Fair Play For Women is instructing Dean of Faculty, Roddy Dunlop QC, in the case.

National Records of Scotland (NRS) operates the Scottish census under the leadership of the Registrar General for Scotland.

The guidance notes that people may self-identify when answering the sex question in the census. It states: “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).”

Dr Nicola Williams, director of Fair Play For Women, said: “There is now a separate question specifically for transgender people to register their identity in the census. There is no need to answer the question about sex with a gender identity too.”

The Census Act 1920 permits the holding of censuses and includes “sex” as one piece of information that must be asked. 

In its petition for judicial review, Fair Play For Women argues that:

• what is meant by “sex” in the 1920 Act is a matter of statutory interpretation. There is no provision currently recognised in law that permits any form of self-identification to affect one’s legally registered sex.
• the guidance authorises and approves conduct which could amount to an offence under the 1920 Act. The guidance is therefore unlawful and should be reduced as sought by the petitioner.

National Records for Scotland has declined to withdraw the guidance on the basis it is not unlawful.

It said: “NRS consider that the published guidance relating to Scotland’s Census 2022 in its current terms is not unlawful, and that the section relating to the question of ‘what is your sex’ will not be withdrawn and re-worded.”

Dr Williams said: “There are huge differences between males and females in the UK, in critical areas such as crime statistics. That’s why accurate recording of sex matters. The High Court in England backed our position and we are confident that the Scottish court will see it the same way.”