UK

Question of meaning of ‘sex’ in Scotland’s census heads for court battle

CENSUS bosses have refused to comment as they prepare for a legal battle over the meaning of “sex” in Scotland’s official records.

A judicial review has been launched around what campaigners claim is unlawful guidance to the public over how to complete the survey.

Fair Play for Women have engaged Roddy Dunlop QC, the dean of the Faculty of Advocates, to fight their case.

It’s thought that the matter could be heard in February to allow for a decision before the 2022 census opens later that month.

READ MORE: Transgender people can self-identify to answer 2022 Census’s ‘sex question’

The case centres around guidance on how to answer the question “what is your sex?” in the survey, which will be used to inform the delivery of services around the country.

Advice provided by National Records of Scotland (NRS) states that some respondents need not record their biological sex but can state their gender identify instead. It reads: “If you are transgender the answer you give can be different from what is on your birth certificate. You do not need a Gender Recognition Certificate (GRC).”

Fair Play for Women says that should not stand and cites an English High Court order which required similar guidance by the Office for National Statistics to be removed before the census was carried out in England and Wales in March.

That case was also brought by Fair Play for Women. Its director Dr Nicola Williams said she is “confident” of success, adding: “There is now a separate question specifically for transgender people to register their identity in the census. There is no need to answer the question about sex with a gender identity too.”

Under the terms of The Census Act – written a century ago – a respondent’s sex must be asked.

In its petition for judicial review, the campaign group says “there is no provision currently recognised in law that permits any form of self-identification to affect one’s legally registered sex” and the guidance “authorises and approves conduct which could amount to an offence under the 1920 Act”.

READ MORE: Cost of Scottish census shoots up after Covid forces year-long delay

The last census was carried out in Scotland in 2011. It’s done to help authorities make decisions on service provision and the latest is set to cost more than expected. Overall costs were estimated at £117 million before the pandemic but this has now risen by £21.6m – an 18% jump.

Audit Scotland said problems emerged in 2018 and steps were taken at that time, but delays in procuring key components had meant a full census rehearsal could not go ahead in autumn 2019 as planned. A recovery plan has been carried out and the Scottish Government has provided further funding.

A spokesperson for National Records of Scotland said: “We are aware of the commencement of legal proceedings by Fair Play for Women. It would be inappropriate to comment further at this stage”.



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