Earlier this year, MSPs from all parties voted to include a new question on trans status in the 2021 Census. Gender reassignment is a protected characteristic under the Equality Act 2010, so it is right that the census collects data on the number of Scottish citizens who identify as transgender. The proposed trans question will also allow people to record non-binary and other gender identities.
The 2021 census will continue to collect data on sex in a binary format, as it has since 1801. We are, however, concerned that the National Records of Scotland is proposing guidance for the sex question which would make it a question about gender self-identity.
While similar guidance (based on gender self-identification) accompanied the 2011 census, our research suggests this was introduced without wider consultation or scrutiny. It is also not known how far it influenced answers to the sex question. [i]
The 2011 census provided no other option for people to record their gender identity, separate to the sex question, which led to a fudged approach. However, the introduction of a new and separate transgender status question in the 2021 census means that this rationale no longer applies. It means that this is no longer a debate about whether the census should give people a chance to record their identity; it is now purely about whether the census can separately ask people to report their sex recorded since birth (or for the very small number who have a Gender Recognition Certificate, to report what is recorded on their revised birth certificate).
The guidance being proposed by NRS represents a profound conceptual shift in how sex is defined. This would abandon the idea that the census can gather objective data on sex in line with its definition in the Equality Act 2010, where it is a protected category distinct from gender reassignment.
If it is accepted that it is wrong or transphobic to collect data on sex within the context of the UK’s most important and long-standing population survey, the same principle will also be applied to other data collection exercises, leading to a loss of robust data on sex more widely.
We believe the 2021 census should collect data on both sex and trans status, separately, to generate the richest, high quality data on both characteristics, and that the sex question should mirror the legal definition of sex under the Equality Act 2010. [ii]
[i] When giving evidence on the Census Bill in December 2018, Professor Susan McVie stated:
“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)
[ii] We believe that the 2021 census should collect data on legal sex (male/female), as stated on a person’s current birth certificate. For the vast majority of people this will be their biological sex. This approach would allow the small number of people with a Gender Recognition Certificate (around 400 people out of a population of 5 million) to respond based on 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.