The government’s Data Bill: sleepwalking into self-ID?
The first day of the committee stage of Parliamentary scrutiny in the House of Lords on the government’s Data (Use and Access) Bill was on 3rd December 2024. Several peers moved and supported amendments to address the problem with unreliable sex data that Sex Matters has been raising.
The Science, Innovation and Technology minister, Baroness Jones of Whitchurch, gave a disappointing response dismissing the concerns. The worry now is that the government is sleepwalking into gender self-ID.
These three amendments showed how the problem could be solved, if the government wakes up to the problem and shows leadership. They offer three complementary legislative solutions to unreliable data.
Solution 1: Data dictionary
Lord Lucas (Conservative) introduced an amendment to develop a data dictionary to be used across digital verification services, registers of births and deaths and public data in general.
In his speech he focused on the attribute of sex:
“One would have thought that sex means male or female and, in fact, properly construed, there are only two sexes, and I hope the Supreme Court will agree in due course. Gender can be as wide as you like, but sex has two possible values, male or female. If we are collecting data on that in the National Health Service, the police service and other aspects of life to see whether we are treating men and women equally, it is very important that that data item should mean the same thing.”
He pointed out that police now routinely record rapes as being committed by women because the perpetrator chooses to identify as a woman.
The peer also highlighted recording of sex by the National Health Service:
“because male and female physiology differs, and if someone is a candidate for a particular treatment, it may well depend on their sex.”
He gave the example of blood transfusions: it is important to know whether donated blood came from a man or a woman.
Solution 2: Assess the quality of data from public sources
Lord Arbuthnot of Edrom (Conservative) followed, thanking Sex Matters for our briefing. He introduced two amendments which seek to ensure that data provided by public sources to underpin the provision of data verification services (DVS) are reliable.
The first amendment was to require the Secretary of State of Science, Innovation and Technology to include in the DVS framework an assessment of whether key public data sources are reliable.
Lord Arbuthnot said:
“The Bill contains provision to secure the reliability of digital verification services by means of a carefully constructed framework, a register of providers, an information gateway and a trust mark, but there is a flaw, which my noble friend has referred to, and it has been pointed out by the human-rights charity Sex Matters. The digital verification system that has recently been published in its gamma edition, after several years of development, assumes that government sources are reliable and accurate, but, when it comes to the attribute of sex — whether someone is male or female — we know that those records are not accurate or reliable.”
Lord Arbuthnot explained that as long as the DVS system relies on sources such as passports and driving licences, neither the Passport Office nor the driving-licence authority can reliably attest to anyone’s sex because for decades both have allowed people to change their recorded sex.
He talked about the importance for practical situations, such as women’s rape crisis centres and female prisons, of having accurate records. He said that the historical practice of changing government records to enable people who identify as transgender to live, work and travel as a different gender had been a humane solution to a genuine issue, but it had rendered those records inaccurate.
“A digital solution would keep everyone’s personal information accurate but allow anyone to keep any piece of personal information private in any situation or transaction, as I can do with my name and date of birth using an age-verification app.”
Solution 3: Keep inaccurate and unreliable information sources out of the information gateway
His second amendment would create a quality-assurance requirement for public authorities to ensure that they do not provide information about an individual that does not meet the basic expectation of integrity – that is, that it is accurate, has not been tampered with and is accompanied by clear metadata that describe the data so that its meaning cannot be misconstrued.
Lord Arbuthnot said:
“These are the same requirements that private-sector providers certified under the trust framework must meet, and it seems right that public bodies should give a similar level of assurance of the integrity of the data that they provide. As I have said, public bodies have been modifying data with the best of intentions but, nonetheless, causing a problem for data integrity.”
He explained that it is not enough that a field contains the information “male” or “female” if it is not reliable. This data must be recorded in a way that makes clear that it is accurate and has not been tampered with, modified or confused.
Lord Arbuthnot said that at the bill’s second reading, the minister had given him the impression that she did not recognise the problem of inaccurate and unreliable sex data provided by public authorities such as the Passport Office. He asked the minister to find out whether the information regulator – the Information Commissioner’s Office – views data controllers as breaching data-protection principles if they fail to treat sex data with the same principles of accuracy and integrity as other data.
Support for the amendments
The Earl of Erroll (cross-bench) also spoke up on the issue of unreliable and inaccurate sex data and supported the amendments of Lords Arbuthnot and Lucas.
“The noble Lord is absolutely correct that biological or genetic sex is vital when applying medicines and various other things. You have to know that you are administering certain drugs properly.“
He also highlighted the need for clear sex data for sport.
He suggested that the answer might be that two categories are needed, such as “current gender” alongside “sex at birth”.
