This Bill makes it clear that the census can include questions on sexual orientation and gender identity.
It proposes that questions about these matters would be voluntary, like questions about religion are. Normally, it’s a criminal offence not to answer census questions.
You can find out more in the Explanatory Notes document that explains the Bill.
Why the Bill was created
The census is the official count of every person and household in Scotland. It’s held every 10 years and provides the most complete statistical picture of the country.
It provides information to monitor discrimination and help central and local government improve public services.
Scotland's census is taken by the National Records of Scotland (NRS) on behalf of the Registrar General for Scotland.
Between 8 October 2015 and 15 January 2016, the NRS asked for views on the topics people felt should be included in the next census. Gaps were identified on sexual orientation and gender identity.
Including these questions would provide data for planning public services in line with the Equality Act 2010.
Questions on these matters may be added for the 2021 census. How they would be asked is still to be decided.
You can find out more in the Policy Memorandum document that explains the Bill.
Becomes an Act
This Bill passed by a vote of 115 for and 0 against or abstentions. It became an Act on 18 July 2019.
The Scottish Government sends the Bill and related documents to the Parliament.
Related information from the Scottish Government on the Bill
Why the Bill is being proposed (Policy Memorandum)
Explanation of the Bill (Explanatory Notes)
How much the Bill is likely to cost (Financial Memorandum)
Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)
Information on the powers the Bill gives the Scottish Government and others (Delegated Powers Memorandum)
Stage 1 - General principles
Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.
Committees involved in this Bill
Who examined the Bill
Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.
It looks at everything to do with the Bill.
Other committees may look at certain parts of the Bill if it covers subjects they deal with.
Who spoke to the lead committee about the Bill
First meeting transcript
The Convener (Joan McAlpine)
Good morning, and welcome to the 32nd meeting in 2018 of the Culture, Tourism, Europe and External Affairs Committee. I remind members and the public to turn off mobile phones. Any members using electronic devices to access committee papers should please ensure that they are turned to silent.
The first item on the agenda is consideration of the Census (Amendment) (Scotland) Bill at stage 1. This morning, we will take evidence from two panels. I welcome our first panel, who are Rosa Freedman, professor of law, conflict and global development at the University of Reading; and Susan Smith from the organisation For Women Scotland. Thank you for coming to give evidence and for your written submissions.
Before I move to questions, and because the bill has just been introduced, it might be helpful for clarity to make a few remarks about its purpose. The policy memorandum accompanying the bill states that its purpose is to make questions on sexual orientation and gender identity in the 2021 census voluntary. The committee has been told that the wording of the questions, if they are asked, will be proposed at a later date and that the Parliament will be able to deliberate on them then.
The bill also makes a change to the schedule to the Census Act 1920, by inserting the words “including gender identity” after “sex”. Although this is not dealt with in the bill, we understand that consideration is being given to including a third option in the sex question, as well as male and female, which would be in addition to the proposed gender identity question. Several written submissions have pointed out that that conflates the term “sex” with the term “gender identity”, which is problematic. This morning, we have received a letter from the bill team at the National Records of Scotland, which points out that there may be an issue with the drafting of the bill and that the team is happy to consider anything that the committee recommends in the area. I hope that that is all clear.
I have a question for Professor Freedman from a legal point of view on that particular aspect of the bill. In her submission, she states:
“Conflating sex and gender identity will undermine sex as a separate category protected by law.”
I assume that you are concerned about that because it sets a precedent.
Professor Rosa Freedman (University of Reading)
Thank you for inviting me.
That is indeed my concern. If we separate sex and gender reassignment—or gender identity, gender presentation or whatever the wording might become—we are keeping two separate protected characteristics, as we have under law. Similarly, we would not conflate race and religion or other protected characteristics. Bringing the idea of a third category—a non-binary gender—into sex, or bringing together gender identity and sex in one question is bringing together two characteristics protected under the Equality Act 2010 and thus, in essence, undermining them both.
For people who might be unfamiliar with the subject and who might not be clear about it, can you confirm my understanding that gender identity is not just about people who have had surgery to change their sexual appearance, but is much broader than that?
Currently, internationally, at European level and within the United Kingdom, we do not have definitions of gender identity. In Massachusetts, the law says that gender identity is the gender that someone identifies as. In international law, the term is used in a way similar to the way that Stonewall uses it—it is an umbrella term for various individuals, whether that is people who have had gender reassignment, people who are transsexual, who are transvestites, who are cross-dressers and all sorts of other people. There is a long list, but it is not a definition. Protecting gender identity, or putting gender identity into the census without a definition, would lack clarity. Moving forward, a definition would be required in law.
