The Outer House of the Court of Session in Scotland handed down judgment last week in Fair Play For Women’s challenge to guidance on the census. National Records Scotland plans to tell members of the public that if they are transgender, they can choose how to answer the sex question.
There is still everything to play for. Fair Play for Women got permission to appeal this judgment. This is happening tomorrow. You can support their crowdfunder here.
There’s a lot of complicated scholarship in the 32-page judgment, but in truth the point is simplicity itself. We can explain it in half a page.
The Census Act 1920 authorises the Crown to direct the taking of a census and specifies what information a census may collect. One of the particulars a census is permitted to collect is “sex”. The form of the census questions is prescribed by law. The sex question simply asks: “What is your sex?” and offers only two answers.
Answers to the census have to be true: giving a false answer is an offence punishable by a fine. For some census questions, it’s clear that what you are being asked involves some subjective judgment, for example, “How is your health in general?”, with the available options being “Very good”, “Good”, “Fair”, “Bad” or Very Bad”. But the sex question is about a hard-edged, objective fact in the same way as the question “What is your date of birth?”
Your sex as a matter of law is determined by your biology, not by what was written on a piece of paper when you were born. The sex comes first, and the birth certificate records the fact. If someone made a mistake in the paperwork when a child was registered, it wouldn’t change the child’s sex: it would mean there was an administrative error to be rectified. One hundred and sixty-six million children under five around the world have not had their births registered at all. They lack a birth certificate, but they do not lack a sex. If any of those children find themselves in the UK, they can still be recorded simply in the census, because “what is your sex?” is not a question about your paperwork: it’s a question about your body.
There is one exception, and one only. If you have a gender recognition certificate, it deems you to have changed sex. If you are female your GRC creates a legal fiction that you are male, and if you are male it creates a legal fiction that you are female. This means that if you have a GRC, you are allowed to give an answer to the sex question on the census that is not literally true. But if you don’t have a GRC, you have to tell the truth. It is fanciful to suggest that in 1920, Parliament intended “sex” to mean “your sex or the sex you wish you were”.
That’s it, really. It’s obvious what the legislation means by sex, and it’s obvious that respondents to the census are required to tell the truth in all cases except where a GRC sanctions an untrue answer.
We hope that the outcome of tomorrow’s appeal recognises the importance of reality, and truth.