“Someone can then decide to use ‘current gender’ for certain purposes, including for such things as passports and driving licences, where people do not want to be asked questions – ‘Oh, do you mean you’re not?’ – because they look completely different.”
It is good to see peers such as the Earl of Erroll engaging in detail on this issue, but we do not think this approach is quite right: this is because “gender” is neither definable nor verifiable. The advantage of digital-identity applications is that they solve the problem the Earl of Erroll described without requiring a second set of categories: people who don’t want to be asked awkward questions about their sex can simply choose not to share that piece of information digitally where it is not needed (such as when proving their age or picking up a parcel). They may announce to the world that they are a “trans woman” “non-binary”, “gender-diverse” or any other personal characteristic if they wish – they don’t need a government-verified identity to do so (and it doesn’t change their sex).
“I was quite surprised. I had not realised that it is possible to change your stated sex on your passport in the way that has taken place. The noble Lord referred to the more than 3,000 cases of this; for driving licences, there have been more than 15,000.
“I agree with Sex Matters when it says that this could lead to a loss of trust in the system.”
Like Lord Erroll, he suggested that it might be possible to have both “sex” and “gender” on a passport (we disagree, and will publish something on this question soon).
He called on the minister to give an assurance that the information on which the DVS scheme is based will be accurate.
“That must be a fundamental underlying principle.”
He was also supportive of the idea of a data dictionary to provide standardised definitions in order to avoid confusion and ensure that data used in government services is accurate, reliable and consistent.
Amendment 34 (assessment of public sources)
“This amendment addresses the essential issue of trust and reliability in the digital verification process. We increasingly rely on digital systems to confirm identity, and for these systems to be effective, we have to make sure that the core information they are verifying is accurate and consistent. If individuals’ key identifying details – date of birth, place of birth and, as we heard very powerfully, sex at birth – are not consistently or accurately recorded across various official databases, it undermines the integrity of the digital verification process. It is important that we have consistency across the public authorities listed in this amendment. By assessing whether these bodies are accurately verifying and maintaining this data, we can ensure uniformity in the information they provide. This consistency is essential for establishing a reliable foundation for digital verification.”
Amendment 48 (quality assurance of public sources)
“By requiring public authorities to attest to the accuracy, integrity and clarity of the data they disclose, the amendment would help to protect the privacy of individuals and ensure that their personal information was handled with the proper care and respect.”
“On Amendments 34, 48 and 200, the Government believe that recording, storing and sharing accurate data is essential to deliver services that meet citizens’ needs. Public sector data about sex and gender is collected based on user needs for data and any applicable legislation. As noble Lords have said, definitions and concepts of sex and gender differ.
“Amendment 48 would require that any information shared must be accurate, trusted and accompanied by meta data. Depending on the noble Lord’s intentions here, this could either duplicate existing protections under data protection legislation or, potentially, conflict with them and other legal obligations.
“The measures in Part 2 of the Bill are intended to secure the reliability of the process by which citizens verify their data. It is not intended to create new ways to determine a person’s sex or gender but rather to allow people to digitally verify the facts about themselves based on documents that already exist. It worries me that, if noble Lords pursued their arguments, we could end up with a passport saying one thing and a digital record saying something different. We have to go back to the original source documents, such as passports and birth certificates, and rely on them for accuracy, which would then feed into the digital record – otherwise, as I say, we could end up pointing in two different directions.”
This response from the minister was both surprising and inadequate. It is unclear how the government has failed to recognise the issue given that data accuracy, accessibility and efficiency are so central to the bill, and it is alarming to see these serious concerns dismissed out of hand.
It is concerning that the minister seems to have been misinformed and poorly briefed. She seems to have been led to believe that passports, driving licences and birth certificates can be relied on to match each other. They cannot: an individual may have a birth certificate which shows either their sex or a record that has been modified by a gender-recognition certificate. An individual may have a passport, driving licence, or NHS record that shows either their sex or a record that has been modified at their request – and those records will not necessarily match. Currently, none of these records can be relied upon to verify a person’s sex.
If false records are allowed to proliferate through a dataset, it cannot be said to contain accurate information. The Data Bill will usher in “self-ID by the back door” unless it secures accurate sex data.
In dismissing Lord Arbuthnot’s amendment, Baroness Jones said that the requirement that any information shared must be accurate, trusted and accompanied by metadata would duplicate existing protections under data-protection legislation. Yet she did not take up his suggestion to enquire of the Information Commissioner’s Office whether current practices of misrecording sex really are in line with data-protection legislation.
We have written to the minister asking her to meet with us and to ask the ICO for an answer on this question.
