Scottish ministers’ approval of trans-inclusive guidance was lawful

The guidance says that trans men and trans women can answer the sex question in line with how they live their lives, whether or not they’ve changed the sex on their birth certificate.

Lord Sandison’s opinion states that there is no general rule of law that a person’s sex may only ever be answered by reference to the sex stated on their birth certificate or a gender recognition certificate (GRC).

Lord Sandison goes on to note that the way sex and gender are recognised by different public authorities (for example, DVLA and the passport office) reflects the modern reality that sex is not generally now regarded as a pure matter of biology, but is a more nuanced concept. For that reason, he concludes that Scottish Ministers were acting within their powers in issuing the Census guidance.

Fair Play for Women (FPFW) had applied for a judicial review to have the guidance scrapped because it objected to the fact it does not tell trans women and trans men that they must answer with the sex recorded on their birth certificate or gender recognition certificate. The judgment has the effect of rejecting FPFW’s petition for judicial review.

The case was heard by the Court of Session on 2nd February 2022.

Scottish Trans was granted permission to intervene in the case, in the public interest. Scottish Trans provided the court with a perspective of how trans men and trans women would be affected if the guidance were to be scrapped, and why it was the “right thing, both in law and for producing the best quality data, to count trans men and trans women as who they are on census day”.

Vic Valentine, Scottish Trans manager, said: “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.”

Scottish Trans was represented pro bono by the Scottish Just Law Centre at JustRight Scotland, who instructed Kay Springham QC of Compass Chambers.