Women's group bids to block census gender changes

A lawyer for a women's campaign group has argued that plans to allow people to choose their gender in this year's census are unlawful.

The Scottish government wants to allow people to "self identify" as a man or woman.

Roddy Dunlop QC told the Court of Session answers should be based on what is recorded on a birth or gender recognition certificate.

The judge will deliver a ruling at a later date.

The census is due to take place in March, a year later than scheduled as a result of the Covid pandemic.

The Scottish government currently plans to allow people to answer the question on what sex they are based on their own personal view of what their gender is, regardless of whether they have a gender recognition certificate.

This position has been welcomed by transgender rights activists who believe that people should be able to answer in a way that reflects their normal everyday experiences.

However, lawyers for the campaign group Fair Play for Women have sought a judicial review, arguing the guidelines fall foul of the 1920 Census Act.

'Two legal possiblities'

Mr Dunlop, representing Fair Play for Women, told the court that pre-existing legislation and case law surrounding the issue meant that the are two lawful courses of action to be taken with answering questions on sex.

He said the first was for people to answer based upon what is recorded on their birth certificate.

The second would be for people to answer the question based upon what is recorded on their gender recognition certificate.

People can acquire a gender recognition certificate if they can demonstrate that they are 18, have lived in their acquired gender for two years and have or had gender dysphoria.

"The distinction between sex and gender is recognised in law," he said.

"For example in the Equality Act 2010 which protects both sex and gender reassignment individually and separately as protected characteristics.

"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."

Scottish ministers want to allow people to enter a different sex to the one registered on their birth certificate - regardless of whether they have obtained a gender recognition certificate.

The proposal has been published in guidance which was issued by the National Records of Scotland in August last year.

Transgender rights activists have argued this would have no impact on the quality of data.

But Fair Play for Women want the judge Lord Sandison to quash the guidance as it "approves unlawful conduct". They also want the court to issue an interdict preventing it from being "disseminated".

The campaign group won a court challenge south of the border last year when a judge ordered that similar guidance be withdrawn, days before the census in England and Wales in March 2021.

'Evolve with the times'

Douglas Ross QC, for the Scottish government, urged Lord Sandison to reject the arguments put forward by Mr Dunlop, saying his interpretation of the 1920 Census Act was incorrect.

Mr Ross said its purpose was to allow future generations to acquire information relevant to society's needs at the point in time when the census is taken.

He said his interpretation of the law was supported by a recent judgement made at the UK Supreme Court by judge Lord Reed.

Mr Ross added: "It is important to be clear about what the census is.

"It is a 10 yearly collection of data from the population which is then used for the purpose of strategic planning, allocation of resources and provide an understanding of the country's population of and how and where it lives.

"It is not about conferring, removing or qualifying any rights or obligations of those who respond.

"The Census act 1920 provides the framework for which a census is conducted.

"It is an act that was designed to evolve with the times and accommodate changes. In light of these considerations, the rigid and unaccommodating definition urged by the petitioner should be rejected by the court."

Lord Sandison said he needed time to consider his decision and will issue a written opinion shortly.

Lord Sandison delivered an early contender for understatement of the month when he described the issue at the heart of this case as "a fairly hot potato".

The judge has to decide whether guidance in Scotland's 2022 census is unlawful because it allows people to self-identify when they're asked if they're male or female.

Fair Play For Women argued the legal definition of sex is crystal clear. It's what on your birth certificate or gender recognition certificate. Nothing else counts.

They said anyone who answers the question on the basis of another definition would be breaking the law, and that's what the guidance is encouraging people to do.

The Scottish Government pointed out that the Census Act of 1920 established the framework for the nationwide survey and was intended to move with the times. It argued the guidance would reflect and respect the status of trans people as they've living today.

The case is a spin off from the on-going and often vitriolic debate over the Government's plans to amend the Gender Recognition Act. Ministers want to make it easier for people to change their legally recognised sex.

Since 1801, the census has provided a snapshot of the nation. Today's court case highlights fundamental divisions over one aspect of life in Scotland in 2022.