
Yes. Biological sex remains relevant to women’s lives, and their experiences of discrimination. For this reason, sex is a protected characteristic under the Equality Act 2010 and public authorities have a duty to monitor and assess the impact of their policies in relation to sex, and other protected characteristics. If a precedent is set for collecting data on gender identity instead of sex, the Equality Act 2010 is likely to become unworkable in the relation to the protected characteristic of sex.
We have also not seen any robust argument for replacing data on sex with data on gender identity.