THE Court of Session has rejected an appeal attempting to overturn the recent ruling allowing trans people to self-identify in the upcoming Scottish Census.
The appeal, made by group Fair Play for Women, attempted to argue that “the guidance is unlawful because it has the effect of permitting persons responding to the Census to submit inaccurate answers”.
However this was unequivocally rejected by the Inner House of the Court of Session, who refused this appeal.
This news was welcomed by LGBT and trans equality charities across Scotland. Colin Macfarlane, director of Stonewall Scotland said: "We are pleased that Fair Play for Women’s second attempt to ensure Scotland’s census would not be trans inclusive has once again failed. The ruling from the Inner House of the Court of Session upholds last week’s ruling that the Census guidance is lawful.
“This is good news for trans men and trans women who, as we approach Census Day, will now know that they will be counted as who they say they are.’’
Vic Valentine, manager of trans equality charity Scottish Trans 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.
“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.”
Fair Play for Women responded to today’s news in a written statement, saying that they were “surprised and disappointed”, stating that, “the Census in Scotland in 2022 will not collect clear and reliable data on sex”.
They continued: “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.”
However, the notion that this ruling has detrimental implications for data collection was contested by Dr Kevin Guyan, research fellow at the University of Glasgow and author of Queer Data: Using Gender, Sex and Sexuality Data for Action, who stated that the Court's appeal judgement is good news for academics and researchers working with quantitative data.
He stated: "Experts in quantitative data have repeatedly argued that asking respondents to self-report their sex in a census poses no threat to the overall collection of high-quality data.
"The court's ruling maintains the status-quo as it presents the same guidance as previous censuses, ensuring comparability of data over time.
"The design of census questions has a trickle-down impact on all types of data collection activities - researchers now have a clear reference point to challenge questions that ask about 'legal sex' or the information on a person's birth certificate."
Today's failed appeal concerned a case brought by Fair Play for Women earlier this month, for the “judicial review of the guidance issued by National Records of Scotland to accompany the ‘sex question’ in the 2022 Scottish Census”.
Essentially, Fair Play for Women argued, the guidance provided by National Records of Scotland that says trans people can answer the sex question in line with how they live their lives - irrespective of whether they’ve changed the sex on their birth certificate - was illegal on the grounds that it "authorises or approves unlawful conduct".
However, Lord Sandison had shot this down, confirming that ministers and the NRS were acting within their powers by issuing the guidance. In his prior ruling, he stated that: “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. The second enquiry enables the provision of further information about the basis of the answer to the first."
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