Court upholds Census guidance allowing trans men and women to self-identify their lived sex

Lord Sandison held in the Outer House of the Court of Session today that Scottish Ministers acted within their lawful powers by approving trans-inclusive guidance for the ‘sex question’ on the next Scottish Census. The guidance says that trans men and trans women can answer the sex question in line with how they live their lives, whether or not they’ve changed the sex on their birth certificate.

His opinion finds that there is no general rule of law that a person’s sex may only ever be answered by reference to the sex stated on their birth certificate or a gender recognition certificate (GRC). Lord Sandison goes on to note that the way sex and gender are recognised by different public authorities (for example, DVLA and the passport office) reflects the modern reality that sex is not generally now regarded as a pure matter of biology, but is a more nuanced concept. For that reason, he concludes that Scottish Ministers were acting within their powers in issuing the Census guidance.

A group called ‘Fair Play for Women’ (FPFW) had applied for a Judicial Review to have the guidance scrapped, because they objected to the fact it does not tell trans women and trans men that they must answer with the sex recorded on their birth certificate or gender recognition certificate. The judgment has the effect of rejecting FPFW’s petition for Judicial Review.
The case was heard by the Court of Session on 2nd February 2022.

Scottish Trans were granted permission to intervene in the case, in the public interest. Scottish Trans provided the Court with a perspective of how trans men and trans women would be impacted if the guidance were to be scrapped, and why it was the right thing, both in law and for producing the best quality data, to count trans men and trans women as who they are on Census Day.
Vic Valentine, Scottish Trans manager says:

“We are pleased that Lord Sandison has held that the guidance produced to go alongside the Census is lawful. Scotland’s Census is meant to count everyone in Scotland as who they are on Census Day, and the guidance provided reassures trans men and trans women that this is the same for them as it is for everyone else. This is an important decision: clearly stating that all trans men and trans women are able to be counted on the Census as who they are, not just those who have changed the sex on their birth certificate..

“To change the sex on their birth certificate, a trans woman or trans man has to go through a stressful, lengthy and difficult process of applying for a Gender Recognition Certificate, that often takes many years. Yet trans men and trans women can update all of their other identity documents, be seen by family and friends as a man or woman, and be living their lives for many years completely as themselves before applying for one.

“We believe trans men and trans women who have not changed the sex on their birth certificate have the right to have their identity respected, recognised, and counted too, and welcome this decision.”

Scottish Trans were represented pro bono by the Scottish Just Law Centre at JustRight Scotland; Kay Springham QC was instructed as advocate.

Jen Ang, Director at JustRight Scotland says:

“We are pleased to have been able to support Scottish Trans to intervene in this case and that the written intervention provided helpful evidence to the court. The Scottish Just Law Centre was founded in order to ensure that third sector organisations like Scottish Trans have a fair opportunity to participate in legal processes where the outcome of a court decision directly affects them and those they support. We look forward to continuing to support individuals and organisations in Scotland to participate in important legal cases, like this one – sharing their evidence and experience on issues of discrimination and inequality.’

Notes for editors

1) About the Census:

Census Day for Scotland is Sunday, 20th March, but people can complete the Census online from Tuesday, 1st March.
It is a criminal offence not to complete the Census, and the sex question is a compulsory question that everyone must answer.

2) About the case:

Fair Play for Women challenged the guidance published by National Records Scotland (NRS) to accompany the “sex question” on the next Scottish Census.

Our Scottish Trans legal team argued:

i) The current guidance which permits trans men and trans women to respond to the Census in line with how they are living, whether or not they have changed the sex on their birth certificate, is lawful – because there is no single definition of sex in Scots, UK or EU law.

ii) Trans men and trans women should continue to be counted in the Census in line with how they live their lives, as this gives the most accurate picture of Scotland’s whole population.

iii) If the guidance is struck down this would be a backwards step, with potential harmful consequences to trans inclusion and equality.

3) About the “sex question” and the guidance:

The question will ask: “What is your sex” with the response options “male” and “female”
The guidance states:

“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.”

A “gender recognition certificate” (GRC) can be obtained under the Gender Recognition Act 2004 and has the effect of legally recognising for all purposes a trans person’s acquired gender. A gender recognition certificate is used to update the sex recorded on a trans person’s birth certificate. A gender recognition certificate is not required to update the sex on other legal documents, such as a passport or a driving licence.

4) About Scottish Trans

We are part of the Equality Network, and work to improve gender identity and gender reassignment equality, rights and inclusion in Scotland. We have three full time staff and provide training, advice and support to organisations, and trans people and their families: https://www.scottishtrans.org

5) About Scottish Just Law Centre

The Scottish Just Law Centre at JustRight Scotland works to reduce discrimination and disadvantage by helping people use equalities and human rights law as an effective tool for social change: https://www.justrightscotland.org.uk

6) About Kay Springham QC:

Kay is based at Compass Chambers, and has extensive experience in Judicial Review and Human Rights Law.