The Times-Last-ditch effort to stop gender self-ID in census fails

 Last-ditch effort to stop gender self-ID in census fails

Feminist activists had argued at the Court of Session that a decision to allow self-identification without a gender recognition certificate was unlawful

JEFF J MITCHELL/GETTY IMAGES

Dan Barker

Thursday February 24 2022, 3.15pm, The Times

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Feminist activists had argued at the Court of Session that a decision to allow self-identification without a gender recognition certificate was unlawful

JEFF J MITCHELL/GETTY IMAGES

Dan Barker

Thursday February 24 2022, 3.15pm, The Times

A last-ditch effort to prevent Scots from being able to self-identify their gender on this year’s census, regardless of their legal status, has failed.

The campaign group Fair Play for Women lost its appeal against a decision made by Lord Sandison, who ruled that transgender people could give a different answer from the sex on their birth certificate without the need for a gender recognition certificate (GRC).

The group had taken its case to three civil judges at the Court of Session in a final effort to overturn the decision, but the Edinburgh-based court said today that guidance from the National Records of Scotland was lawful.

The census will start on February 28, having been postponed last year because of 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, related to gender.

The feminist campaign group said it was “surprised and disappointed with the decision” and that the ruling would mean the “census in Scotland in 2022 will not collect clear and reliable data on sex”.

“This is a setback in the fight to protect women and girls. But we have always known it will be a long haul,” a spokeswoman said. “This is one skirmish in a long fight and we are not deterred. We know public opinion is with us. Our support is growing all the time. We are disappointed but not disheartened.”

Lord Sandison ruled this month that the National Records of Scotland’s guidance that people could self-identify their gender, even if they did not have a GRC, was allowed. He said that an answer provided “in good faith and on reasonable grounds” would not be a false answer.

In his 32-page ruling he 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”.

Fair Play for Women has said that sex is biological and the law does not permit self-identification of sex. The group brought the action after it was announced that the sex question in the census would have guidance saying: “If you are transgender you can be different from what is on your birth certificate. You do not need a gender recognition certificate.”

Vic Valentine of the Scottish Trans Alliance welcomed the ruling and said: “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.”