Briefing note: Sullivan Review in Scotland

Introduction

The Sullivan Review of Data, Statistics and Research on Sex and Gender, published on 19 March, sets out 59 recommendations for good practice on data collection. The review was commissioned by the Secretary of State for Science, Innovation and Technology. The Executive Summary and full report are on the UK Government website.

This Review draws on UK-wide evidence. This briefing considers the implications for Scotland’s public bodies. It covers Scottish Government guidance on data collection on sex and gender identity, and data recording by Police Scotland and NHS Scotland. The Appendix provides further examples of Scottish public sector data, covered in the Review.     

Headline recommendations and findings

• The Sullivan Review traces the loss of reliable data on sex, meaning here what is sometimes also called biological or natal sex, over the last decade, and its replacement with data based on gender or gender identity. This can be seen in accredited official statistics, academic research, and opinion research. Interviews with stakeholders found confusion as to what data should be collected. The trend is evident throughout the UK, including Scotland.
• The Review explains the fundamental importance of sex to research and effective policy-making, across all areas. The headline recommendation is that data on sex should be collected by default in all research and data collection commissioned by government and quasi-governmental organisations.
• The Review makes it clear that it is lawful to collect data on biological sex. It is supported by a legal opinion that states the recommendations are compliant with the relevant legal frameworks, including GDPR and ECHR Article 8 rights.
• It recommends data on transgender and gender diverse identities is recorded where appropriate, as a distinct, separate variable. Recommendations 25 to 36 cover this, including some of the challenges such as accessible terminology.      
• It advises against asking for data on ‘gender’ and/or combining sex with gender identity (including as recognised by a Gender Recognition Certificate).

Recommendation 5
As sex and gender identity are distinct concepts, questions which combine sex and gender identity in one question should not be asked. We have observed a trend for questions which attempt to combine sex and gender diverse identities in one question. Such hybrid questions aim to solicit information on sex from the majority of respondents but on gender identity from some respondents. As such, the target of the question is muddled. Questions that mix sex and gender risk organisations being in breach of the PSED, as they do not identify either the protected characteristic of sex or the protected characteristic of gender reassignment.

• The Review also advises against asking about ‘intersex’ status. This is ‘highly intrusive, poses a risk of identifiability, and unwarranted given the lack of analytical use for data on such a small group’ (Recommendation 19).

Impartiality and critical thinking

• The Review provides a strong practical steer for public bodies struggling to develop appropriate questions. It explains the principles that underpin good question design, including the need for a clear target, continuity over time, GDPR compliance, how to avoid offence, and other key considerations.    
• It also stresses the need for critical thinking and impartiality.     

Recommendation 55
Government departments and bodies should strive to promote a culture of critical thinking and robust and civil disagreement. Some stakeholders expressed the view that it was difficult to have open and comfortable discussions on data collection on sex and gender. Organisations, including government departments, should strive to tackle any barriers to such discussions taking place, and actively promote a collegial and professional approach.

• A lack of impartiality can be seen in several Scottish case-studies covered in the Review, where public servants appeared to put personal or lobbyists’ aims above good data design principles.
• These include the handling of the Scottish Household Survey, which saw the binary sex question replaced with a gender question, prior to an intervention by the Office for Statistics Regulation (see pages 174-178); Scotland’s 2022 census, which provided for a self-identified sex question, against expert statistical advice; and the development of Scottish Government guidance on data collection, as detailed next. 

Scottish Government guidance on data collection

• Scotland is the only UK jurisdiction to have developed guidance for public bodies on how to collect data on sex, gender identity and trans status.  
• The 2021 Scottish Government guidance recommends organisations ask a binary question (male/female) that allows responses based on gender self-identification, as per the approach taken in Scotland’s 2022 Census. It states data on biological sex should only be collected in very limited circumstances, citing privacy concerns. Following publication of the 2021 guidance, a range of public bodies changed their data collection practices accordingly.
• This approach does not meet the Sullivan Review recommendations. This is because it mixes up two separate variables (sex and gender identity) in a single question, which goes against good question design.
• Recommendation 23 states that the guidance should now be reviewed, to take account of the recommendations and legal advice.

