The Status of Women In Scotland – Census and Data Collection on Sex

UN Women invited submissions to the Commission on the Status of Women with information relating to alleged violations of human rights that affect the status of women in any country in the world. Our full submission can be found here but we have also turned each section into the following stand alone blog pieces:

Gender Representation on Public Boards Act I All-Women Shortlists I Census and Data Collection on Sex I Hate Crime and Public Order Act I Prisons I Women’s Services and the Genuine Occupational Requirement I Conclusions

  1. In 2018 a draft bill on the proposed (later delayed) 2021 Scottish Census was introduced. Provision was made for additional questions on sexuality and gender identity which were universally supported. However, of concern to women’s organisations was the proposal to undermine the integrity of the sex question by allowing a third “non binary” category to be introduced and guidance which would have permitted the sex question to be answered based on self-identification of gender, meaning that, in effect, there would be two questions based on self-identified gender and none on sex.
  1. A question on sex has been asked in the Census – which remains the gold standard in data collection – since 1801. Recording information on sex is vital: for planning medical services and treatment, to mitigate discrimination in recruitment and promotion, measure pay gap, tackle and record male violence, selective abortion, infanticide, FGM, participate in fair and safe sporting activity, and much more.
  1. The Parliamentary Committee charged with considering the draft bill on the census took evidence from a range of expert witnesses, including Professor Rosa Freedman who said: “At international level, the law remains that sex relates to biology. Sex is about chromosomes, gonads and genitalia. Therefore, under international human rights obligations—whether it is the Convention on the Elimination of All Forms of Discrimination against Women or the European convention on human rights—the definition of sex relates to biology. To suddenly turn the definition around and have male, female and another category, or to define sex as gender, would go against the law. If we want to change the law, the way to do it is not through conflating two things in a bill; we would need to go through the processes of changing the law.”1
  1. They also heard from Prof Susan McVie who said: “From a research point of view, we know that certain conditions—medical conditions, for example—are sex related. Regardless of a person’s gender identity, there are certain medical conditions that they will be more likely to face depending on whether they were born a man or a woman. We also know—this is probably more to do with my area—that certain social processes are differentiated for men and women. There are sex-related biases, discriminations and forms of inequality that do not necessarily go away if a person changes their gender identity.

    It is important to distinguish between sex, on the one hand, and gender identity, on the other, in order for us to understand, for example, whether trans women have worse outcomes than cis women and whether trans men have worse outcomes than cis men. If we are to properly understand the relationship between sex and gender identity and how that impacts on factors such as health, the likelihood of getting a job and attainment in education, we need to disentangle those things so that we can have a much clearer picture.”2
  1. Professor McVie also said of the guidance notes in the 2011 census which had allowed for the possibility of self identification that “I think that the General Register Office for Scotland got it wrong when it redesigned the census in 2011 and conflated sex and gender identity into one question. We are now trying to disentangle those things. Arguably, the measure of sex in the 2011 census data is not accurate.
  1. The Committee also took account of representation from professional and academic statisticians3 who wrote to urge the importance of reliable data. They concluded that the sex question should remain consistent with scientific consensus and UK law as defined in the Equality Act and record biological or legal sex.4 However, this was resisted by National Records Scotland (NRS) who took advice from the Government funded lobby groups pressing for the question to remain one of self-identification.
  1. The NRS and the Minister, Fiona Hyslop, preferred to rely on a letter signed by academics who were not experts in working with data populations. As MBM Policy concluded, it raised questions about how “far the Scottish Government feels obliged to research any representations put to it, and how far it weights these not by evidence of expertise, but by how far they align with what it wishes to hear”.5 As the Scottish Government has a policy which runs counter to preserving and upholding the legal definition of “woman” (see paragraph 12 in the Gender Representation on Public Boards Act section), the implications for proper scrutiny of the effect of eroding the quality of data is concerning.
  1. This problematic approach to data collection, irrespective of the impact on the monitoring of women’s rights or making provision for services, was highlighted in the Draft Guidance from the chief statistician6 which was similarly politically informed rather than reflecting Equality Law or statistical need. Despite citing the World Health Organisation, the Royal Statistical Society, and the USA Federal Interagency Working Group on Improving Measurement of Sexual Orientation and Gender Identity in Federal Surveys who all state that sex refers to biological characteristics, the Draft incorrectly introduced a statement that this objective and biological classification can instead be an emotional feeling.7
  1. The Draft Guidance cited Public Sector Equality Duty which requires employers to collect data on the protected characteristics of employees in order to eliminate harassment and discrimination, to advance equality, and to foster good relationships between protected groups. In UK equality law, one of those characteristics is sex.
  1. Despite this, they concluded that, in the absence of medical need, data collection by Scottish Government and Public Bodies should not be asked saying “Questions about a person’s biology should not be asked, except potentially where there is direct relevance to a person’s medical treatment. Such a question is likely to breach an individual’s human privacy.”
  1. The Guidance drew on a statement from the Equality and Human Rights Commission (EHRC) who argued that forcing individuals with a Gender Recognition Certificate to reveal their sex might constitute a breach of their human rights.8  However, this was contended in a legal opinion from Aidan O’Neill QC who said this misrepresented the law, which allowed for the collection of data on a protected characteristic in order to achieve a legitimate aim.9 Women’s rights group WPUK subsequently wrote to the CEO of the EHRC asking they withdraw the advice.
  1. The continued determination of the Scottish Government and the NRS to collect data on gender identity (which is not a category in UK law) in preference to the legally defined sex is likely to be challenged in a similar manner to the successful case brought by Fair Play For Women against the UK’s Office for National Statistics.10 That they have failed to-date to align with the recognised legal position in the UK and recognise that data on biological sex is crucial for services and monitoring inequality, suggests that women’s organisations may have to return to court to ensure they are counted.


  1. Professor Rosa Freedman, Official Report – Parliamentary Business
  2. Professor Susan McVie, Official Report – Parliamentary Business
  3. Letter from statisticians to the Committee re the census
  4. Stage 1 Report on the Census (Amendment) (Scotland) Bill
  5. MBM Policy: A tale of two letters: whose views count?
  6. Working Group on Data Collection on Sex and Gender – Draft Guidance
  7. Draft guidance on collecting sex and gender data – FWS feedback
  8. EHRC submission to Sex and Gender Working Group
  9. Scottish Legal News, 08 December 2020, “EHRC sex data advice ‘misrepresents the law'”
  10. Reuters, 17 March 2021, “UK gov’t concedes defeat to Fair Play For Women in census sex row”

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Gender Representation on Public Boards Act I All-Women Shortlists I Census and Data Collection on Sex I Hate Crime and Public Order Act I Prisons I Women’s Services and the Genuine Occupational Requirement I Conclusions