The next census in England and Wales will take place on 21 March 2021. For the past few years, both expert data users and feminist groups have been taking a close interest in the sex question and how this is framed. While the question itself will simply ask ‘What is your sex?’ with male/female response options, the issue at stake here is how sex is defined.
In 2011, the census authorities introduced online guidance which advised respondents that they could answer the sex question based on their self-declared gender identity. In previous censuses, no guidance was made available. The 2011 guidance was introduced at the request of LGBT lobby groups, without any external scrutiny or oversight. In September 2019, a senior official at the National Records for Scotland admitted that they did not know what effect the guidance had had on the quality of data collected.
In December 2019, 80 of the UK’s leading quantitative social scientists wrote to all three UK census authorities to register their concern about similar guidance proposed for the 2021 census. Yesterday, six of the signatories wrote to The Times to register their ‘alarm’ that the UK was on the brink of losing robust, high quality data on sex in the census and other data collection exercises.
On 22 January, when asked about the proposed guidance for the forthcoming census in England and Wales, the Chief Statistician Professor Sir Ian Diamond told BBC Radio 4’s Today programme that: “The question on sex is very simply your legal sex”.
The Equality and Human Rights Commission (EHRC) define ‘legal sex’ in this way:
“In UK law, ‘sex’ is understood as binary, with a person’s legal sex being determined by what is recorded on their birth certificate. A trans person can change their legal sex by obtaining a GRC. A trans person who does not have a GRC retains the sex recorded on their birth certificate for legal purposes.” [our emphasis]
However, the Office for National Statistics (ONS) today confirmed that the guidance accompanying the longstanding sex question will carry the following wording:
“If you are considering how to answer, use the sex recorded on one of your legal documents such as a birth certificate, Gender Recognition Certificate, or passport.”
While this is a tighter definition than the guidance used in the census rehearsal, the wording is ambiguous as to what might be regarded as a ‘legal document’. The guidance provides three examples, only two of which are consistent with the EHRC definition of ‘legal sex’ (birth certificate or a GRC). In the case of passports, a person’s sex marker can be changed without acquisition of a GRC. The words ‘such as’ suggest that there are other ‘legal documents’ that could form the basis for answering the sex question, but these are not specified.
In a report on the wording of the guidance, ONS state ‘legal documents’ replaces ‘official documents’ as participants found this “vague”, stating that “the term ‘legal’ makes it clearer we are referring to government-issued documents”. The guidance however, makes no specific reference to government-issued documents.
Process for changing sex marker on passport
The UK Government website advises that an individual can change the ‘gender’ (sic) on their passport by submitting one of the three following documents:
- a Gender Recognition Certificate
- a new birth or adoption certificate showing your acquired gender
- a letter from your doctor or medical consultant confirming your change of gender is likely to be permanent
The government leaflet ‘Applying for a passport Additional information for transgender and transsexual customers’ (dated 15 August 2013) states that:
“You can apply for a passport in an acquired gender. This option is available to those who do not hold a Gender Recognition Certificate or have not had gender reassignment surgery, as well as those who have.”
Campaign group GIRES provides similar advice.
A 2016 report by the UK Parliament’s Women and Equalities Select Committee, following its transgender equality inquiry, made the following recommendation:
“The requirement for trans people to produce a doctor’s letter in order to change the gender shown in their passport inappropriately medicalises what should be simply an administrative matter. This requirement must be dropped.”
In response to this recommendation, the UK Government stated:
“we will carry out an internal review of gender markers in official documents to find ways to reduce unnecessary demands for such markers, while ensuring necessary data is collected to tackle sex discrimination and inequality, and for identity purposes.”
Despite this, it does not appear that the policy here has changed, as the advice provided by the Government as set out above still requires applicants who have not changed their legal sex to provide the passport authority with a doctor’s letter.
How many people have changed the sex marker on their passports?
In September 2018, a freedom of information response from HM Passport Office confirmed that changing the sex marker on a passport does not change a person’s legal sex.
“The issue of a passport in an acquired gender does not give legal recognition of the change of gender. For passport purposes, the question is only whether the person has permanently adopted a new identity. There is therefore no requirement to produce a GRC in order to obtain a new passport in an acquired gender identity.”
We submitted a freedom of information request to HM Passport Office on 14 January 2020, asking when the policy of enabling a change to the sex marker on a passport had been introduced, and how many individuals had changed the sex marker on their British passport since this policy was introduced, broken down by sex.
The response, received on 10 February 2020, stated that this information was not readily available:
“The information you have requested on how many individuals have changed the sex marker on their British passport is not held in a readily available format. To determine whether an applicant has changed their gender on a passport would involve manually searching all our passport records and this would not be possible within the cost limit.”
On 20 February 2020, in response to a revised FOI request, we were informed that:
“The policy and guidance which permits someone to change their sex marker in their passport was introduced by the UK Passport Service on 4 April 2005. This was as a result of the requirements under the Gender Recognition Act 2004. In making the change UK Passport Service was obliged to enact the legislation and it is a matter of public record in Hansard the consultation and assessments which were made as part of the consideration of the Bill as considered by Parliament.”
In January this year, another FOI request to HM Passport Office asked for “a breakdown of the number of passports issued with a change of gender”, broken down by “sex (male to female and female to male) and by year of application.”
HM Passport Office responded on Monday this week (8 February 2021), again stating that the information could not be made available:
“The information you have requested on how many individuals have been issued a passport with a change of gender is not held in a readily available format. To determine whether an applicant has changed their gender on a passport would involve manually searching all our passport records and this would not be possible within the cost limit.”
Over the past year, HM Passport Office have repeatedly confirmed that the number of individuals who have been issued a passport with a change of gender is not ‘readily available’. As such, it seems unlikely that ONS have been able to quantify or make any assessment of the likely impact of guiding people to answer the sex question in the census based on the sex marker recorded on their passport. Nor do they indicate what respondents should do in the event that the sex marker on one of these listed documents is inconsistent with another.
Whilst the revised guidance is more tightly worded than the guidance used in 2011 and in the rehearsal for the forthcoming census, it does not represent ‘legal sex’ as defined by the Equality and Human Rights Commission and the wording remains ambiguous.
The fact remains that ONS formally abandoned the principle of gathering data on biological sex in 2011 and, against the strong advice of experts in quantitative research and analysis, have not returned to it for the 2021 census.