27 June 2019
Consultation with stakeholders and question testing
In its Stage One Report, the CTEEA Committee noted that the ‘lack of early engagement with a range of groups and individuals, including a broad range of women’s groups, to be a serious deficiency in the process of consultation on the sex, gender identity and transgender status topics’. The Committee further stated that ‘it is important that future consultation on this topic, by NRS and the Scottish Government, reaches out to the widest possible constituency’.
National Records of Scotland (NRS) extended its consultation on the sex question to women’s groups in late 2018, however the overall consultation process seems unclear. A recent Freedom of Information request to NRS requested details of all organisations/individuals consulted on the development of questions on sex and gender identity/transgender status since 1 October 2018, and the nature of any consultation. In response, NRS stated that the “development of questions for sex and gender identity/transgender status was completed before 1 October 2018” (NRS 10 June 2019 our emphasis).
We were puzzled by this response, given that we have met with NRS on two separate occasions to discuss the sex question since October 2018. We also note the response appears to be inconsistent with a more recent statement issued by the Registrar General for Scotland:
National Records of Scotland are consulting extensively with groups all over Scotland to develop and test proposed questions to ensure they are supported by the public. (Scotland’s Census 2021 Newsletter June 2019).
We think the question development and testing process needs to be made more transparent. To provide a more complete and more coherent picture of the consultation process, and in the interests of transparency more broadly, we think it would be helpful if the CTEEA Committee were to ask NRS to provide a list of all its meetings with stakeholders related to the questions on sex and gender identity/transgender status for at least the past 12 months, or longer, if that would be felt relevant to the Committee’s scrutiny. Specifically, it would be helpful to know which organisations or individuals have been involved in the question testing process and/or have been given sight of specific questions to date.
Response rates and data principles
We understand that NRS intend to test three different versions of the sex question: a non-binary sex question (with three response options); a binary sex question, with accompanying guidance to answer on the basis of self-identification; and a binary sex question with accompanying guidance to answer on the basis of a person’s current birth certificate.
One of the key aims is to establish whether different question formats will result affect the response rate. We are concerned that in focusing on response rates, which may well differ only marginally, NRS are not addressing the main issue: which is about data reliability, and what the data actually represents. More does not automatically mean better, where data collection is concerned. Even if a non-binary sex question produces a higher response rate, the underlying conflation of sex and gender identity would mean that the data did not clearly reflect either one characteristic or the other. This lack of clarity is expected to be more pronounced among certain sub-populations, for example, younger populations in urban areas. In this respect, we think the main aim should be collecting robust data, based on clearly defined criteria, as recommended by the Committee in its report.
Alignment with Gender Recognition Act reform
We are concerned at the extent to which question development on the census appears to have been informed by the Scottish Government’s consultation on the Gender Recognition Act. In a recent report, NRS stated:
It is important to recognise that the development of Scotland’s Census sits within a wider Scottish Government context. NRS has worked closely with colleagues in the Scottish Government undertaking the Gender Recognition Act consultation and consultation with colleagues in Equality workstreams to ensure a cohesive approach to the census questions. Both of these work areas have generated interest in sex, sexual orientation and trans status questions. Some of the stakeholder groups who have been critical of NRS’s approach were formed fairly recently and therefore have not been involved in previous consultation. NRS has begun engagement with these stakeholders to understand their views and needs for the next census. (How the National Records of Scotland is ensuring Census 2021 is trustworthy, high quality and of value to users, para. 3.29)
The Scottish Government has recently announced that its proposals for GRA reform will be subject to further consultation and a full Equality Impact Assessment, while the parliamentary timetable is not yet known. It has also stated that its current plan is not to proceed with separate legal recognition of being non-binary. Against this unsettled backdrop, we would suggest the focus for the census should be on establishing clear data criteria, and maintaining consistency with previous censuses, rather than the continuing work on GRA reform.
The Scottish Government’s plans for a working group on sex and gender identity, announced alongside its further plans on GRA reform, is however relevant and welcome, and we hope that the group’s considerations may be able to feed into the census development process.