The publication of the UK Statistics Authority ‘Inclusive Data Taskforce’ recommendations report Leaving no one behind – How can we be more inclusive in our data? looks to set England and Wales on a different path to Scotland in relation to data collection on sex. The Taskforce recommendations not only make clear that data on sex matters and should be collected routinely in administrative data across the UK, but importantly, also make the case for conceptual clarity.
3.3 Data producers should explore how to improve the collection of administrative data on characteristics that are legally protected in equalities legislation in England, Wales and Scotland with users and relevant government departments…. regularly collected (and also legally protected in England, Wales and Scotland) characteristics such as sex, ethnic group and disability status should continue to be comprehensively and appropriately recorded.
3.4 Sex, age and ethnic group should be routinely collected and reported in all administrative data and in-service process data, including statistics collected within health and care settings and by police, courts and prisons. The quality of these data should be regularly reviewed to provide information that better reflects those in contact with these settings.
3.6 Data producers should work in partnership to ensure that UK administrative data sources appropriately reflect relevant characteristics as much as possible…
4.1 Data producers should ensure sufficient granularity of data to enable meaningful disaggregation. They should avoid the use of meta-categories which can disguise heterogeneity between groups, within them, and with which people may not identify…
5.1 Data producers should review the conceptual foundations of their measures for relevant populations and groups, ensuring the measures that are used accurately reflect the current standards and legislation. Data providers should ensure that measures are conceptually robust and do not incorporate formulations that might be deemed to be derogatory, inappropriate or misleading.
5.4 Data producers and analysts should ensure that the language used in the collection and reporting of all characteristics is clear. For example, clearly distinguishing between concepts such as sex, gender and gender identity; or ethnic identity and ethnic background. This would help to avoid ambiguity and confusion among respondents and data users, which can undermine data and analytical quality, as well as belief in the validity and reliability of data.Inclusive Data Taskforce recommendations report: Leaving no one behind – How can we be more inclusive in our data?
Signalling what appears to be a shift at a government level, the launch of the Taskforce report was accompanied by the publication of a Government Statistical Service (GSS) Equalities Data Navigator Tool Tracker that “covers all official statistics that includes data on the protected characteristics as codified under the Equality Act” (our emphasis). The accompanying glossary to the Tracker is grounded in legislation and the now familiar identity-based terminology promoted by some advocacy groups, such as ‘assigned at birth’, ‘cisgender’ and ‘intersex’, is noticeably absent.
Whilst also aimed at the devolved administrations, the Taskforce recommendations sit awkwardly with recent Scottish Government guidance on collecting data on sex and gender. Instead of conceptual clarity, the Scottish Government guidance sows confusion, 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. It also makes an unevidenced claim that for the “vast majority of people sex and gender identity questions will provide the same result” and therefore will “not skew the statistics”, and advises that data on biological sex should not be routinely collected:
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 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
Scotland’s equivalent to the Equalities Data Tracker, the Equality Evidence Finder, also strays from the Equality Act to collate statistics and research on ‘gender’ rather than sex, while Scotland’s Equality Evidence Strategy 2017-2021 explicitly reframes the protected characteristic as ‘gender’.
At one level, the differences between the Taskforce report and Scottish Government guidance might be attributed to the membership of the respective advisory groups. In Scotland, the Working Group advising the Chief Statistician consisted solely of representatives from public bodies already wedded to gender self-identification in principle and/or practice. By contrast, the Taskforce membership included independent senior academics.
The divergence might also be attributed to the politicisation of data in Scotland, as part of a larger project that seeks to embed gender self-identification principles in law and policy, in place of laws and policies that recognise sex as a key determinant of social, economic, and physical outcomes. This direction is most clear in relation to gender recognition reform. Whereas the UK Government has rowed back from reforming the Gender Recognition Act to allow for the statutory self-declaration of legal sex, the Scottish Government is currently preparing to bring forward a Bill that is likely to cement self-identification principles in law.
In relation to data, the embedding of gender self-identification principles is variously reflected in the recent Scottish Government guidance, the replacement of the sex question in the Scottish Household Survey with a question that conflates sex and gender identity, as well as recording policies by public bodies. In a particularly stark example, Police Scotland has described its recording policy in relation to rape and attempted rape in the following terms:
“If the male who self-identifies as a woman were to attempt to or to penetrate the vagina, anus or mouth of a victim with their penis, Police Scotland would record this as attempted rape or rape and the male who self-identifies as a woman would be expected to be recorded as a female on relevant police systems.”Police Scotland: Freedom of Information 1 April 2020
The National Records of Scotland announced on 31 August that it intends to frame the sex question in Scotland’s 2022 census as one about self-declared gender identity, even though there is a new, separate question on transgender status. Similar guidance planned by ONS for the 2021 census in England and Wales was successfully challenged in the English High Court by campaign group Fair Play For Women earlier this year.
At a UK-wide level, the apparent divergence in data collection practices between England and Wales and Scotland raises potential challenges for policymakers, data analysts and other data users, particularly in relation to data comparability. Whilst Scotland is signatory to a Statement of Agreement on the census that states “common definitions and classifications, typically based on international standards, should be agreed, used and published”, the decision to proceed with guidance based on self-declared gender identity is wholly at odds with the sex question in the censuses already undertaken in England, Wales and Northern Ireland.
In practice, the extent to which the Taskforce recommendations will impact on data collection remains to be seen. Like Scotland, many public bodies in England and Wales have already embedded gender self-identification principles in their data collection practices. These include police forces, higher education institutions and the NHS. The Crown Prosecution Service recently stated that it was unable to confirm the sex of the 436 individuals prosecuted for rape between 2012 and 2018 who were recorded as women without examining each individual record. Reversing this direction will be a significant political and cultural challenge that requires careful handling. Nonetheless, the Taskforce recommendations suggest that such a shift may now be gaining traction.
Conversely, in what feels like another blunt message about political priorities and which groups matter most, it appears that Scotland is on track to cement the decisions that have already led to the loss of robust, high-quality data on sex, and further weaken the ability of public bodies to monitor and address sex-based discrimination.