Trans people can self-declare sex in upcoming Scottish census, Court of Session rules

Campaign group Fair Play For Women plans to appeal after failing to convince the Court of Session that guidance on how to answer the binary sex question in the upcoming Scottish census is flawed.

The census, which is due to get underway later this month after a year’s delay, is run on behalf of the Scottish Government by National Records of Scotland (NRS), a non-ministerial department of the administration.

In guidance notes prepared to accompany the census, NRS said that when answering the sex question transgender respondents do not need a gender recognition certificate in order to say their sex is different to that which is recorded on their birth certificate.

Fair Play For Women asked the court to declare the guidance illegal on the basis that it is not possible for someone to legally change sex without a certificate that overrides the information recorded on their birth certificate. The Registrar General for Scotland and the Scottish ministers refuted the claim.

Judge Lord Sandison has rejected Fair Play For Women’s argument on the basis that “there is 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 gender recognition certificate".

In a statement released on social media Fair Play For Women, which campaigns for the rights of women and girls, said it was “disappointed with the judgment and will be requesting an urgent appeal”.

“The guidance proposed for the sex question will jeopardise the collection of accurate data on sex in the Scottish census and erodes the harmonisation of data collected via censuses across the UK,” the organisation said.

LGBTI rights charity Equality Network Scotland, which is made up of organisations including Scottish Trans, intervened in the case as an interested party that supports the NRS guidance.

Its manager Vic Valentine welcomed the decision, saying that “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”.

“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,” he said.

“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.”