Gender reassignment is currently protected, and what it means is set out in the Gender Recognition Act 2004. It is about a meaningful transition, and there are certain criteria for that. Someone has to live for two years in their preferred sex or the sex that they want to be identified with, and they need to have medical certificates and so on.
From a legal point of view, there is no problem with protecting gender identity, so long as it is defined, but putting the term in a bill now, without a definition, will cause more trouble down the road, not only for the bill but more generally because of the precedent that it will set.
I ask both the witnesses what the practical effects of such a change would be.
Susan Smith (For Women Scotland)
We are concerned about the users. Obviously, biological sex is immutable. Humans are sexually dimorphic. There are various implications, especially for health providers in considering, for example, how many cervical screening programmes they need to roll out. There are also issues about the public sector equality duty as defined under the Equality Act 2010.
Pay gaps and who does the caring in society are captured by the census but, if the definition of sex is no longer robust and we do not really know what the people who have answered the question understand by that definition, all that data becomes problematic.
From the point of view of the users, it is really important to have a clear definition of biological sex for the provision of services and the protections that people will need under the equality duty. If the additional question about gender identity is to be asked, what that information is needed for and how it can best be utilised need to be worked out with the users. If they say that there is a need for that information, it is important that there is a robust definition and that they have the end goal in sight on what that information will provide. If the terms become conflated and there is confusion about them, both will become meaningless.
I see. The written submission from the Scottish trans alliance says that the number of trans people is so small and scattered that there will be no effect on the data.
That is why we need to go back to the definitions. The number of people with a gender recognition certificate is very small, and maybe the number of people who would traditionally be known as transsexuals is very small. However, we do not know the numbers of people—particularly young people—who identify as non-binary and who identify within the broader umbrella of gender identity as Stonewall defines it. It might be important to have a gender identity question that is separate from the issue of sex with a very clear definition of what the term “gender identity” means in order to gather data on the numbers of people, because none of us knows that. One of the big issues across all the consultations on self-identification throughout Europe has been that we do not know the numbers.
It is important to keep the issue of sex separate but, in respect of gender identity, we need to know the data on domestic violence and trans-identifying individuals, and on suicides, pay gaps, and people who have been forced into sex work, because many things are bandied around, and that is a very vulnerable community. Having a separate question would enable us to gather that data and to provide the services that are needed for that community. Keeping the broad term “gender identity” without a definition does not enable any of us to help to protect that group.
Claire Baker (Mid Scotland and Fife) (Lab)
As the convener outlined, the bill is about making a set of questions voluntary. At the moment, questions about religion are already in that category and the bill suggests adding to it questions about sexual orientation and gender identity. Are you happy with the answering of those questions being voluntary and with the definitions that are used? Some submissions question the use of the term “gender identity” as the description for the set of voluntary questions. Are you satisfied with that and with the proposed voluntary status of the questions?
Rosa Freedman has covered a lot of the issues relating to gender identity and how the definition must be nailed down. That is probably important, but it is not really within our remit, which is obviously to look at the impact on women and girls. Clearly, however, there are reasons why people are not comfortable with revealing their sexual orientation or their gender identity, so it is fair that answering those questions should be voluntary.
As I said, no one has defined gender identity properly—neither the United Nations nor the European Court of Human Rights has done so. If it is to be included in a census, it needs to be defined so that the people who answer the question can answer it correctly and to the best of their ability.
I am not particularly happy with the definitions that have been set out. If Scotland wants to take the lead on defining gender identity, that would be great, but there needs to be absolute clarity on what the term means so that, when people answer the question, they give the right data.09:15
The bill does not address the sex question but, if you have had the chance to look at the bill to that degree, you might want to comment on the drafting. The bill team and the Government argue that the first question, which is a binary question, is already a self-identifying question, and that the guidance that accompanied the 2011 census shows that that is the way in which the question is approached. What is your response to that? Was there any consultation on the guidance in 2011? Were you aware of the guidance that existed in 2011?
That is an important point. As far as we are aware, women’s groups were not consulted on the bill. It slipped in under the radar and perhaps we now have the opportunity to think about it again. Although I am sure that some people will answer any question in a way that they interpret it, the idea that someone can self-define their sex must be supported by evidence. If we are going to change definitions of sex, a body of evidence will need to be provided, including a report from the chief medical officer and one from the chief scientific officer. Currently, there is no scientific basis for arguing that there is any fluidity in sex. There is no third gamete, and there are no human beings who have moved from one sex to another—there is no real-life Tiresias. That is not possible with the human species. As I said, there are also the healthcare implications that someone’s biology entails.
