For Women Scotland

Census Briefing Notes

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Briefing Notes: Stage One Debate on the Census (Amendment) (Scotland) Bill

Background

For Women Scotland was delighted to have had the opportunity to give evidence at committee stage regarding proposed changes to the 2021 census.

We fully support the proposal to gather data with regard to gender identity and sexual orientation and, due to the sensitive nature of these questions, that this should be done on a voluntary basis. The census is an ideal way to gather detail on small populations to better enable provisions.

The committee also considered calls to conflate sex and gender identity within the compulsory M/F question or to add the category “other”. The Stage 1 report was clear in recommending that these characteristics should remain distinct and that a non-binary option should not be added.

The Census

The census is extremely important for the planning and provision of services as it allows analysis at a level of detail that sample surveys cannot. It is also expensive: the 2011 census cost nearly £64 million. It is all the more important, therefore that the data produced should be as complete, accurate and useful as possible: the census exists to enable users to make the best possible assessment of future provisions.

Data on Sex

At the committee stage, data users highlighted the importance of the data on sex for services including health, education, employment and equality planning.

Scientifically, sex is dimorphic and immutable: any change in policy should be informed by the scientific and the medical view which remains consistent. Sex difference affects many aspects of life and remains relevant despite social conditions or identity. The sex data is widely held to be the most important and most utilized data point from the census.

Robust definitions and analysis is crucial for several key areas:

  • Healthcare: the progression, presentation and outcome of conditions and diseases vary dramatically between the sexes (this is also under-researched); Some conditions and healthcare services are only applicable to one sex; while the planning of distinct services relies on NHS data, the census, nevertheless, informs the allocation of resources.
  • Sex-based discrimination especially in employment
  • To assess different outcomes in education between the sexes
  • Women are disproportionately more likely to need access to public services in Scotland

The NRS has confirmed that even were they to change the sex question, they would still release the data on a binary basis which they would allocate. While, currently, this can be estimated, over time, as the baseline data is corrupted, it would become less accurate. This would be even more pronounced were people allowed to self-identify their sex: should the question on “sex” become in practice a question on gender identity, it could materially impact the data. While differences at the level of the whole population might be small, they could become significant for particular sub-groups, perhaps most obviously by age. Recent surveys suggest that while the overall figures for trans-identified individuals remain small, they are increasing at a rapid rate especially in the under 30 demographic and in certain social classes. We would also be concerned that there would be a opening for “mischief” were the sex question to be untied from legal and scientific mooring. Losing reliable data on sex will make it harder to analyse how well Equality Act protections are being upheld across the population.

The Equality Act 2010 is the main piece of legislation which protects people against discrimination or unfair treatment. Sex is one of nine “protected characteristics” under the Act. The Act also requires public authorities to eliminate unlawful discrimination and advance equality of opportunity based specifically on each of the protected characteristics. The Office for National Statistics has confirmed that in the 2021 Census for England and Wales a binary sex question is needed for public bodies to uphold their duties under the Equality Act 2010.

It is becoming increasing difficult in practice to uphold the “sex” protections afforded by the Act. We recently witnessed how problematic it is to invoke this exception: this week, a women’s festival which tried, in limited circumstances, to invoke a very liberal interpretation of the law was threatened and partners pulled out. The recourse to redress this is woefully inadequate and the advice is muddled. This is not helped by the fact that the women’s groups officially funded by the Scottish Government have a mandated inclusion policy which informs their output on this issue and sometimes leads them to positions which are inconsistent in law. We understand that some correspondents are trying to claim that the internal policy of these women’s groups overrides statute in this area which is a dangerous precedent. While this is not directly relevant to the question of the census, it is crucial that Parliament does not introduce additional legal confusion or inconsistency which will further blur the definitions.

Gender Identity and Sexual Orientation

We recognize that there is value in collecting data on gender identity and sexual orientation. In order for these to be robust, however, so must the definition of sex. The census is an ideal way to collect population data on these small groups, however, it would be very easy to pollute this information: for example, it would not require huge numbers of legal heterosexual males who self-identified as female to corrupt the data on same-sex attracted females. If we are to collect information to protect and provide for people on the grounds of sexuality – also a protected characteristic in the Act – it must also be reliable and have a definition consistent with the Act. This is even more vital in what will be a base year.

Similarly a gender identity question would directly relate to the sex question. It would provide an ideal method to assess this population: we consistently hear about different outcomes and needs for this section of society, but without the data, this is difficult to assess. Consequently, we are bewildered that some would rather hide this group under the sex question. There is no value for the data users and no positive applications for the trans population if service providers cannot plan for them which must, surely, be apparent to those tasked with advocating for them. Indeed it seems that the sole benefit of this is one of self validation. While we understand this may be reassuring on a personal level, it is not really a proportionate reason for corrupting the data: the census is an expensive use of public funds and, as such, must be as accurate as possible in order to have value for all users.

Conclusion

The census occurs once-in-a-decade, so it is crucial we gather the best and most accurate data.  We have seen wider societal change, however, we also know that sex-based discrimination is as pervasive as ever and that more needs to be done to tackle inequality of outcomes for many groups. We believe that the committee’s recommendations to avoid the conflation of sex and gender are sound and pragmatic, being based on thorough, thoughtful advice from lawyers, statisticians, data users, medical professionals, members of the LGBT community and independent women’s groups. We welcome their proposals and hope that the Scottish Parliament will be guided by them and the professionals who informed their decision.