Inner House upholds ruling that transgender people can self-identify for 2022 Scottish census

Lady Dorrian

About this case:

• Citation:
  [2022] CSIH 7
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Dorrian

Fair Play for Women Scotland Ltd made an urgent appeal after Lord Sandison ruled on 17 February that transgender people would be able to answer the question “What is your sex?” with the gender they identified as irrespective of whether they possessed a Gender Recognition Certificate.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Malcolm and Lord Boyd of Duncansby. G Moynihan QC appeared for the reclaimers and D Ross QC and P Reid, advocate, for the Registrar General for Scotland and the Scottish Ministers.

No general rule

The reclaimers maintained that the issued guidance in respect of the sex question, which stated that the answer a person could give could be different from what was written on their birth certificate, was unlawful as it allowed the use of a document other than a birth certificate or GRC to be the basis of an answer. In a similar legal challenge relating to the 2021 English census, the High Court held that a person’s “sex” could only be determined by reference to these documents.

In his decision, Lord Sandison noted it would be difficult to reconcile the fact that facilities were available for important documents such as passports and driving licences to be issued by reference to a person’s lived sex with a general legal rule that a person’s sex could only be that recorded on a birth certificate. Without the ability to discern such a legal rule from the authorities provided, he determined that he could not conclude that the guidance was unlawful.

Senior counsel for the reclaimers argued that, while the terms “sex” and “gender” were interchangeable to a degree, the default position was that sex was binary and gender was not. The guidance conflated a binary issue with a non-binary one but only offered the possibility of a binary answer, thus allowing for certain persons to answer the question falsely. Further, while it was possible to obtain certain documents in a person’s lived gender, this was not solely the result of self-identification, which by default the law did not allow.

It was submitted for the respondents that an answer to the question made in good faith and on reasonable grounds could not be considered a false answer. To interpret the question as meaning ‘what is your sex on census day’ was consistent with the purpose of the question and avoided both the risk of penalisation and the narrow approach urged by the reclaimers.

Popular and common meaning

Delivering the opinion of the court, Lady Dorrian observed: “[The reclaimers’] proposition rested largely on the submission that for the purposes of statutory construction there was a default definition of sex which involved the adoption of a binary biological categorisation of male and female. In our opinion the Lord Ordinary was correct to hold that there is no universal legal definition of the word ‘sex’ which applied by default, and which, in particular, required to be adopted for the purposes of the [Census Act 1920].”

Considering the purpose of the census, she said: “Its primary purpose is to gain information about the population and it does that as a ‘snapshot’ exercise across the country on one particular day. The census form is, perhaps more than any other official document, a public facing one, seeking responses from the populace about a whole raft of things, some of which may, as the Lord Ordinary noted, contain to a greater or lesser extent subjective elements.”

She explained further: “It is to be expected that the language used, and the meaning to be attributed to the words used, are to be interpreted according to their popular and common meaning, not according to a specialist, restricted definition which may be adopted where matters of status and rights may be in issue. This applies not only to the census form but to the identification of the relevant particulars which may be required under the 1920 Act.”

Addressing whether there was any issue in deciding the case differently to the English census case, Lady Dorrian concluded: “We do not derive assistance from that case. It was a decision made only on the basis of the existence of a prima facie case, and the matter was disposed of by concession. The prima facie arguments were not tested in developed argument. Nor do we see it as a problem that there may be a divergence between jurisdictions in this respect. There are already divergences in the specification of particulars which may be required and there is no requirement that the questions posed for shared particulars be expressed in the same manner in each jurisdiction.”

She added in postscript: “Given the tight timescale before the start of the census and the consequential need for an expedited decision, we have not addressed in detail all the matters addressed in the opinion of the Lord Ordinary, however we endorse all of his reasoning.”

The reclaiming motion was therefore refused.