Scotland’s Census 2021 Impact Assessments Stakeholder Survey: MBM response

We have completed the National Records of Scotland (NRS) online survey on the draft Equality Impact Assessment for Scotland’s 2021 census. Our main substantive responses are shown below.

Q. What do you think are the most significant impacts on you/your community or others? Are they positive or negative impacts?

The framing of sex question in the 2021 census will impact on the quality and reliability of data collected, and is likely to influence other data collection exercises in the same way.

We believe that a sex question accompanied by guidance which suggests that sex has has no definition beyond a person’s own sense of self-identity presents risks in relation to data reliability, and the ability to accurately monitor and track sex-based discrimination.

We note that the EQIA refers to the introduction of online guidance based on gender self-identification in the 2011 census: “in response to user requests, additional information was provided online to help trans people understand how they should answer this question. That guidance advised people who were trans that they did not need to answer the question with the sex recorded on their birth certificate” (p. 16).

The 2011 guidance was introduced without wider consultation or scrutiny and, as acknowledged by NRS in the recent CTEEA Committee meeting, it is not known how far it influenced answers to the sex question:

Wilson: We do not know how the guidance affected people and we do not know how many people actually looked at it in 2011. (SP CTEEA 12 September 2019 col. 6).

We are concerned that the EQIA fails to acknowledge these shortcomings, particularly given that the Scottish Government has drawn on the 2011 guidance to make its argument for a self-identified sex question based on consistency with the previous census.

Q. Are there any negative impacts which you consider unacceptable and must be eliminated?

A sex question which is accompanied by guidance advising respondents to answer based on their self-declared gender identity represents a departure from the Equality Act 2010 and  as such presents a risk to equalities monitoring. If census data is to properly assist public authorities in meeting their duties under the Equality Act 2010, then the definitions used in the census must mirror those in the Act.

Any redefinition of sex within the context of the census is likely to be replicated in other data collection exercises. This introduces the risk that robust data on sex will be lost, either through its conflation with, or replacement by, data based on self-defined gender identity.

We are also concerned that if it is accepted that it is wrong to ask a person’s sex in the context of the UK’s most high-profile population survey, that the same principle will be adopted widely, with negative impacts for the operation of the Equality Act.

Given these risks, we support the suggestion made by CTEEA that NRS should test the sex question without any accompanying guidance. Arguably there is no justification for guidance to accompany the sex question, given that the 2021 census will contain a new question on trans status. NRS could revert to having no guidance at all, as was the case in all censuses between 1801 and 2001. Whichever direction is taken, the census is not the appropriate vehicle to either preempt legal reform on gender self-identification, or to set legal precedents.

Q. Based on your understanding of our plans for delivery of the 2021 Census are there things you would like to see us do better or differently to improve impacts?

We would like NRS to engage more fully with census data users with a background in data analysis, researchers using population data (including health research), and independent statisticians, and to put the purpose of the census at the forefront of its deliberations: that is, as a data collection exercise that provides the information needed to develop policies, plan and run public services, and to allocate funding.