Two recent court rulings in Scotland: bad news for Scotland’s census but good news for public data collection
This blog considers two recent rulings by the Inner House of the Court of Session. These are the ruling in the Appeal case brought by For Women Scotland (FWS), which sought to overturn an earlier judgment in favour of the Scottish Government in relation to the Gender Representation in Public Boards Act, and the ruling in the Appeal case brought by Fair Play For Women (FPFW), which sought to overturn an earlier judgment that allowed people to self-identify their ‘sex’ in Scotland’s 2022 Census. The first Appeal was successful but the second was not, meaning that the sex question in Scotland’s 2022 census will now proceed on a self-identified basis. The ruling makes clear that the ‘sex’ question in Scotland’s census will conflate sex and gender identity. Importantly, however, the ruling confirmed that in some contexts, namely where status or rights are concerned, a biological definition of sex should be adopted. The first ruling had confirmed days before that the Equality Act 2010’s protected characteristic of ‘sex’ was one of these contexts.
We consider the implications of these Appeal rulings for Scotland’s forthcoming census and for data collection in Scotland more widely. We discuss the regulatory landscape around data collection and the gaps in responsibility that arguably allowed the ordinary definition of sex to be quietly undermined by groups lobbying for the replacement of sex by gender identity in law and policy.
Data divergence and instability in the census
The immediate ramifications of the Fair Play For Women ruling are clear. Firstly, data labelled ‘sex’ in Scotland’s census will conflate sex and gender identity, to an unknowable extent. This will introduce risks to data reliability, with the most substantial effects when sex is cross-referenced with one or more other variables, such as age, education and location.
Second, the data will differ to that collected by the England and Wales, and Northern Ireland censuses. In relation to the risk of divergence, the Scottish Government QC argued that “this point is overplayed” and that if it mattered “it is surprising parliament permits different questions”. The judges agreed with this point. The written judgement states:
Nor do we see it as a problem that there may be a divergence between jurisdictions in this respect. There are already divergences in the specification of particulars which may be required, as seen in para 5 of schedule 1 to the 1920 Act, and there is no requirement that the questions posed for shared particulars be expressed in the same manner in each jurisdiction.
Fair Play for Women Ltd Vs The Registrar General for Scotland and the Scottish Ministers (paragraph 25)
The argument put forward by the Scottish Government and agreed by the judges strikes at the heart of the purpose of harmonisation, which is to provide consistent, coherent and accessible statistics across the census jurisdictions. Whilst countries can ask questions on different topics, harmonisation means that when the same question is asked, the same definition should be used. To this aim, the UK census authorities have a Statement of Agreement, to which the Scottish Government is a signatory. This states:
Common definitions and classifications, typically based on international standards, should be agreed, used and published. (This includes a common population base.)
Common topics and questions have been agreed wherever possible, with the intention of making available consistent census outputs across the UK.
Conduct of the 2021 and 2022 Censuses in the UK
In the service of seeking to win the argument in this case, the National Records of Scotland abandoned this basic principle of data collection. We think that the argument made by the Scottish Government in the Appeal court represents a wilful breach of this agreement. It will now fall to the Office for Statistics Regulation (OSR) to consider the Scottish Government’s intention here, as well as the risks to data reliability, in deciding whether Scotland’s census outputs should be designated as National Statistics.
Data collection by public bodies
Taken together, both rulings have implications for Scottish Government guidance for public bodies on collecting data on sex, gender and gender identity. This is currently aligned with the muddled definition of sex in Scotland’s census and advises public bodies to collect data on ‘sex’ in the following terms.
For the purposes of collecting data, a person’s sex is generally defined as male or female. There are different aspects to a person’s sex:
• Biological: as determined by a person’s anatomy, which is produced by a combination of their chromosomal, hormonal, genital and gonadal characteristics, and their interactions.
• Legal: typically legal sex is their sex registered at birth. However, for a trans person with a full Gender Recognition Certificate, their legal sex is their acquired sex.
• Self-defined: a person’s innate sense of whether they are female or male
Scottish Government 2021: 7
The guidance also cautions that data on biological sex should only be collected in exceptional circumstances such as in relation to serious sexual offending.
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 2021: 11
The judges in the Fair Play For Women Appeal did not accept the argument that data collected in the census was directly relevant to equality monitoring under the Equality Act 2010, and as such need not align with the protected characteristic of sex. The Scottish Government guidance for public bodies by contrast, puts the link between data collection and the Equality Act beyond doubt, describing the ‘overarching aim’ of data collection in the following terms:
It is a fundamental role for public service in Scotland to eliminate discrimination, foster good relations and advance equality in our society. This helps to meet our purpose in the National Performance Framework of creating “opportunities for all of Scotland to flourish”, as well as meeting legal obligations in the Equality Act 2010 through the Public Sector Equality Duty.
Within this overarching aim, there will be different reasons organisation have for collecting data and the uses should determine the data collected. As such, organisations must decide on the most useful definition(s) to use to capture the data that they need.
