Guidance on census sex question to remain unchanged as court appeal bid fails

Guidance notes that say trans people can self-declare their sex will be sent out alongside the upcoming Scottish census after campaign group Fair Play For Women failed to have them declared illegal.

There are only two possible answers to the sex question in the census - male or female - and the guidance says trans people can tick the box of their chosen sex even if they have not been issued with a gender recognition certificate.

Fair Play For Women had argued that the guidance, which was prepared by government body National Records of Scotland (NRS), was illegal because a gender recognition certificate should be required to override the information recorded on a person's birth certificate.

Last week Court of Session judge Lord Sandison rejected that bid, ruling that “there is no general rule or principle of law that a question as to a person's sex may only properly be answered by reference to the sex stated on that person’s birth certificate or gender recognition certificate".

Fair Play For Women appealed that judgment to the Inner House of the Court of Session, but the bid was rejected this morning. The full judgment has not yet been published, but a tweet from the Judiciary of Scotland confirmed that the court “has refused an appeal raised by Fair Play For Women against the Scottish ministers”.

In a statement, Fair Play For Women said it was “surprised and disappointed with the decision” and would “consider very carefully the full judgment when it is issued before making any further comment or decisions”.

“This means that the census in Scotland in 2022 will not collect clear and reliable data on sex,” it said.

“In the words of the Scottish Government’s counsel ‘the census is a 10-yearly collection of data from the population used to inform strategic policy and allocation of resources and understanding of the country’s population’.

“The ability of public authorities and researchers to use the data from this year’s census for this purpose has now been damaged.

“This ruling has detrimental implications not only for Scotland’s 2022 census, but also for data collection in Scotland more generally and harmonisation of data across the UK.”

LGBTI rights charity Equality Network Scotland, which is made up of organisations including Scottish Trans, intervened in the original case as an interested party that supports the NRS guidance.

It tweeted: “Good news - the Inner House of the Court of Session, after hearing an appeal yesterday, have upheld the ruling last week that the guidance for the census sex question is lawful.

“The guidance effectively says that trans people can answer the sex question with their lived sex.”