Legal challenge to Scottish census sex question thrown out

A Scottish judge has thrown out a legal challenge from a women's group which claimed allowing people to choose their sex in the census was unlawful.

Census guidance will allow people to identify as male or female regardless of what is on their birth certificate.

The group Fair Play for Women claimed this was in breach of existing legal definitions of sex and gender.

But Lord Sandison said an answer given in "good faith and on reasonable grounds" should not be seen as false.

The census is due to start on 28 February, having been delayed from 2021 due to the Covid-19 pandemic.

It will include two questions on sex and gender - a mandatory question asking "what is your sex", to which people can answer "male" or "female" - and a voluntary one about related to transgender.

Guidance which goes alongside the binary sex question will state that "if you are transgender, the answer you can give can be different from what is on your birth certificate - you do not need a gender recognition certificate (GRC)".

Fair Play for Women - a not for profit women's rights campaign group - challenged this at the Court of Session, arguing that it went against the 1920 Census Act which underpins the exercise.

QC Roddy Dunlop, representing the group, told the court that the distinction between sex and gender was "recognised in law".

He said that the only two lawful paths open to people were to answer based on what is on their birth certificate, or what is recorded on a GRC - and to allow people to do otherwise was to "approve unlawful conduct".

He said: "The position of the petitioner is that you have the sex you're born with and you have a gender recognition certificate - those are the two legal possibilities, there is no other."

For the Scottish government, QC Douglas Ross said the Census Act was "designed to evolve with the times and accommodate changes".

He said the petitioners had offered a "rigid and unaccommodating definition" which should be rejected by the court.

In his written judgement, Lord Sandison said there was "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 GRC".

And he added that "an answer provided in good faith and on reasonable grounds would not be a false answer in the relevant sense, even if persons other than the respondent providing it might not think it the 'right' answer".

He said: "Some transgender people at the very least would not be answering the sex question falsely by stating that their sex was other than that recorded on their birth certificate and the guidance merely acknowledges that."

The judge also said that issues of sex and gender were "much more openly and widely discussed and debated" today than they were in 1920, when the original laws were drawn up.

He said: "I would accept the suggestion that biological sex, sex recognised by law, or self-identified or "lived" sex as at the date of the census are all capable of being comprehended within the word."

A similar case concerning the census for England and Wales resulted in guidance being changed, with people told to answer using information from their birth certificate or GRC.

However Lord Sandison said the English judgement was not binding on Scotland's courts, and that there were distinctions between census legislation north and south of the border.

He said Scotland's guidance was "notably limited in nature" compared to that in other parts of the UK, saying that "it does not positively instruct or even recommend any particular mode of answering the sex question in individual cases".