Trans people can self-ID in census, confirms judge in landmark ruling

Trans people can self-identify when filling out a question on sex in the Scottish census, a judge has said in a landmark ruling.

Initial guidance from the Scottish government stated that people could answer the sex question in the census based on their biological sex, their legal sex according to their birth certificate or gender recognition certificate (GRC), or on how they live their lives.

But the anti-trans lobby group Fair Play for Women applied for a judicial review to have the guidance scrapped, insisting that trans folk should only be able to answer the question with their biological sex.

Less than one per cent of trans people in the UK have a GRC, which allows them to legally change their sex, and the process to obtain one is lengthy, intrusive and difficult.

Fair Play for Women’s judicial review progressed to court on 2 February, but on Thursday (17 February), it was dismissed by Scotland’s Court of Session.

In his opinion, judge Lord Sandison said: “In the modern age, where social change has meant that such issues are much more openly and widely discussed and debated, I would find it impossible to find that the word ‘sex’ in a statute enabling the general population to be asked questions for the wide and general purposes for which a census is conducted falls to be regarded as restricted in the sense for which the petitioner contends.

“Rather, I would accept the suggestion that biological sex, sex recognised by law, or self-identified (or ‘lived’) sex as at the date of the census are all capable of being comprehended within the word.”

When the census is published, the accompanying guidance on the question on sex will read: “If you are transgender, the answer you give can be different from what is on your birth certificate. You do not need a gender recognition certificate.”

Fair Play for Women have said they are “disappointed” with the ruling, and are planning to appeal.

In a statement Vic Valentine, manager of Scottish Trans which was approved to intervene in the case, 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.”

The Scottish census is compulsory, and can be filled out online from 1 March. The official census day is 20 March.