Outer House rejects contention that guidance for answering ‘sex question’ in 2022 census is legally invalid

About this case:

• Citation:
  [2022] CSOH 20
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

It was contended by Fair Play For Women Ltd that guidance on how to answer the question “What is your sex?” approved unlawful conduct in the sense that a respondent could answer it by giving a sex other than the one on their birth certificate or a Gender Recognition Certificate. The Registrar General for Scotland and the Scottish Ministers maintained the guidance was entirely legal.

The petition was heard by Lord Sandison in the Outer House of the Court of Session. Roddy Dunlop QC, Dean of Faculty, appeared for the petitioner and D Ross QC and P Reid, advocate, for the respondents. An intervention in the case was made at the court’s behest by the Equality Network, who were represented by K Springham QC.

No settled meaning

The NRC guidance, which was issued in August 2021, stated that transgender people were able to give an answer to the “sex question” that was different to the sex stated on their birth certificate, including where they did not have a GRC. An optional question in the census about the respondent’s trans status or history was also included.

In the 2011 Scottish census, guidance was issued that also stated transgender people should select the option for the sex they identified as. While attempts were made in October 2018 by the Scottish Ministers to provide additional clarity as to what was meant by the word in Scots law, it was observed that the term “sex” had no specific definition in the Census Act 1920, which provided the framework for all censuses in the United Kingdom since its coming into force.

In common with most other questions in the census, a respondent who refused to answer the sex question, or who provided a false answer, would be subject to a fine of up to £1,000. It was noted that the petitioner had made a similar action in relation to the 2021 census in England and Wales, where a High Court judge held that the references in that census to sex referred to a person’s sex as recognised by law and not that with which the person self-identified.

It was submitted for the petitioner that the objective intention of Parliament was that sex was to be taken as a person’s legally recorded sex on a birth certificate or GRC. There was no reason to suppose that the 1920 Act ought to be construed differently in Scotland to the way it had been in England, and it was inconsistent with other law to not distinguish between the concepts of sex and gender.

The submission of the respondent, which were adopted by the intervener, was that sex and gender were not terms with settled, distinct meanings, either in a legal context or more generally. A respondent could reasonably read the sex question as referring to any of biological sex, sex recognised by law, or self-identified sex, and thus was unlikely to give a false answer, or at the very least would be entitled to the presumption against doubtful penalisation.

Wide and general purpose

In his decision, Lord Sandison began by noting generally: “Examples of state recognition of a person’s sex as different from that set out in a birth certificate or GRC are to be found in the facilities made available for important documents such as a driving licence or passport to be issued by reference to a person’s lived sex. It is very difficult indeed to reconcile the provision of such facilities with any general legal rule that a person’s sex can only be considered to be that recorded on a birth certificate or GRC.”

Turning to the use of “sex” within the 1920 Act, he said: “The only duties which a respondent to the census has is to answer all the mandatory questions posed (of which the sex question is one) and to not to provide a false answer to any question. The core issue in this case, then, is not directly what the meaning of ‘sex’ in the Schedule to the 1920 Act might be, but is, rather, the related but distinct issue of what a false answer to the question actually posed in accordance with the primary and subordinate legislation might be.”

On this point, Lord Sandison observed: “Most questions, including the sex question, refer expressly neither to some objective legal criterion nor to mere subjective opinion. In that category of question, it is difficult to escape the conclusion that an answer provided in good faith and on reasonable grounds would not be a false answer in the relevant sense, even if persons other than the respondent providing it might not think it the ‘right’ answer.”

He continued: “Leaving aside very extreme cases, and even though the question on its face asks for an objective rather than subjective response, it is difficult to see how an answer provided in good faith and on reasonable grounds could be castigated as a false one for the purposes of the census legislation.”

Lord Sandison concluded: “In the modern age, where social change has meant that [transgender] issues are much more openly and widely discussed and debated, I would find it impossible to find that the word ‘sex’ in a statute enabling the general population to be asked questions for the wide and general purposes for which a census is conducted falls to be regarded as restricted in the sense for which the petitioner contends; rather, I would accept the suggestion that biological sex, sex recognised by law, or self-identified sex as at the date of the census are all capable of being comprehended within the word.”

The petition was therefore refused.