Recommendation 23
The Office for Statistics Regulation has written to Scotland’s Chief Statistician regarding the Scottish Government’s 2021 guidance for public bodies on the data collection and publication of sex, gender identity and trans status, suggesting that this guidance would benefit from clarification taking on board developments since the guidance was published.¹ Further to this, the Scottish Government guidance should be reviewed to take account of the recommendations of this review, and to consider our legal advice.

In response to the Sullivan Review, the Scottish Government said:

‘We note the Sullivan Review and its recommendations, which will now be considered. We have committed to reviewing our guidance by the end of 2026 and ahead of this review, the chief statistician is engaged with wider UK work to develop harmonised standards for collecting data on sex and gender identity.’

Note that this is, in part, a reference to an older commitment made under the Scottish Government’s  Non-Binary Equality Action Plan 2023-28, to ‘Review the Chief Statistician’s Sex and Gender in Data Guidance regularly and ensure better inclusion of trans and non-binary people in the review process’ (Commitment 23). Given this context, the process appears unlikely to bring back reliable public data on sex in Scotland. 

Police Scotland

• The Sullivan Review recommends police forces collect data on (biological) sex in all relevant administrative systems. Police Scotland has struggled to establish a coherent position on data recording. Its current policy provides for recording based on self-identified gender or gender as presented. It has made inconsistent statements in relation to its position on recording sexual offences.  
• In September 2024 Chief Constable Jo Farrell announced that Police Scotland would undertake a review of sex and gender in relation to data recording, and other relevant polices, overseen by ACC Catriona Paton. Both Police Scotland and the Scottish Police Authority have stated are looking forward to publication of the Sullivan Review, to inform this work.

Health

• The Sullivan Review provides examples of flawed data collection in the Scottish health system. Most critically, this includes allowing people to change their NHS gender marker, based on gender self-identification (see Annex 2). The Review found no evidence of a lower age limit for this process. The following urgent recommendation is therefore relevant to NHS Scotland.    

Recommendation 12
The NHS should cease the practice of issuing new NHS numbers and changed ‘gender’ markers to individuals, as this means that data on sex is lost, thereby putting individuals at risk regarding clinical care, screening, and safeguarding, as well as making vital research following up individuals who have been through a gender transition across the life course impossible. In the case of children, this practice poses a particularly serious safeguarding risk, and should be suspended as a matter of urgency.

 

Appendix 1. Examples of flawed data collection in the Scottish public sector

Deaths registered weekly in Scotland: An informant may request for the deceased person’s gender marker to be changed.  

Criminal Proceedings in Scotland: The 2023 report presents data on sex (male, female) which is ‘generally based on how a person presents, unless an alternative gender is disclosed.’

Justice Social Work statistics: 2022/23 data tables are labelled gender (male, female). The main report states this reflects both self-identified gender and as perceived by professionals (page 27).      

Scottish Prison Population statistics: Presents data on gender (men, women) as determined by SPS recording policy, which instructs prison officers to record self-declared gender.

Police Scotland ‘Your Police’ survey: This annual survey only collects data on gender identity, asking ‘which best describes you’, with man, woman, non-binary/gender neutral, other [please specify] response options.

Higher Education Student Support in Scotland statistics: Applicants must state their ‘sex’ as ‘male’ or ‘female’. Applicants can alter their male/female classification in their student support records.

Scottish Funding Council Further Education Statistics: These state, ‘We are following the latest recommended guidance for public bodies from the Chief Statistician on the collection and publication of equalities data on Sex, gender identity, trans status’.

Children’s Social Work Statistics Scotland: Data tables on young people in secure care accommodation state ‘Trans, intersex, and non-binary individuals are grouped with males for the purposes of maintaining confidentiality.’

Homelessness in Scotland statistics: Collects data on the ‘gender’ (male, female) of applicants and household members.

Social Security Scotland Client Diversity and Equalities Analysis: Data tables show data on ‘gender’, with man, woman, in another way, and prefer not to say categories. Separate data is collected on transgender status (Table 2).

Annex 2: Example of Edinburgh GP surgery leaflet on how to change NHS Scotland gender marker

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Notes

1. Office for Statistics Regulation (2024), Ed Humpherson to Alastair McAlpine: Regulatory guidance on collecting and reporting data about sex and gender identity in official statistics (29 February 2024). ↩︎

Please note that MurrayBlackburnMackenzie provided research and analytical support to the Sullivan Review.