Q&A on the sex question guidance for the 2022 Scottish census

When is the next census in Scotland?

The next census will take place in March 2022. In the rest of the UK, the census took place in March this year.

Will the census ask for respondents’ sex?

Yes, the sex question will ask ‘What is your sex?’ giving two possible response options: ‘male’ or ‘female’. It is a compulsory question. The census has asked a question about respondents’ sex since its inception in 1801.

Will there be a question on gender identity?

Yes, for the first time, the census will ask a question on respondents’ ‘trans status’. This is a voluntary question and entirely separate to the sex question. It has been widely welcomed.

Why are campaigners saying the sex question will now capture data on gender identity?

The Scottish Government has agreed guidance to accompany the sex question which advises respondents that they may answer based on their self-declared gender identity.

Guidance for the sex question in the 2022 census, National Records of Scotland

Why is this a problem?

The data collected under the sex question will be a mix of data about sex and data about gender identity, despite the fact that there is a new, separate question on trans status.

Surely the number of people who respond to the sex question based on their gender identity and not their sex as registered at birth will be tiny – what’s the problem?

There are no reliable data on the size of the population who identify as members of the opposite sex. For instance, Stonewall estimates that as much as 1% of the population identify as transgender. However, what we do know about those with transgender identities is that they are likely to be concentrated in particular sub-groups of the population. For example, a large study undertaken in Sweden in 2018 found that over 6% of people aged 22-29 wanted to live or be treated as members of the opposite sex. Therefore, as many of the UK’s leading social scientists have pointed out, there is a particular risk to the quality of data for some sub-groups of the population. Census data informs research and public policy decision-making.

Who agreed this guidance?

Scottish Ministers agreed the guidance, which was published on 31 August.

Did MSPs approve the guidance?

No. In 2019, MSPs passed legislation to enable the inclusion of two new, voluntary questions in the census on sexual orientation and gender identity. Last year, they also approved legislation which specified how and when the census would take place. In correspondence with MBM, the Scottish Government appeared to imply that MSPs had approved the guidance, but this is not the case.

The Office for National Statistics (ONS) put in place similar guidance for the census in England and Wales which took place in March this year. Feminist campaign group Fair Play For Women mounted a legal challenge in the English High Court and won.

Is the ONS case legally binding in Scotland?

No, but the overarching legislation – the 1920 Census Act – is the primary legislation for the provision of the UK census. It is unclear on what grounds the Scottish Government believes a court here would not reach the same conclusions on the meaning of the act.

What is the cost of the census?

The census was postponed by a year in Scotland, due to Covid. In a recent Audit Scotland report, it was revealed that it will cost £138.6m in total. (The census in England and Wales cost around £900m.)

FPFW have instructed Roddy Dunlop QC, Dean of the Faculty of Advocates. You can read more about FPFW’s legal challenge here.