Back from the brink: how the Scottish Government was forced to concede it had conflated sex and gender identity in the Census (Amendment) (Scotland) Bill
In 2018 the Scottish Government brought forward legislation to add new voluntary questions on gender identity and sexual orientation to the next Scottish census. The Census (Amendment) (Scotland) Bill was introduced to the Scottish Parliament on 2 October 2018.
As introduced, the Census Bill also sought to amend the 1920 Census Act so that ‘sex’ would be redefined as “including gender identity”.
In its Stage 1 report, the Culture, Tourism, Europe and External Affairs (CTEEA) Committee, convened by former SNP MSP Joan McAlpine, expressed concern about the conflation of these two separate demographic characteristics.
The Scottish census authority, the National Records of Scotland (NRS) noted the Committee’s concerns about this conflation, saying that they would reconsider this matter.
In her Stage 1 oral evidence to the Committee, the then Cabinet Secretary Fiona Hyslop MSP also acknowledged these concerns, conceding that “it is a very serious point that we will certainly look at”.
In a letter to the Committee on 25 February 2019, Ms Hyslop stated that the Equality Network supported an amendment to the bill to address this.
Sex and Gender Identity
Cabinet Secretary for Culture, Tourism and External Affairs Fiona Hyslop MSP, 25 February 2019
I note that the Committee has highlighted that the current drafting of the Bill, and in particular the way the term “gender identity” has been used, may give the impression that sex and gender identity are being conflated. I wish to be very clear that the intention behind the Census Bill has never been to conflate sex and gender identity. I note that you support a proposal by the Equality Network to amend the draft Bill to address this issue. I agree that an amendment is required to deal with this issue and I will bring forward an amendment at Stage 2. As NRS and I made clear to the Committee, we will listen to the Committee and work with it, with the Equality Network and with other stakeholders to deliver a solution that commands broad support while providing the degree of flexibility that NRS need to develop the Census questions. Work has already begun on the precise form such an amendment might take and our thinking and the Equality Network’s thinking on this does not seem to be very far apart.
During the Stage 1 debate on 28 February 2019, Ms Hyslop confirmed that “the intention behind the bill has never been to conflate sex and gender identity”.
The committee highlighted that the current drafting of the bill, particularly in respect of how the term “gender identity” has been used, might give the impression that sex and gender identity are being conflated. The intention behind the bill has never been to conflate sex and gender identity.
Cabinet Secretary for Culture, Tourism and External Affairs Fiona Hyslop MSP, 28 February 2019
At Stage 2 of the Bill, the Scottish Government brought forward an amendment to remove the phrase “including gender identity” from the draft bill.
In my response to the committee’s stage 1 report and during the stage 1 debate on the bill in Parliament on 28 February, I committed to lodging amendments to address the perceived conflation of sex and gender identity in the bill as introduced. Amendments 1 to 4 have been lodged to deal with that issue, as highlighted by the committee.
Cabinet Secretary for Culture, Tourism and External Affairs Fiona Hyslop MSP, 2 May 2019
In its report, the committee supported the Equality Network’s proposal that the bill be amended and, as I have previously confirmed, our thinking on the approach was not that different. I undertook to ensure that my officials engaged with stakeholders in developing the amendments, and I confirm to the committee that National Records of Scotland worked with the Equality Network and others on the specific text of the amendments before they were lodged. National Records of Scotland also wrote to other interested stakeholders, including the women’s groups that responded to the committee’s call for evidence at stage 1, to highlight the suggested amendments. As the committee knows, I lodged the amendments much earlier than usual—in fact, before the Easter recess—to give the committee and others as much notice as possible. They seek to place transgender matters into the schedule to the Census Act 1920 as an entry on their own alongside religion and sexual orientation, and to remove the provision that would have added the phrase “(including gender identity)” to the paragraph in the schedule that contains the word “sex”. The amendments also seek to continue to ensure that the census order is able to make the question on transgender status and history voluntary, which is one of the bill’s key purposes.
The bill was duly amended and was passed on 12 June 2019, receiving Royal Assent on 18 July 2019.
