On the 22nd of September, the Scottish Government’s Sex & Gender Data Working Group published guidance on the production & publication of sex, gender and trans status(gender modality) data by public bodies. The guidance is updated from the daft guidance, which the working group took feedback on in December. Here I will highlight key strengths and weaknesses of the new guidance as well as questions it leaves unanswered.
Acknowledges the conflation of sex & gender
Although the guidance sets out some rough definitions of sex, gender and what it means to be transgender it identifies that these concepts don’t have commonly agreed-upon definitions. Recognizing this they go on to make the important point that:
“For the overwhelming majority of people, all the factors involved in determining sex and gender identity are aligned. For some people, there are differences. People will not necessarily answer a question about their sex in exactly the same way: most will need no reflection at all, some will think about their biology, some their legal sex and some their self-defined sex.”(p8)
This highlights two key points. First, you can’t take for granted that everyone is interpreting sex questions the same way. Second, for people who identify with their sex assigned at birth (cisgender people) sex and gender are always conflated. If a cis person provides data on one they are providing data on the other. This means that the issue of what we wish to represent with sex/gender questions is primarily about the representation of trans people.
The guidance goes on to identify that previously most forms of data collection include no specification on what they mean by the term sex. It accepts that until recently there has been little to no attempt to represent trans people in data.
Emphases the importance of choice
Throughout the guidance, there is emphasis on allowing respondents to choose not to disclose information. All of the example questions they provide are optional questions with an option to “prefer not to say”. This is generally good data collection practice as it respects people’s privacy but is particularly important when collecting data from marginalised groups, for whom that information is particularly sensitive.
The legal sex myth
Both versions of the guidance include the concept of “legal sex” in reference to how a person’s sex is registered on their birth certificate. For trans people, this means that their “legal sex” will be in opposition to their gender/self-defined sex unless they have a Gender Recognition Certificate(GRC). In terms of collecting data to understand who engages with a service, there is little purpose in recording this conceptualisation of legal sex. For cis people, this information will be the same as if you asked them any other sex/gender question. For trans people, legal sex questions count comparable trans people differently based on if they have a GRC or not, which has no direct relevance to how they engage with or experience public bodies or how they are perceived.
Based on statements from the Equality and Human Rights Commission(EHRC) the guidance claims that:
“in UK law sex is understood as binary and a person’s legal sex is determined by what is recorded on a person’s birth certificate. A trans person can change their legal sex by obtaining a GRC and a trans person who does not obtain a GRC retains the (legal) sex recorded on their birth certificate for legal purposes.”(p7)
This is a contested point in law. In their recent paper Collier & Cowan(2021)state there is no one legal definition of sex or gender in UK law. They explain that the concepts of sex and gender are not defined in either the Gender Recognition Act(2004) or the Equality Act(2010).
When considering conceptualisations of sex and gender it’s important to consider what that information could be used for. What purpose would knowing the sex according to someone’s birth certificate/GRC serve? Keeping in mind that this guidance is primarily about the representation of trans people this is a question of, what purpose would counting comparable trans differently people based on if they have a GRC or not serve? The EHRC guidance cited by the Sex and Gender Data Working Group said:
“a trans person is protected from sex discrimination on the basis of their legal sex. This means that a trans woman who does not hold a GRC and is therefore legally male would be treated as male for the purposes of the sex discrimination provisions, and a trans woman with a GRC would be treated as female. The sex discrimination exceptions in the Equality Act therefore apply differently to a trans person with a GRC or without a GRC.”
As stated previously The Equality Act (2010), which pertains to sex discrimination, does not define the concept of sex. This means that this stance from the EHRC is not specifically stated in the legislation. When providing evidence on the reform of the Gender Recognition Act Cowan also drew attention to the fact that regardless of how sex is defined the Equality Act(2010), everyone is protected against discrimination on the basis of perception. So if you are discriminated against due to how someone perceives your sex then you are protected by the Equality Act regardless of what your birth certificate states.
Given this, the purpose of recording data on “legal sex” must specifically relate to discrimination exemptions. These are situations in which it’s not considered discrimination to exclude someone based on sex or gender reassignment(being trans). However, Cowan also noted that the Equality Act(2010) sets very specific and stringent criteria that service providers must meet if they were to exclude anyone from their services on this basis. This criteria prevents outright bans on trans people or people assigned a specific sex at birth. Given this, if we were to take the EHRC’s conceptualisation of legal sex at face value, it still isn’t worth including in data collection practices. If someone’s legal sex differs from their gender their legal sex will not as a rule impact how they engage with a public bodies.
