Scottish census legal challenge thrown out by judge

A legal challenge to questions on sex and gender in the upcoming census in Scotland has been thrown out by the Court of Session.

Census guidance says people can choose which sex to record on the census, regardless of the sex registered on their birth certificate or on a gender recognition certificate (GRC).

Women’s rights campaigners Fair Play For Women said this was unlawful as it breached existing legal definitions of sex and gender, but Lord Sandison said if people answered in “good faith and on reasonable grounds”, then their response should not be considered a lie.

‘Approve unlawful conduct’

The question ‘What is your sex?’ is unchanged from the last census and will be mandatory, while a new question asking if citizens are transgender will be optional.

However, the question on sex will be undermined as the guidance alongside the question will state that “if you are transgender, the answer you can give can be different from what is on your birth certificate – you do not need a gender recognition certificate (GRC)”.

Roddy Dunlop QC, representing the campaign group, said: “you have the sex you’re born with and you have a gender recognition certificate – those are the two legal possibilities, there is no other”.

He added that allowing people to do otherwise is to “approve unlawful conduct”.

Ruling

On behalf of the Scottish Government, Douglas Ross QC claimed the Census Act was “designed to evolve with the times and accommodate changes”, and that Fair Play For Women had offered a “rigid and unaccommodating definition” that the court should reject.

Lord Sandison agreed, stating in his written judgment that 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”.

He claimed some transgender people “would not be answering the sex question falsely by stating that their sex was other than that recorded on their birth certificate” and said the guidance “merely acknowledges that”.

A similar legal case in England and Wales resulted in the guidance being changed, with respondents told to answer according to their biological sex or the one recorded on their Gender Recognition Certificate.