In October 2018 the Committee called for evidence in relation to the proposals outlined within the Census (Amendment) (Scotland) Bill, namely to introduce voluntary questions about gender identity and sexual orientation, and add a reference of “gender identity” to the mandatory Sex question within the schedule of matters of the census bill.  The Committee then received a high number of written submissions from both individual women and newly established Women’s Groups, formed as a reaction to the current proposals of the Gender Recognition Act 2004 review.  The main national women’s organisations are often represented by Engender, as the umbrella organisation, all of whom have publicly stated their full support of trans inclusive policies, but as many women across the country do not agree with this policy, many grassroot groups have been forming as a result   There are growing concerns that the sex based rights of women and girls are being diluted as public authorities across all sectors in Scotland are routinely replacing the protected characteristic Sex with Gender or Gender Identity; therefore women and girls are no longer receiving the full protections that should be afforded to them via the Equality Act 2010, nor are our views being represented by any of the current national women’s organisations.

Part of the evidence received by the Committee was the discovery that the National Records of Scotland (NRS) had been researching the design of the Sex and Gender Identity questions over the last few years yet no women’s groups or user groups had been consulted during this process.  As a result of the Committees hearings, I am pleased to report that the NRS have now began this process having reached out only recently and met with representatives from a number of these women’s groups just last week.  The meeting was very positive yet it is clear that problems remain with the Bill.   

With regards to the Bill’s proposals of introducing voluntary questions on Sexual Orientation and Gender Identity (or Trans Status and Trans History) it would appear that no objections or concerns have been raised from anyone in this respect.  The focus of concerns are around the mandatory Sex question with the addition of “including Gender Identity” and the strong suggestion that the Sex question in the next Census would be a Non-binary question.  The Committee have already received strong compelling evidence, both from written submissions and from panel members as to why a question on Sex does not permit a non-binary answer, to put it quite simply, it would no longer be a question on Sex but instead it would become a question on Gender.  What then must be considered is why then do we ask this question? Why are we asking people about their Sex or their Gender? What is the need for this data?  One very important point given during evidence was from Amy Wilson of the NRS in that they “do not propose to produce outputs on a non-binary basis” regardless of whether parliament agrees to ask a Non-binary Sex question or not, the obvious next question is why then ask a Non-binary question?  The explanation the Committee received was that it would make the Census more inclusive and encourage more people to respond who might otherwise not if the sex question was binary.

However, the view that it is more inclusive of people must be carefully considered alongside evidence that a significantly higher number of people will actively refuse to complete a Census form that contains a Non-binary question.    Research as described within the NRS ‘Sex and Gender Topic Report’ [1] where three versions of questions (see below) were tested, the ‘Return Rate’ (eg requests to opt-out or online survey abandoned) was statistically significantly higher for the Non-binary question compared to the two other versions which were both Binary questions.   We therefore do not know the number of people that will opt out of the Census, and therefore be excluded, as a direct result of its aim to be ‘inclusive’ by asking a Non-binary question.

(1)    Binary question with a male/female option

(2)    Non-Binary question with a male/female/’other – write in’ option

(3)    Two part question, first a Binary question as (1) above, followed by a Gender Identity question with man/woman/’in another way – write in ‘ option

Further to this, the research also revealed that respondents were statistically significantly more likely to not provide a response to the Sex question, as they “left the question blank, or skipped the question without answering”, when they were asked the two part version of a Binary question followed by a Gender Identity question (3).

Despite these unsuccessful results for both the Non-binary question (2) and a combined Binary/Gender Identity question (3), further research continued for both these versions only and the decision was made to no longer include the simple Binary question (1) in any testing. The goal of the research was thereafter to find out which of these two versions were more suitable, either a Non-binary (2) or combined Binary/Gender Identity (3).  It is therefore important to remember that when reading the Report’s Conclusion (see below) that there has been no testing carried out since August 2017 that has included the simple Binary question (1).

“Testing has supported the view of stakeholders that a non-binary sex question is more acceptable and produces less item non-response than a question set comprised of a binary sex question followed by a gender identity question”   –   ‘Sex and Gender Topic Report’ Conclusion

The direction that the research took was surprising considering the negative results it had received and was instead being pursued as it was the preferred option of the key Stakeholders [2] many of whom were representatives from the Scottish Government. As the testing being carried out with respondents from both the trans group and the general public group hadn’t produced good results that supported either a Non-binary or a Gender Identity question, it must then be asked where had the initial suggestion come from to include these questions in the Census at all.  