Scottish Government 2021: 9
The guidance continues to describe how public bodies require information to meet their statutory requirements under the Public Sector Equality Duty (PSED), which is legislated for in the Equality Act 2010. (To explain further, public bodies in Scotland are either subject to the General Equality Duty or the more detailed Specific Duties. Bodies subject to the latter are required to: report on mainstreaming the equality duty; publish equality outcomes and report progress; assess and review policies and practices; gather and use employee information; publish gender pay gap information; publish statements on equal pay; consider award criteria and conditions in relation to public procurement; and publish required information in an accessible manner).
Public bodies who are listed for the purposes of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 will also require adequate information to assess the impact of applying a proposed new or revised policy or practice against the needs of the PSED, for example by completing a Equality Impact Assessment.
Those public bodies must also publish a set of equality outcomes which they consider will enable them to better perform the Public Sector Equality Duty (PSED). A public body must publish a report on the progress made to achieve its equality outcomes every two years and publish a fresh set of equality outcomes within four years of publishing its previous set. Again, information from data must underpin the development and monitoring of these equality outcomes.
Scottish Government 2021: 19
The judgment in the case brought by For Women Scotland (FWS) means the Scottish Government guidance for public bodies now needs to be revised. FWS appealed against Scottish Ministers in the Court of Session, in relation to the definition of ‘woman’ used in legislation aimed at increasing the number of women on public boards. The judgment in their successful case ruled that, under the Equality Act 2010, the protected characteristics of ‘sex’ and ‘gender reassignment’ are separate and distinct, that the former refers to biological males and females, and that an individual approach to the protected characteristics is required. This definition of sex was reaffirmed in the FPFW Appeal case, where the judges argued that a biological definition of sex may be necessary ‘in prescribed circumstances involving status, proof of identity or other important rights’.
This puts beyond question that public bodies need to collect data on biological sex in order to be able to carry out their statutory duties under the Equality Act 2010. The protected characteristic of ‘sex’ is now unambiguously defined in law as biological sex. At most, people holding a Gender Recognition Certificate (GRC) may be entitled to be treated under the Equality Act as being the opposite sex than would otherwise be the case, by virtue of the specific provisions of the Gender Recognition Act.
“Slavishly” following the Equality Act? How the Scottish Government undermined its own policy
As noted above, the Appeal court did not recognise the argument that equality monitoring under the Equality Act applied to the census, although why is not clear. The court did however appear to be influenced by the unique situation under the census that giving a false answer is a criminal offence. The Scottish Government also denied that definitions in the census should align with the protected characteristic during the passage of the Census Amendment (Scotland) Act. In oral evidence to the Scottish Parliament’s Culture, Tourism, Europe and External Affairs Committee in September 2019, the senior principal legal officer for the Scottish Government stated:
Scott Matheson: Arguably, it would be wrong to completely hitch the census to the wagon of the Equality Act 2010, because the definition in that act does its job with all the things that are round about it. It deals with direct and indirect discrimination and with discrimination based on whether somebody has a protected characteristic or is perceived as having that protected characteristic. All those things are wrapped up there. The census has to do something entirely different: it has to collect data and address a wide range of user needs.
At one level, it might seem superficially attractive to copy and paste the language of the Equality Act 2010 into the census but, if we did that, the census would not do the job that we ask it to do…
Culture, Tourism, Europe and External Affairs Committee 12 September 2019 Column 20.
The legal officer continued to assert that the census should not ‘slavishly’ follow the meanings employed in the Equality Act 2010, a statement described as ‘bold’ by Committee members.
… a wide range of data users look to the census to get that data. It does not necessarily follow that what they need and therefore what should be generated to support that wide spectrum of needs has to follow slavishly the terminology or the meaning of the Equality Act 2010, it deals with legal sex rather than strictly biological sex.
Annabelle Ewing: That is quite a bold statement.
The Convener: It is quite bold. The Equality Act 2010 runs right through the documentation—when you define sex, you mention that sex is a protected characteristic in the act, and you conduct an equality impact assessment because the act demands that of you. The act is at the core of what you do.
Culture, Tourism, Europe and External Affairs Committee 12 September 2019 Column 22
Despite Scottish Government protestations at this point, the Convener’s statement is consistent with the National Records of Scotland (NRS) Equality Impact Assessment for Scotland’s census, which unequivocally states that the data is used for equality monitoring, as required under the Public Sector Equality Duty:
A key reason for requiring census data on a range of topics is to be able to fulfil the public sector equality duty. Census data would, for example, assist public authorities in carrying out equality impact assessments when they assess and review policies and practices.
Scotland’s Census 2022 Equality Impact Assessment Results v4.0 2020: 8
Equality monitoring is also explicitly referenced on the face of the guidance to the sex question, as pointed out by the FPFW lawyer in the Appeal hearing. The guidance says:
Why is this question asked?
Scotland’s Census 2022: sex question guidance
The sex question provides vital information for organisations on national and local population statistics, and for long term analysis, as it has been asked since 1801. This question is also used for equality monitoring.
