Definitions and the census: ‘sex’ means something different in Scotland

Following a ruling by the Scottish Inner Court of Session in late February, the meaning of the word ‘sex’ in the March 2022 census in Scotland will be different to that used in the 2021 census for England, Wales and Northern Ireland. To understand the reasons for this semantic discrepancy we need to rewind a bit.

The decennial census in England, Wales and Northern Ireland is organised by the Office for National Statistics. In Scotland, this task is taken on by a governmental department, the National Records of Scotland. Covid resulted in the Scottish census being delayed from 2021 to this year, whereas the ONS survey went ahead as scheduled. In the previous census in 2011, two new questions were added, allowing respondents to report their gender identity and sexual orientation. Both questions are optional and supplementary to the existing sex question, which is mandatory.

Prior to the 2021 census, the ONS published guidance that would have allowed people to respond to the sex question with their self-identified gender. The guidance referred to a range of legal documents, some of which allow the sex marker to be changed on request without going through the formal process to acquire a gender recognition certificate. This guidance was successfully challenged in court in March 2021 by the campaign group Fair Play for Women. The High Court in England ruled that “’sex’, in paragraph 1 of the Schedule to the Census Act 1920 … means sex as recorded on a birth certificate or Gender Recognition Certificate”. The ONS guidance was updated accordingly.

Fast forward to the Scottish 2022 census, and the same question arose. Could people respond to the sex question with their self-identified gender? Once again, Fair Play for Women found themselves in court, but this time the outcome was different. Unlike the High Court in England, the Scottish Court of Session decided that the guidance accompanying the census was lawful. Thus “sex” on the Scottish census will include self-identified gender.

The court was required only to rule on the lawfulness of the Scottish guidance and made no statement on the logic or wisdom of conflating gender identity with sex in light of the separate census question on the former. The ruling revolves specifically around the semantic intentions of the 1920 Census Act. Unlike the Equality Act 2010, the Census Act does not include a definition of what is meant by sex. It is probably fair to say that it would not have occurred to legislators in 1920 that such a definition was necessary. In her written opinion, Lady Dorrian described the definition of sex as being strongly context dependent: “there is no universal legal definition of the word ‘sex’ which applied by default […] There are some contexts in which a rigid definition based on biological sex must be adopted […] There are other contexts in which a rigid definition based on biological sex is not appropriate.”

The ruling by the Scottish court applies exclusively to the meaning of sex in the census and has no bearing on other legislative interpretations. In fact, just one week before the Scottish census ruling, an appeal division at the Court of Session ruled that the Scottish Parliament did not have legislative competence to change the definitions set out in the Equality Act 2010. Here, ‘sex’ and ‘gender reassignment’ are defined as distinct protected characteristics, where sex refers to men and women, with these in turn defined as ‘a male of any age’ and ‘a female of any age’. The Scottish Parliament had sought to allow self-identified women to be included on women-only shortlists, designed to remedy the imbalance in representation between men and women on Scottish public boards. The court ruled that this “conflates and confuses two separate and distinct protected characteristics” and that this was beyond the remit of the devolved administration. Suffice to say, the debate over the meaning of sex seems bound to continue and will likely crop up in the courts again in future.