During 2015/2016 the NRS carried out a public consultation on what information users would need for the Census in 2021 and received a total of 113 responses.  A Topic Consultation Report August 2016 [3] was then published which summarised the responses received but also available online are the individual responses that were submitted [4]. Of all these responses only 3 mention Gender Identity or Gender Reassignment;  one was from Stonewall Scotland [5] and another one was from the Scottish Government Equality Unit [6]

Including the topic of gender identity in the Census questionnaire could be achieved by adding “Other” as a field alongside the “Male” and “Female” options to the “Sex” question as well as additional questions alongside other protected characteristic questions. Doing so upfront at the start of the survey would raise awareness of trans and intersex issues more generally, helping to mainstream this issue which some have difficulty engaging with. It would also increase visibility of those whose gender identity is not male or female, and increase acceptance of those who have non-binary gender identities. For trans and intersex people, by being responsive to issues particular to these communities, the Census would be more inclusive and progressive, and would contribute to addressing transphobia in Scotland.” – Scottish Government Equality Unit

What is the moral legitimacy of this process when the key Stakeholders consulted on this topic are being represented simultaneously as being both the respondents and the data users, along with representatives from the Scottish Government who they themselves proposed these views three years ago to the NRS via the consultation.   This is also very relevant as the NRS and ONS have received very different results from their research and this has been accounted to the differences between the Stakeholder groups that were involved in the ongoing consultation process.

The NRS have stated they will continue to consult with women’s groups as they progress with further testing of the questions, but so far there is an agreement between the representatives of the women’s groups that we would very firmly always reject a Non-Binary Sex question, for all the reasons previously given (and contradictory to Fiona Hyslop’s statement that we might welcome it as way to separate sex and gender).  The 2011 Census did not include any options for a person to indicate their preferred gender and guidance therefore advised them to answer the Sex question as their self identified sex, however proposals for the 2021 Census will now provide them with the opportunity to voluntarily answer a question on Gender Identity (or Trans Status and Trans History).  The mandatory Sex question should therefore revert back to the way it had been for the past 200 years; a simple Binary question with a Male/Female option, and no guidance should be needed.   The manner in which people answer Census questions cannot be monitored to check for accuracy therefore there is little to be gained from complicating this simple question with guidance around what the definition of sex is, be it biological sex or legal sex. There was no such thing as ‘legal sex’ before the 2011 census as the Gender Recognition Act 2004 had only came into effect 6 years earlier, therefore the question had always been one about biological sex.  Finally, all talk about the need for consistency in the Sex question between the 2011 census and 2021 census completely dismisses the fact that (with the exception of the 2011 census when, without any public consultation, guidance was given to a very small population) the Sex question has been consistent for the past 200 years.  

Current thoughts about further testing of the questions are for a mandatory Binary Sex question with Male /Female options, immediately followed by a voluntary Trans Status and/or Trans History question.  This combination has not yet been tested by the NRS and there were no objections to it from any of the representatives from the women’s groups.  The exact wording of the Trans Status and/or Trans History question and whether or not it has a Yes/No answer and a ‘write in’ option should be decided via consultation with the Trans Groups.  However, I will reiterate that a Non-Binary Sex question should never be asked, there is no legal precedent in the UK for anything other than a Male/Female response.  Sex as a Male/Female binary is an intrinsic requirement of the Equality Act 2010, as the definitions of the protected characteristics Sex, Sexual Orientation and Gender Reassignment all rely on it.  

The Committee have heard from panel members that trans people have always answered the Census and depending on the definition that is being used for ‘trans’ a proportion of that group are protected by the characteristic Gender Reassignment. Non-Binary however does not come under that category and is therefore NOT a protected characteristic.   As Sex IS a protected characteristic it is unclear to many women’s groups as to why the Scottish Government would choose to ignore that legal fact and instead opt for an untested category not defined anywhere in UK law.  The ONS have based their decision on the definitions within the Equality Act 2010 and have declared that the question on Sex will remain a binary question.  

It is equally unclear to the many women’s groups forming across the country as to why the main national women’s organisations like Engender, Scottish Women’s Aid, Rape Crisis Scotland, Equate Scotland, Zero Tolerance and Close the Gap are also apparently ignoring the importance of the protected characteristic Sex.  The Equality Act 2010 permits the lawful exclusion of trans people, who have the protected characteristic Gender Reassignment, from single sex services like Women’s Refuges and Prisons, yet by adopting and promoting trans inclusive policies these national organisations have all forgotten that their primary role is to ensure the equality, rights and safety of women.

The Committee have done a sterling job facilitating this discussion so far and today they announced they have approved a Stage 1 report on the Bill, and I await its publication to read its findings on the proceedings so far.







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