The judges appeared to dismiss this point due to a lack of clarity as to what was meant by equality monitoring in this context. It is more remarkable, however, that the inconsistency between the data that will be collected in the 2022 census and the protected characteristic of sex means that the Scottish Government has undermined the public good argument set out in its own equality impact assessment. It went to court twice, to defend its ability to do this.
The privacy argument no longer stands
The Fair Play For Women case has also made clear that an often-invoked argument based on privacy, namely that to ask for data on biological sex carries a high risk of being a breach of Article 8 Convention rights, holds no weight. This claim was previously made by the Equality and Human Rights Commission (EHRC) in its 2019 submission to the Chief Statistician’s Sex and Gender in Data Working Group, and by the Office for National Statistics in relation to the sex question guidance in the England and Wales census. In correspondence with stakeholders, the ONS stated:
“I also mentioned that there are concerns that a mandatory sex at birth question may contravene people’s human rights (the right to privacy under article 8 of the European Convention on Human Rights)”.
ONS to NHS England & NHS Improvement email corrrespondence 17 June 2020
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 EHRC has also since retreated from its earlier advice and endorsed the position set out in the O’Neill advice.
The same privacy claim was put forward by the Equality Network in its submission to the Fair Play For Women case. However, in a situation where they were clearly reaching for all the arguments they could, Scottish Government lawyers did not invoke this one. Counsel for the Scottish Government was careful in his submission to state that they did not go along with with the Equality Network on this point.
What next?
A failed census
The Appeal ruling on Scotland’s census means that the definition of the key demographic variable of sex, the item of data most used from census outputs, will be unstable, conflating two different demographic concepts to an unknowable degree. This data will not be directly comparable to data on sex in the other UK censuses. Nor will the data be suitable for equality monitoring purposes. Scotland’s census begins on Monday 28 February, making this situation irreversible.
The census will cost around £140 million. It is unique in being population wide. It may yet be the last single-date nationwide data sweep. If not, there will not be another for a decade.
A reprieve for data collection by public bodies
Looking beyond the census, there is however now a strong legal impetus to repair the damage already done to data collection exercises elsewhere. This includes criminal justice, education and health data, data collected by employers and in large-scale government surveys such as the Scottish Household Survey, which is ‘designed to help the Scottish Government and other bodies to plan services and policies for Scotland’. For Police Scotland, which is currently reviewing its policies and practices on recording sex and gender identity, the recent rulings make clear that it needs to collect data on the biological characteristic of sex to meet its statutory duties under the Public Sector Equality Duty.
A challenge for regulators
Having ruled only on the definition of sex and its application in different contexts, the judges in the Fair Play For Women case largely steered clear of any arguments relating to data reliability, the purpose of the census beyond a narrow data collection exercise, or the census as a tool for the public good. Nor did the judges engage with the arguments around equality monitoring, even though as argued above, the Scottish Government’s own policy documents tether the definition of sex in the census to that in the Equality Act 2010.
These matters fall within the remit of the Office for Statistics Regulation, which conversely has steered clear of commenting on the definition of sex or the importance of collecting robust data on what is a fundamental demographic variable. This is stated in terms, in the OSR draft guidance on collecting data on sex and gender identity:
As the regulator of official statistics, it is not for us to define what data about sex are collected across the statistics landscape.
Draft Guidance: Collecting and reporting data about sex in official statistics
Office for Statistics Regulation
In practice, this siloed approach has created a vacuum where no single body has taken responsibility for the reliability and meaning of public statistics. It has allowed decisions with huge ramifications for the public good to be unduly influenced by those lobbying for overwriting sex with gender identity in policy and law, without robust challenge. That it has taken grassroots organisations, reliant on crowdfunding, to hold the Scottish Government to account – to argue in the Courts that sex discrimination still exists and that collecting reliable data on sex matters – is extraordinary and shameful. It should be a wake-up call to regulatory bodies, policy-makers and academics.
The regulator could yet decide not to badge Scotland’s census outputs as National Statistics but at the risk of stating the obvious, this is a retrospective action and the damage will already have been done.
More generally, there is now a strong argument for making changes to the regulatory landscape on data collection. One option would be to strengthen the remit of the OSR to provide oversight of process and substantive definitions, to limit how much damage to official statistics can be done before they reach a point of no return. Clear direction on data collection is also needed from the EHRC to ensure that public bodies are collecting data that allows public sector equality duties to be met.
It bears repeating that the Scottish Government went all the way to court, even after the Office for National Statistics (ONS) had conceded the same point in legal proceedings in England and Wales, so that it could muddy a core census variable and breach well-established UK-wide harmonisation agreements. It did so not because it argued this was legally necessary, but as a political choice. Recent events have therefore shown that, despite the current regulatory arrangements, with sufficient determination core elements of official statistics, up to and including the gold standard of the census, can be subsumed to a political project. Without stronger powers of regulatory intervention, it is not clear what would stop that happening again, for any data category which becomes a focus of similar attention, or how sex will be recovered as a meaningful census variable in Scotland in future.