Sex, trans rights and the Scottish census

It takes some doing to make a census interesting. So congratulations to the National Records of Scotland (NRS). NRS, which administers the decennial survey, is facing a judicial review over its guidance on the document. On the question of sex, it states that 'if you are transgender the answer you give can be different from what is on your birth certificate'. That is, something other than your legal sex. Feminist group Fair Play For Women will challenge this guidance at the Court of Session on 2 February.

If this sounds familiar, it’s because similar guidance for last year’s census in England and Wales was challenged at the High Court and found to be unlawful. In response, the Official for National Statistics went ahead with a binary question on sex and an optional question on 'gender identity'. Fair Play For Women brought the English case and is hoping to have similar success in Scotland. They want robust data on sex, not gender identity.

The consequences of collapsing sex into a matter of identification are obvious. For one, if Fair Play For Women loses its Scottish case after winning its English case, it would imply that sex changes at the border from a question of law and biology to a matter of personal feeling. It would also represent a major ideological victory for a movement that seeks to submit objective truth to the caprices of identity politics. 

It’s highly commendable that Fair Play For Women is challenging these policies in court, but why are they having to? Why isn’t the Scottish government concerned about the impact on statistical integrity? Census data is used to design policies and services. So why aren’t more professionals and organisations in these fields speaking up?  

Women who object to the Scottish census guidance see in its conflation of sex and gender identity a demeaning, dangerous and unlawful erasure of women as a sex. Deliberately gathering data so that it obscures something as fundamental as how many women there are living in the country not only risks ineffective policy, but sets a tone about the worth of women in society. This isn’t another round of the 'culture wars': it's about the rights, dignity and fair treatment of real people.

Trans people who want to be able to record their gender identity will have the option of answering a separate, optional question on gender status. This seems like a sensible compromise, balancing the mandatory sex question with an opportunity for trans people to record their identity (it also collects useful data on the size of the trans population). But some trans people feel it is demeaning to be required to record a biological or legal sex which they do not wish to recognise.

It’s difficult to see how this dilemma can be resolved in a way satisfactory to both groups. But NRS has taken a decision to resolve it to the liking of one. Theirs is, by effect if not by intention, an ideological decision that allies them with one side of an ongoing public debate. It is politics, not statistics.

The rancour in Scotland is increasing. Kate Forbes, the government’s finance secretary, has expressed scepticism about rewriting the Gender Recognition Act (GRA) to make gender a matter of self-identification. In a new interview with Holyrood magazine, Forbes says ‘there’s more fear, entrenchment, and vitriol’ to this debate than even when it first appeared on the Scottish parliament’s radar in 2019. (The magazine also reports that a debate for reforming the GRA will be held next month.)

Forbes believes ‘we need to ensure we are listening to all voices’ and notes that ‘it’s an issue that mums and dads ask me about in relation to their children or their schools’. The nationalist politician comes at this issue from a different background than most of the women on the gender-critical side. She is a Christian and is no stranger to the wrath of progressives. Her faith is probably why she argues:

“Tolerance can only exist between people who fundamentally disagree with each other. To preach tolerance means you must be willing to speak to and be open to the views you do not share. Tolerance cannot exist when everyone agrees, so if anyone cares about tolerance in the Scotland of 2022, then we need to be more comfortable debating and discussing challenging issues with people who fundamentally disagree with us.

It’s odd reading those words today. Not long ago, they would have been banal. Today, preaching tolerance means advocating for ‘hate’, giving a platform to bigots, and endangering lives. Not only have the customs of democratic debate broken down, so too has the idea that debate is necessary. If the world is divided into enlightened progressives and harm-causing haters, why should there be any discussion? Why shouldn’t the progressives impose their preferences through laws and institutions? 

Nothing good ever comes from speaking or writing about this issue. The ideological certainties are too entrenched, mainstream opinion too perplexed or terrified even for straightforward explanation. Everyone not involved in hostilities wishes the whole thing would go away. It won’t. These matters are only going to take up more of our time. Pretending it’s not happening isn’t an option.

So there will have to be a debate, one that reflects the interests of women and upholds the dignity of trans people. I would like to think that Fair Play for Women and Kate Forbes are leading the way. I would like to think that a combination of legal action and tolerance can rescue us from this harsh, unyielding moment. That we can return to respect, free conscience and compromise, or forge a way forward that incorporates their lessons. I am less convinced than ever that we can.