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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.
The third and final strand of my research has begun and I need your help. My research aims to find out how differences of sex, gender and sexuality should be represented in UK population surveys. For the final strand of my research, I am surveying people ages 16 and over who live in the UK and are part of the LGBTI+ community. The survey asks for your perspectives on what information about your sex, gender or sexuality should be recorded. It features questions designed by people whose relationship to sex, gender or sexuality is usually overlooked by UK censuses. You will have the opportunity to share your perspectives on these questions and help identify if they would be good alternatives to current survey practices.
The above diagram depicts my research process. The survey is part of Strand 3. In Strand 2 I engaged with 4 different overlooked groups that were identified by reviewing current survey practices they were:
People with variations of sex characteristics (often referred to as intersex people or people with differences of sex development)
People whose gender identities (or lack thereof) are not completely represented by the categories of man or woman (often referred to as non-binary people)
People who do not identify with their sex assigned at birth (often referred to as trans people)
Anyone who does not identify as only heterosexual/straight, gay, lesbian or bisexual (for example: asexual, aromantic, queer, pansexual and polyamorous people)
In Strand 3’s survey I want to continue to engage with these groups while also talking to the wider LGBTI+ community. This is due to the fact that although lesbian, gay and bisexual people are occasionally represented in population surveys if there is no sexuality question, they are not the assumed norm unlike straight people. The purpose of the survey is to see if the perspectives shared by the Strand 2 focus group participants are held by a larger group. It also gives the opportunity to test the “ideal” questions designed by the focus group participants.
The survey will be used to construct an idea of best survey practise for representing differences of sex, gender and sexuality in the UK. I will then compare that to what is currently done to produce recommendations on how to improve upon our current approaches to asking about sex, gender and sexuality. The overall objective of this research is to further respectful representation of marginalised groups in an attempt to produce data that will help us understand our communities and meet our needs.
The following is a 5 minute zine I made in October. It touches on some ways I have personally been overlooked or misrepresented by surveys. These issues formed one of the key motivations for my research. I have often been overlooked by surveys or forced into ill-fitting boxes. I hope that my research can identify ways to prevent this happening for myself and everyone else who has ever been overlooked by survey designers. This zine and my research focuses on sex, gender and sexuality. However, poor question design is an issue for a range of characteristics.
ONS has decided to take two steps forward and one step back when it comes to representing LGBTQ+ people in the 2021 census for England and Wales. The 2021 census will be the first to ask about sexual orientation and if respondents identify with their sex registered at birth. However, progress surrounding the sex question has been limited due to the UKs surge in transphobia. In 2011 responding to trans peoples’ uncertainty surrounding the sex question ONS stated that:
“select the answer which you identify yourself as. You can select either ‘male’ or ‘female’, whichever you believe is correct, irrespective of the details recorded on your birth certificate. You do not need to have a Gender Recognition Certificate.”
This means that trans women tick female and trans men tick male (no accurate representation for people outwith the binary). Despite data consistency over time being an important factor when designing reoccurring data collection ONS have decided to change the guidance to the following:
If followed this guidance would change how people who don’t identify with their sex registered at birth respond to the sex question.
How this impacts trans people
It makes responding to the census more confusing given that some people will have passports and birth certificates that do not match.
The purpose of the sex question according to ONS is to “identify discrimination or social exclusion based on sex”. The new guidance if followed would prevent this for trans people. A trans person’s documentation does not determine how they are treated. There is nothing material that distinguishes trans people with and without GRCs or updated passports other than the resources and desire to engage with the bureaucratic and sometimes distressing systems to obtain them.
If trans people respond to the sex question based on how they identify and also answer the sex registered at birth question we would then have an estimate of how many trans men and trans women there are. Understanding the gender demographics of the trans community is useful for LGBTQ+ organisations trying to meet our needs. However, if the new guidance is followed, we won’t have clear gender data on the trans community as the way trans people respond will differ based on their documentation. This will then impact what planning can be done for meeting trans peoples needs.
The final impact for trans people is the disrespect for our ability to know ourselves and the worrying president this change creates. Legal documentation has never been mentioned in regard to census responses before. All census responses are self-identified given the very nature of how census data is collected. No one checks the “accuracy” of census responses because we respect people’s ability to know themselves.
How this impacts data users
NRSfound that people rarely engage with this type of guidance. Even among trans and non-binary people only 25% read sex question guidance. Given this data users will have no strong basis to assume that people responded based on their documentation. Meaning that the guidance is useless.
As stated previously if the guidance was to be followed by all respondents data users still wouldn’t be able to tell which trans people had accurate documentation and therefore responded based on their identity and which did not. This can not/should not be checked at any time due to it being a breach of privacy and the principles of self-completed data collection.
Advice to trans people
Respond to the census but ignore the sex question guidance. Respond based on how you identify, you know yourself best. No one will be checking, and you won’t get in any trouble for doing this. Legally everyone must submit a census form or face a fine. Regardless of that the census this year is particularly important for LGBTQ+ people, so it is important you complete it(see
this resourcefor more information). If like myself your not a man or woman things are more difficult given the binary nature of the question and the fact it’s mandatory. Mandatory means that on the online version of the census you won’t be able to skip it. On an unrelated note you can also request a paper copy, information on how to do so will be featured on the letter you receive prior to the census day (March 21st).
Advice to data users
To fellow data users, if you are concerned about the impact this may have on data quality there are two things to keep in mind. First, the 2011 data was based on lived sex guidance and we used without any issue. Prior to that there was no guidance at all, which means we don’t know how trans people responded. Treat the data from this year’s census with the same pinch of salt you should have been treating previous years. Second, why on earth would you want people to be providing data that has little to no relevance to how they live and that they are unwilling to provide. Have a word with yourself if you think there is anything useful or ethical about that type of data.
It’s my personal view that if the guidance had remained the same and ONS had been clear about that further in advance campaigning could have occurred to ensure that most trans people respond based on how they live. This would have resulted in accurate and useful data rather than the needlessly limited data that we will end up with.
In 2019 the Scottish Government asked the Chief Statistician to convene a Working Group to explore the collection, disaggregation and use of data on sex and gender. In December, the Working Group published
draft guidance for public bodies on the collection of sex and gender data. The guidance seeks to standardise a diversity of data collection approaches in Scotland and is generally strong in terms of iterating that researchers should ask questions that will return the data they require and ensuring practices are inclusive to maximise the number of people who can participate in data collection activities.
The working group is accepting feedback on the guidance until the 12th of February. I would strongly encourage anyone with quantitative data expertise, particularly that relating to sex, gender and sexuality demographics, provide feedback to the working group.
I co-produced the following letter with Dr Kevin Guyan, which outlines our views on the strengths and weaknesses of the Working Group’s draft guidance:
The 21st of March 2021 is census day in England, Wales and Northern Ireland. This census year is of particular importance to the LGBTQ+ community. Here I provide some information for LGBTQ+ people filling in the census. As a non-binary person, I’m disappointed by the use of a binary sex question. However, that makes the optional text box in the “sex registered at birth” question more important. If your trans and/or non-binary please make use of that box so our community is represented accurately.
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