The Scottish Government guidance states:
Where it is not necessary and proportionate, a question requiring the disclosure of a person’s biological sex may be an unjustifiable breach of privacy: in some cases this would have the potential to reveal a trans history that otherwise a person may wish to keep private. In a small number of instances, it may be necessary and proportionate to require a person to answer a question on the their biological sex but this would be on an individual basis for a very specific purpose and it would be up to public bodies who need this data to develop the best approach to do this. The most likely scenarios where data on biological sex is required would be on a case-by-case basis in a medical context; in a criminal context where a serious sexual offence is being investigated.Scottish Government data collection and publication guidance on sex, gender identity and trans status, 2021: 11
It is deeply disappointing that instead of treating the protected characteristics of sex and gender reassignment equally, the Scottish Government has chosen to elevate concerns about privacy in relation to gender identity over the need to collect accurate data on sex. To support this approach, the guidance draws on a statement provided to the Chief Statistician by the Equality and Human Rights Commission (EHRC). This is surprising given that a formal legal opinion by Aidan O’Neill QC commissioned by Woman’s Place UK concluded that the EHRC statement was misleading and that collecting data on biological sex for the achievement of a legitimate aim was lawful.
The approach taken in the final guidance is also surprising given that the analysis of responses to the consultation on a draft version of the guidance states that a ‘failure to collect data on sex [was] strongly highlighted as an issue’.
From the outset the guidance is muddled and unscientific, asserting that ‘biological sex’, ‘legal sex’, and ‘a person’s innate sense of whether they are female or male’ (i.e. self-defined gender identity) are ‘different aspects’ of a person’s sex. That the Equality Impact Assessment states the recommended approach will have a positive impact in relation to the protected characteristic of sex – on eliminating unlawful discrimination, advancing equality of opportunity and promoting good relations between men and women – is implausible at best, in the absence of routine data collection on sex.
Whilst acknowledging differences between sub-groups in the prevalence of trans identities, for example by age and sex, the guidance effectively overrides this, stating that for the “vast majority of people sex and gender identity questions will provide the same result” and therefore “not skew the statistics”. This claim is wholly unjustified, nor indeed can it be interrogated using the approach recommended in the guidance.
Scotland has already lost robust, high-quality data on sex across a number of policy areas through the adoption of data collection practices that muddy biological sex and gender self-identification. This guidance will cement that loss. It will further damage our ability to understand how sex operates as a determinant of social, economic, and physical outcomes, and to redress discrimination on the basis of sex.
The burden of proof that data on biological sex no longer matters lies with the Scottish Government. Ignoring the advice of academic data experts, the Scottish Government has provided none.