The law is very clear from the April Ashley case—the Corbett v Corbett case—in 1970. That involved a famous, high-society transsexual, who had married a man, wanting to have the marriage annulled, because she did not want to get divorced. The court looked at whether to annul the marriage on the basis that she was a male, and two males could not get married at that time under the law, or whether to annul the marriage on the basis that they had not consummated the marriage.
The case was quite short and went into quite a lot of detail. The judge was a medical man, and he looked at how we define sex. He said that sex is about biology, and that there are three types: chromosomes, gonads—I am sorry; it is early in the morning for this—and genitalia. Sometimes, a person might have only two of the three. He went into a lot of detail about intersex. Some children are born with internal testes, an external vagina and male chromosomes, which is slightly different to what the average or regular child will be born with. He talked about how one might need to open up the vagina to allow the testes to descend, but that does not stop a person being male, because they would have two of the three.
The judge also talked about psychological sex, which relates to what was referred to at the time as transsexuals—we would now refer to gender identity or trans-identifying individuals. He very clearly distinguished in law between biological sex and what we would now call gender identity. That remains good law.
At international level, the law remains that sex relates to biology. Sex is about chromosomes, gonads and genitalia. Therefore, under international human rights obligations—whether it is the Convention on the Elimination of All Forms of Discrimination against Women or the European convention on human rights—the definition of sex relates to biology. To suddenly turn the definition around and have male, female and another category, or to define sex as gender, would go against the law. If we want to change the law, the way to do it is not through conflating two things in a bill; we would need to go through the processes of changing the law.
Kenneth Gibson (Cunninghame North) (SNP)
The Equality Network and the Scottish trans alliance, which we will hear from in the next session, have given us a submission that says:
“A non-binary person is a person ‘identifying as either having a gender which is in-between or beyond the two categories ‘man’ and ‘woman’, as fluctuating between ‘man’ and ‘woman’ or as having no gender, either permanently or some of the time’”.
How do you feel about the accuracy of that? Is that the reality?
I think that gender is a social construct and sex is biology. If gender is a social construct, it is about the norms that we expect from one another, which we have been socialised and raised with—the norms that society expects from us and that we learn very early on, because no matter what we are learning at home, we learn from the world around us.
If gender is a social construct, of course people’s gender can be fluid or not exist or it can change. Your sex is a fact; it is a biological reality. In the Netherlands, they have three genders available: masculine, feminine and X, or non-binary. I think that many people would choose non-binary. You can have your gender defined as X, or non-binary, but that does not change your sex, because your sex is a biological fact.
From my personal and a legal point of view, there is no issue with how you want to define your gender. Gender is not currently a protected characteristic in law so you can define your gender in any way you want, but your sex remains your protected characteristic in law under the Equality Act 2010 and there remain exemptions for things such as sex-segregated services. It is about moving sex and gender away from one another in order to define them.
If we do not get this right, do you have concerns that it will undermine safe spaces for women, for example, and allow people who are declared as women but who are biologically male, with no gender reassignment whatsoever—either through surgery or hormones—to be able to go to and participate in all-women events? Is how that might impact on women and girls a concern for you?
It is a general concern. It is not really within the scope of this bill. It comes back to the gender identity—
This is the nub of a lot of what we are talking about.
There is a conflation, as we said, of sex and gender. For a lot of people, it is not an issue; for a lot of women, it is not an issue. However, there are people who need and deserve protections. It is important that those protections remain robust. Sex is a protected characteristic in the Equality Act 2010; recently, we have seen quite a lot of conflation—especially across councils—and this idea that it is about gender rather than sex.
As part of a long-term project, if we are going to start talking about gender and sex, we need to be very clear about where one applies and where the other applies. Otherwise, it will create problems and, unfortunately, it will create problems for girls and young women especially.
Although I understand young women’s urges to identify out of sex-based oppression by saying that they are non-binary, unfortunately, I do not think that the world works like that. I do not think that they will benefit from being non-binary; I think that men will benefit from being non-binary. It is really important that, even though women might identify as non-binary, they are still protected on the basis that they will face discrimination and they may well face abuse because they are women.
Do you feel that there should be voluntary questions on gender and sexual orientation but that the compulsory question—I know that this question does not come under the bill—should be, for example, “What was your sex at birth?” and the answer should be binary—male or female?
Yes, but I would not even ask, “What was your sex at birth?” because you cannot change your sex. The question is, “What is your sex?” Particularly when it comes to a bill, the language and the discourse are very important because they will set a precedent. “What is your sex?” is the same question as, “What was your sex at birth?” because you cannot change your sex. Every part of your DNA has chromosomes that are the same chromosomes as when you were born.
