The starting point is the purpose of the census, which is to gather data that is as useful and reliable as possible. By “reliable”, I mean that we get the same kind of answer from the same kind of person, so we know what the answers mean and people who plan public services can use them. Above all, the census exists for the specific purpose of data gathering.
The main point that I want to make before I say anything else is that there is clearly no disagreement at all about the value of gathering more data on the population who identify as trans. The gathering of such data is immensely valuable, and the census is a good place to do that. The insertion of voluntary questions on that issue does not seem to be a matter of contention here; really, the debate is all about what happens with the question on sex.
In that regard, let me make three points. First, it is important that the census continues to capture data on sex, as a protected characteristic, in terms that are consistent with the Equality Act 2010. The 2010 act clearly has a two-category definition of sex: male and female—there are no more categories. To introduce a third sex category, as the bill proposes that the census be amended to do, would take the approach out of consistency and compliance with the Equality Act 2010, given how it is framed. That would definitely create issues for quality monitoring and data use.
My second point is that there is no evidence that service users have demanded a move away from binary sex categories in the census. The National Records of Scotland is clear that the proposal is not driven by census users wanting a third category.
A third, and different, point, which is also important, is that you need to avoid using the census legislation to set a precedent on the statute book that conflates sex with gender identity. Those are distinct things, conceptually, and we do not feel that the census legislation is the right place to introduce new ideas about how to conceptualise sex in law. That debate could be had, but not in this context.
Our view is that the definition of sex in the Census Act 1920 should remain as it is now, so that it is in line with the definition in the Equality Act 2010 and in other legislative contexts where sex is used, such as marriage, birth and death certificates. We use a two-category version of sex right across the legal context. That suggests that we should not amend paragraph 1 of the schedule to the Census Act 1920, which talks about sex, by introducing the proposed additional words, which would mean that we would need to introduce gender identity in the bill in the same way as it introduces sexual orientation—as a voluntary topic.