On 22 September 2021 the Scottish Government published guidance on collecting and publishing data on sex, gender identity and trans status. The guidance was drawn up by the Office of Scotland’s Chief Statistician, in conjunction with a Working Group drawn from a number of public bodies, including representatives from the National Records of Scotland (NRS), Office for National Statistics (ONS), the Equality and Human Rights Commission (EHRC), Police Scotland and the Scottish Prison Service, as well as Scottish Government officials.
Following publication, we submitted a Freedom of Information (FOI) request to the Scottish Government asking for previous drafts of the guidance and related correspondence. In response, the Scottish Government shared eleven drafts and selected correspondence with us.
Drawing on this material, this report considers firstly, the role of EHRC Scotland staff in influencing the guidance in its formative stages, and how staff appeared to tie the Chief Statistician’s hands by refusing to support any version that was seen to promote the collection of data on biological sex, as shown in the correspondence below.
EHRC Scotland to the Chief Statistician, 13 March 2020 (names and job titles redacted)
Secondly, the report shows how the definition of sex in the guidance was changed at a late stage, to include subjective self-identification, in a way that ran counter to the Chief Statistician’s previously stated preference.
If the guidance stands, it will mark the point at which Scotland officially became a nation unable to say what most of the data collected by its public sector marked as ‘sex’ is actually recording. As well as raising acute questions about the role of the EHRC , the analysis suggests that those responsible for this far-reaching outcome will have little to fall back on, if asked to defend it.
Immediately prior to publication, we received a letter from the Commission on 3 November 2021 which confirmed that the advice provided to the Scottish Government ‘could have been clearer’ and that the Commission is developing guidance on data collection for public authorities. In light of this, we hope that the Scottish Government will withdraw its recently published guidance pending the EHRC providing revised advice.
‘The Commission supports accurate data collection in relation to both sex and gender reassignment in order to ensure effective compliance with the public sector equality duty. We agree that it is legitimate and lawful to ask questions on legal sex, sex registered at birth, gender identity and trans status, provided that the questions are proportionate and appropriate to the particular purpose for which the data are being collected, and do not discriminate against or breach the human rights of respondents. It is data owners’ responsibility to satisfy themselves about this.
I also agree that our previous advice to the Scottish Government could have been clearer on how equality and human rights are engaged. We also note the recent High Court decision regarding the 2021 Census in England and Wales. We are now developing guidance for public authorities on the factors they need to consider when collecting data on sex and trans status so that they are compliant with equality and human rights law.’Equality and Human Rights Commission Chief Executive, 3 November 2021
The EHRC correspondence (full text) can be accessed here.