Lord Sandison throws out Fair Play for Women legal challenge over census sex question

A women’s group have failed in their bid to overturn a decision to allow people to self-identify their sex regardless of what is stated on their birth certificate in the upcoming census.

The census, which was delayed from 2021 due to the coronavirus pandemic, states that transgender people can identify as a sex different to what is listed on their birth certificate, without the need for a Gender Recognigtion Certificate.

Fair Play for Women argued that the decision was unlawful and was in breach of existing legal definitions of sex and gender.

However on Thursday, Lord Sandison threw out the case, stating that an answer given in “good faith and on reasonable grounds” should not be seen as false.

The census will ask if respondents are male or female, with a voluntary follow up question offering respondents the chance to state if they identify as transgender or non-binary.

In a statement posted on Twitter, Fair Play for Women said: “We are disappointed with the judgment and will be requesting an urgent appeal.

“The guidance proposed for the sex question will jeopardise the collection of accurate data on sex in the Scottish census and erodes the harmonisation of data collected via censuses across the UK.”

However a trans equality charity has welcomed the decision to uphold the guidance for the census, adding that the process of acquiring a Gender Recognition Certificate is a lengthy process and that trans men and trans women often live their lives as the sex they identify as for years without this documentation.

Scottish Trans were granted permission to intervene in the case, in the public interest and provided the court with a perspective of how trans men and trans women would be impacted if the guidance were to be scrapped.

Vic Valentine, Scottish Trans manager, said: “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.

“To change the sex on their birth certificate, a trans woman or trans man has to go through a stressful, lengthy and difficult process of applying for a Gender Recognition Certificate, that often takes many years. Yet trans men and trans women can update all of their other identity documents, be seen by family and friends as a man or woman, and be living their lives for many years completely as themselves before applying for one.

“We believe trans men and trans women who have not changed the sex on their birth certificate have the right to have their identity respected, recognised, and counted too, and welcome this decision.”

Following Fair Play for Women’s decision to launch an appeal, a Scottish Government spokesperson said: “We cannot comment on live legal proceedings.”