THE Court of Session has upheld that guidance allowing trans women and men to self-identify in the upcoming Scottish Census is legal.
In the Outer House of the Court of Session, Lord Sandison ruled that Scottish ministers acted within lawful powers by approving trans-inclusive wording in the poll.
The case was heard on Wednesday February 2 in Edinburgh, after Fair Play For Women (FPFW) claimed the guidance was illegal because it “authorises or approves unlawful conduct” by allowing transgender people to state their sex is contrary to the one on their birth certificate.
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However, Scottish ministers and the National Records of Scotland (NRS) disputed the claim and the court allowed the Equality Network to intervene via written submissions.
Trans and equality campaigners have welcomed the news and say it provides reassurance to trans men and women that they can be counted on the Census as “who they are”.
In the written ruling released on Thursday, Sandison confirmed that ministers and the NRS were acting within their powers by issuing the guidance.
The case centred on the following guidance for the question “What is your sex?”, which reads: “How do I answer this question?
“If you are transgender the answer you give can be different from what is on your birth certificate. You do not need a Gender Recognition Certificate (GRC). If you are non-binary or you are not sure how to answer, you could use the sex registered on your official documents, such as your passport.
Lord Sandison ruled that the Scottish Government guidance was lawful
“A voluntary question about trans status or history will follow if you are aged 16 or over. You can respond as non-binary in that question.”
In the written decision, Sandison stated that he reached the conclusion there is no “general rule or principle of law” that states a person must only answer a census question relating to sex with what is on that person’s birth certificate or GRC.
Sandison added that the terms “gender and sex” have been used “essentially interchangeably in various forms of legal and non-legal discourse”, adding that the observations “hold good”.
He continued: “It is entirely rational for a Census to ask a sex question and then separately to enquire whether the person who has answered that question is trans or has a trans history.
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“The second enquiry enables the provision of further information about the basis of the answer to the first.
“For example, if a respondent answers the sex question by selecting the option 'Male' and then answers the transgender status and history question positively and describes himself in doing so as a trans man, a more complete picture of that person’s sex and gender identity is obtained.”
Vic Valentine, Scottish Trans manager, praised the ruling that the guidance is lawful.
They 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.”
Trans and equality activists have welcomed the ruling
Valentine added that changing sex on a birth certificate is a “stressful, lengthy and difficult” process to apply for a GRC and can take years, but they can update all other identity documents.
They added: “We believe 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, and welcome this decision.”
FPFW have said they intend to request an urgent appeal.
In a statement on Twitter they said: “The Scottish Court of Session has ruled in favour of the Scottish Government in the judicial review of guidance to accompany "the sex question” in the 2022 Scottish census We are disappointed with the judgment and will be requesting an urgent appeal.
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"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."
A spokesperson for NRS said: “We note that Lord Sandison has refused the Petition by Fair Play for Women in relation to the guidance for the Census 2022 question ‘what is your sex?’.
“The guidance accompanying the question will advise that those respondents who are unsure how to answer, can answer in a way that differs from their birth certificate, and they do not need a Gender Recognition Certificate to do so.
“We are focussed on successfully delivering Scotland’s Census 2022 in the coming weeks.”
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