Court upholds Census guidance allowing trans men and women to self-identify their lived sex

By Willie Macken

Lord Sandison held in the Outer House of the Court of Session today that Scottish Ministers acted within their lawful powers by approving trans-inclusive guidance for the ‘sex question’ on the next Scottish Census.

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.

His opinion finds 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.

A group called ‘Fair Play for Women’ (FPFW) had applied for a Judicial Review to have the guidance scrapped, because they 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 2^nd February 2022.

Scottish Trans were 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 impacted 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:  “We are pleased that Lord Sandison has held that the guidance produced to go alongside the Census is lawful. Scotland’s Census is meant to count everyone in Scotland as who they are on Census Day, and the guidance provided reassures trans men and trans women that this is the same for them as it is for everyone else.

“This is an important decision: clearly stating that all trans men and trans women are able to be counted on the Census as who they are, not just those who have changed the sex on their birth certificate.

“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 were represented pro bono by the Scottish Just Law Centre at JustRight Scotland; Kay Springham QC.,  pictured left, was instructed as advocate.

Jen Ang, Director at JustRight Scotland says:  “We are pleased to have been able to support Scottish Trans to intervene in this case and that the written intervention provided helpful evidence to the court.  The Scottish Just Law Centre was founded in order to ensure that third sector organisations like Scottish Trans have a fair opportunity to participate in legal processes where the outcome of a court decision directly affects them and those they support. We look forward to continuing to support individuals and organisations in Scotland to participate in important legal cases, like this one – sharing their evidence and experience on issues of discrimination and inequality.’

Meanwhile, LGBTI group the Equality Network, and its trans equality project Scottish Trans, have welcomed today’s BBC opinion poll on reform of the Gender Recognition Act.

In the poll, 57% of people overall supported simplifying the process for obtaining a gender recognition certificate, with only 20% opposed. Women are even more supportive, with 63% in favour, and only 15% opposed. Amongst people under 35, 70% support simplification, with 15% opposed.

People who have been following the debate on this closely are also more supportive, with 72% supporting reform.

The poll shows that having a close friend or family member who is trans makes a person much more supportive of all the proposals in the Scottish Government draft reform bill. Amongst those people, who know a trans person well, clear majorities support simplifying the process (79%), reducing the waiting time from 2 years to 6 months (59%) and reducing the minimum age for obtaining a gender recognition certificate from 18 to 16 (54%).

And a majority (57%) of people who have a trans friend or family member also support the legal recognition of non-binary people, something that the Scottish Government are not currently proposing.