Mick Hartley

The Scottish courts have ruled that, for the purposes of the census, people can say whatever they feel like saying about their sex. They can lie all they want – and that's just fine. Isn't that, after all, what a census is for? – not, obviously, for collecting accurate data, but for making people feel good about themselves and validating their life-style choices.

Fair Play for Women:

The Inner Court of Session in Scotland has ruled that guidance issued alongside the census, which informs transgender people they can register as male or female regardless of their legal status, was lawful.

We are surprised and disappointed with the decision. This means that the census in Scotland in 2022 will not collect clear and reliable data on sex.

In the words of the Scottish Government’s counsel “the census is a ten yearly collection of data from the population used to inform strategic policy and allocation of resources and understanding of the country’s population”. The ability of public authorities and researchers to use the data from this year’s census for this purpose has now been damaged.

This ruling has detrimental implications not only for Scotland’s 2022 census, but also for data collection in Scotland more generally and harmonisation of data across the UK.

This is a setback in the fight to protect women and girls. But we have always known it will be a long haul. We won in England and Wales, and last week For Women Scotland won their case. 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.

Helen Saxby:

So what’s in it for trans people, being allowed to lie on the census? 

It’s understandable that you may wish to hide a trans identity in public, if walking down the street you are worried about adverse reaction, just as gay and lesbian people might feel unsafe in a  particular environment. It’s even understandable at work, where peer reaction hasn’t quite caught up with equality law and you fear discrimination. Concealing aspects of your identity when expedient to do so is not the same as lying: to a certain extent we all do it, it eases social interactions.

Lying in the census though, that’s just lying. Information gathered by the census is anonymous, it is not made public, there is nothing to link the statistics gathered with you personally. Moreover, as reiterated in the Court of Session yesterday, the census does not have anything to do with conferring, removing or qualifying rights. It just gathers facts, and if a male answers “female” to the sex question, that is false information.

The sex question has already been qualified in any case, to include a very small number of people who have a Gender Recognition Certificate: the answer to the the question can be the sex on your birth certificate OR the sex on your GRC. This skews the stats in itself but it’s a concession to accommodate a “legal fiction” so we must put up with it. 

Accurate sex-disaggregated statistics are necessary to address inequality for women — Caroline Criado-Perez filled a whole book with reasons why. So we know why we are arguing for accurate recording of sex.

But why do trans groups claim this question is transphobic and show a complete disregard for other protected groups who need accurate statistics? With a separate gender question provided to log “gender identity”, what could possibly be the problem with answering the sex question honestly?

Judging by the way the trans lobby operates, the answer is more than just a question of “validation” for trans people whilst in the act of filling in a form. The lack of accurate data about the trans community has some serious benefits when it comes to spreading false information or making it up as you go along. With no accurate measure of the proportion of trans people in the population, trans advocacy groups can claim either that they are a tiny marginalised minority, or that we’ve all undressed next to numerous trans people in our lives without even knowing it, depending on what they wish to prove that day. Similarly, there is either an anti-trans environment in this country, or trans people have always been welcome to use the facilities of their choice and it’s never been a problem. Regarding the census, we’re back to the “tiny minority” argument to suggest it won’t make any difference to anybody else, despite the evidence that even very small numbers can skew the information in areas such as violent crime and prison populations. 

It could be argued that a lack of accurate data is exactly what is being lobbied for: Stonewall, Mermaids and others depend on it. They routinely use unreliable stats of their own, on child suicide ideation for example, using surveys which are small samples, self-selected and unscientific, but which are then used repeatedly to push a particular agenda.

The more robust stats — for example, on male sexual offenders who identify as female — Stonewall really don’t want to know about because that would interfere with their insistence that males should be housed with females if they have a female “gender identity.” Fudging the issue with “gender identity” is the modus operandi of trans groups wishing to deflect attention away from the glaringly obvious unintended consequences of mixing males with females in vulnerable settings. Accurate data on sex is the enemy of obfuscation….

The arguments over the meaning of sex in the Court of Session yesterday were unintentionally ridiculous: Douglas Ross QC claimed that “There is no universal meaning or invariable use of the words sex or gender.” This is rubbish. We all know what sex means, just as we all knew what “sexual relations’ meant in the words of Bill Clinton and we all knew what “party” meant in the Downing Street lockdown statements: we’re not stupid.

Obfuscating the meaning of “sex” on paper makes no difference to the experience of sexed bodies in real life, you might as well be honest about it. You should certainly be honest about in in the census, where accurate information is needed for the benefit of all people: it’s not just about you. 

Clarity about the meaning of sex is necessary for women’s rights, but it clearly suits the trans lobby to have less clarity over sex and less accurate data. Today’s decision will suit them, but it has contributed to a lack of clarity in the law and a conflict with the sex-based rights of women as defined in the Equality Act, which will continue to play out. 

For a tiny marginalised minority they’ve done well. 

Feelings matter. Facts – not so much.