When to record sex?
The guidance mostly promotes questions on lived sex/gender as well as gender modality. It also states that in some circumstances biological or legal sex data should be recorded. However, it is vague about what these circumstances may be.
As previously established legal sex had very little value as a concept for data collection. However, despite this the guidance states that:
“there may be a small number of circumstances when collecting data on self-defined sex only could contribute to the failure of a public body to comply with the PSED”(p11)
The PSED is the Public Sector Equality Duty, which requires public bodies to publish reports on progress they have made relating to equality outcomes. The PSED is based on the Equality Act (2010), which as stated previously does not mention legal sex. Given this it doesn’t seem like public bodies would be in breach of the PSED if they did not record legal sex. If the Sex and Gender Data Working Group think that legal sex data is required in certain circumstances they should be able to explicitly state what these circumstances might be.
In terms of biological sex, the guidance makes clear that due to privacy concerns surrounding biological sex data it shouldn’t be routinely asked about. This is a positive step. Although, more specific guidance on how biological sex data collection should be approached would be beneficial. Simply asking people “what is your biological sex?” won’t always provide useful data at the individual level particularly when identifying what medical screenings may be needed. It would be more direct to ask about the specific sexual characteristic that are of relevance.
The binary assumptions
It was encouraging to see a commitment to working with the government’s Non-binary Working Group. I am hopeful that the issues I discuss in this section will be addressed at a later date given engagement between the two working groups. However, I find it perplexing that the draft guidance produced recommendations that were more inclusive of non-binary people than the final guidance.
The draft guidance featured a gender identity question similar to that in the Scottish Household Survey, which allows respondents to select “in another way” and state their specific gender identity. However, in the new guidance there is more focus on a binary sex question with the same lived sex guidance as the 2022 census. It would be inaccurate to categories non-binary people such as myself as either male or female meaning this format of question inherently misrepresents us.
If/how should gender data be used?
The trans status question recommended in the guidance is a useful tool as it enables an estimate of the number of trans people and allows people to state their specific identities via a text box. More information is needed on how to clean, apply and share data collected by text boxes. This issue would also apply to the gender identity question promoted in the draft guidance.
You shouldn’t ask people for information if you’re not going to use it. At the same time when dealing with small marginalised communities greater care must be taken to ensure their privacy is protected.
When public bodies publish information on who engaged with their services it could be useful to list commonly stated gender identities or to provide an estimate of the number of service users who identified in some way other than as a man or woman.
Closing thoughts on “dignity and respect”
My priorities in terms of data collection by public bodies are that privacy is protected and accurate data is produced which will enable identification of what groups engage with services and their potential needs. This requires questions that clearly state why they are being asked, what the information will be used for and the ability to withhold information. It also requires that these questions make space for reality. Putting people into binary boxes just because it’s easier doesn’t enable better service provision it just produces inaccurate data, continuing to render some service users invisible. Privacy and useful data are my priorities but there is also the matter of dignity and respect. One of the underpinning statistical principles of the guidance was:
“Data collection needs to be carried out in a way that treats people with dignity and respect”(p6)
Asking questions about “legal sex”, which doesn’t exist in law and if answered as intended would mean many trans people misgendering themselves is not treating them with dignity and respect. Nor is neglecting to represent non-binary people. The core issue with these questions is they produce data, which for many trans people can’t be used to meet their needs. That being said if your going to state a key principle of your guidance is dignity and respect legal and/or binary sex questions are not the way to go about it.
Collier, B. & Cowan, S. 2021. Queer Conflicts, Concept Capture and Category Co-Option: The Importance of Context in the State Collection and Recording of Sex / Gender Data.
Cowan, S. 2020. Response to Women and Equalities Committee Consultation on Reform of the Gender Recognition Act. [Online]. Available from: link.
EHRC. 2018. Our statement on sex and gender reassignment: legal protections and language [Online]. Available: link [Accessed].
Equality Act 2010 [Online]. Available from: link.
Gender Recognition Act 2004 [Online]. Available from: link.
Guyan, K. & English, K. 2021. Sex and Gender in Data Working Group – Response to Draft Guidance.[Online]. Available from:link
Halliday, R. 2020. Working group about a person’s sex and gender Data collection and publication – draft guidance. [Online]. Available from: link 2021
Halliday, R. 2021. Data collection and publication guidance: Sex, Gender Identity, Trans Status. [Online]. Available from: link.