The Data Bill will fail if the government can’t be clear about sex 

The Data Use and Access Bill is being debated in the House of Lords on Tuesday 19th November. 

The government promises that it will boost the UK economy by £10 billion across 10 years and free up millions of staff hours in the police and NHS, saving hundreds of millions of pounds and making it easier for people to do business and access services.

The aim is not to create a mandatory digital ID system or to introduce “ID cards”, but to create a sound basis for people and organisations to voluntarily share and use trustworthy information. 

Today, Sex Matters is publishing a report on the risks and opportunities of the bill:

Sex and the Data Bill 

CEO Maya Forstater said:

“It is a basic requirement of data protection that organisations keep the information they hold about us accurate. But when it comes to data about our sex, this principle has been ignored for decades. 

“Public bodies including the NHS, the passport office, the driving licence authority and many others have been slapdash, mixing up sex and gender identity and making it impossible to tell from official records who is really male and who is really female. This undermines everyone’s safety and privacy.

“The Data Use and Access Bill promises to enable the development of digital systems for proving who we are, and facts about ourselves. But if it relies on existing corrupted data sets, it will fail. This will cause serious harm to individuals in areas including healthcare, policing, sport and single-sex services. 

“Unless the mess over sex data is sorted out, the bill will end up costing more than it saves.”

The problem: existing data sources are unreliable

The government’s digital identities and attributes framework relies on “authoritative” sources for verifying personal information. But these sources cannot be trusted when it comes to sex. 

• Passport: recorded sex can be changed with a doctor’s note or a personal statement indicating that the person wishes to live “as the opposite gender” – 3,188 records known to be affected over the past five years. 
• Driving licence: a person’s recorded sex can be changed on request – 11,993 records known to be affected over the past six years. 
• NHS record: a person’s recorded sex can be changed on request, after which a new NHS number is issued – no information available on how many records have been changed
• UK birth certificate: this records either a person’s actual sex or their sex as modified by a gender-recognition certificate (GRC) – 8,464 records known to be affected over the past 20 years.

The result: serious harm and avoidable risk

Inaccurate and unreliable records create problems, confusion and significant risks of harm.

• People with mismatched identities risk being flagged up as a “synthetic identity” risk. This could lead to transgender people being excluded from or disadvantaged when accessing services such as banking or renting property. 
• Authorities with statutory safeguarding responsibilities will be unable to robustly assess risk related to the sex of children or vulnerable people, and the sex of potential abusers. Children’s and vulnerable people’s healthcare records being lost if they identify as transgender. 
• Illnesses may be misdiagnosed, treatments may be misprescribed and medical risks may fail to be identified if the wrong sex is stated in a person’s medical records. 
• People will be unable or less likely to access services for their sex (such as cervical and prostate screening services) if they are recorded as the wrong sex.
• Police and others aiding law enforcement risk being unable to identify people who have been recorded as the wrong sex. 
• Disclosure and Barring Service checks may fail to match an individual with their criminal record because of searching the wrong “gender”.
• Service providers will be less able to use digital verification  to develop services that create value in the economy and meet social needs, because digital records do not contain reliable sex information. 
• People risk being placed unexpectedly and non-consensually in intimate situations with members of the opposite sex, causing discomfort, humiliation and exposure.

If the government continues to develop a data verification framework that does not ensure that sex is recorded accurately and reliably, data users will have to develop workarounds that waste time and introduce complexity and risk (such as NHS radiographers being told to ask all patients if they might be pregnant because the administrative recording of patients’ sex is inaccurate). 

The solution: acting now will avoid years of costly confusion 

The fundamental requirement to fix this problem is authoritative data sources. We identify two main sources:

• Birth records: The bill makes provision for digital birth records. This register can provide an accurate source of sex data that people should be able to query to verify their sex. 
• Healthcare records: The bill makes provision for a new health and social care data standard. This must also ensure that sex is recorded accurately and would provide another authoritative source. 

Unreliable data sources on sex must be excluded from being used for verification. This means passport and driving-licence records cannot be relied on unless and until the responsible agencies demonstrate they can provide accurate information again. 

The data-verification system can be designed to ensure that the data on everyone’s sex is accurate and reliable, but doing this will take leadership.

• The government must make clear that enabling accurate everyday verification of sex is a policy objective, and give clear policy direction to officials in the Office for Digital Identities and Attributes.
• Parliament should consider amendments to the Data Bill (in the next reading) to ensure that sex data is defined clearly and can be verified. 
• The Office for Digital Identities and Attributes should investigate the issue, convene stakeholders and publish a technical paper proposing a practical approach.
• The Information Commissioner’s Office should provide detailed commentary on whether current data systems are in breach of data-protection principles, and on the proposed approach.

Parliamentary debate

We hope that the the Parliamentary debate will address:

• the lack of accurate data sources and of clear definitions of the attribute of sex
• the harms and risks this causes for groups including women, children and transgender people, and for service providers
• the resulting costs in both the public and the private sector of having to provide parallel systems for recording and verifying sex  
• the disconnect between the government’s commitment to protect single-sex services “for biological women” and the lack of a clear data framework for recording sex.