Having the mandatory question of, “What is your sex?” with the answer being either male or female would allow for data to be gathered based on biology, and having voluntary questions on gender identity and sexual orientation would allow for data to be gathered on vulnerable groups. We could work out how many ovarian cancer cases there have been and whether they have gone up or down based on the biology data, for example, as well as whether increased provision is needed for refuges and domestic violence services. We could work out whether additional services need to be provided for people based on the data on gender identity, sexual orientation or ethnicity, because we know that sometimes you need to have very specialist services within that group—
Sorry, but the reason I was asking about adding “at birth” to the question is to really spell it out. Some people might conflate gender with sex and if we do not make it crystal clear by saying “at birth”, someone might say that they were born male but they consider themselves to be female, for example. They will then mark the wrong box and we will not get the data that you are requesting. It is a question of clarification.
That is true. There will always be some people who say, “Even at birth, I was born in the wrong body. I have a different brain”. The terminology is “assigned” as opposed to the medical terminology, which is “determined”. There might need to be a clarification sentence that says, “This is what sex is and this is what gender is”.
We are talking about a small group of people, and there will always be people—I am sorry; I know that I am on the record—who do not tell full truths on a census, and for whom the question might be slightly political. Having a clarification sentence will help the majority of people to realise which questions relate to what. Most people will also realise why it is so important to have the two questions.
Annabelle Ewing (Cowdenbeath) (SNP)
I want to pick up on the guidance. As has been said already, under the 2011 census, there is guidance on the mandatory sex question, which, as we have established, is not a part of the bill but is a topic of discussion. The guidance is about self-identification. Mr Gibson has suggested that the guidance could be amended to say “sex at birth”. I hear what Professor Freedman says about that, but to move away from what is in someone’s mind to the biology, what about what is on the birth certificate? Would that be an approach?
That would, of course, take into account that there will be a voluntary question on gender identity, however that is phrased. The two things will go in tandem but at different parts.
The problem with birth certificates is that everything is still up in the air around self-identification under the Gender Recognition Act 2014. If people can self-identify for the purpose of that act, they can change their birth certificate, which will not reflect the situation accurately. We know that fewer than 5,000 people across the United Kingdom have applied for a gender recognition certificate, and that is approximately the number that was expected in 2004, but it could go up significantly if changes are made. Using the birth certificate could be a good idea once we know the outcome of that.
It goes back to numbers and needing to have proper impact assessments. We just do not know what the numbers will be. We have no real research or evidence to suggest how that will pan out.
When the GRA was introduced, one of the arguments about it was that it was about a very small number of people, and the same argument has been made about the bill—when it is such a tiny number of people, it is not going to affect the integrity of the data and it is not going to have a massive impact on society. The argument was made that, if this became more widespread, it would be a problem. We now do not know how widespread it is going to be, which means that we have to be clear on definitions and what we are looking at.
I hear what you are saying, and we are trying to find a way through some very complex stuff. It might well be, then, that Mr Gibson’s suggestion is the best way forward because someone’s sex at birth is their sex at birth. The guidance is designed to be helpful to people who might look at a question and think, “I don’t know what my answer should be to that.” They can look at the guidance, which should clarify the position. It is a normal approach in legislation to have a definitions section. In light of what you are saying, Professor Freedman, that might be a way forward.
It would certainly comply with international legal obligations and human rights obligations in terms of sex being a protected characteristic. It would frame the question in a way that people understand.
That is the other thing. People sometimes struggle with some of these ideas. Some of the definitions around gender identity are so broad that we probably all fall under a trans description of some kind.
That is interesting; thank you.09:30
Ross Greer (West Scotland) (Green)
Susan Smith, I would like to pick up on a point that you made about non-binary people who you would identify as being women—you were talking about young women specifically. Does that point not essentially boil down to removing their agency by saying that you know who they are better than they do?
I do not want to get into the question of individual rights and individual choices, because this issue has nothing to do with that; it has to do with science and, apart from anything else, what the medical needs of those people will be. If you are a woman, you will at some point need to have cervical screening done. Recently, we saw that Cancer Research UK had a campaign that addressed itself to cervix havers or whatever it was. There are people who struggle with that language and with other medical terminology.
I have no issue with people having personal agency—of course not; it is a basic tenet of our civilisation. However, there will be medical issues and, at some point, those people might need recourse to services. I think I am correct in saying that, in Scotland, women are the highest users of public services. There are reasons for that, and those reasons do not go away based on how someone perceives themselves. I think that you are conflating two entirely different issues.
I do not quite think that that is the case.
Rosa Freedman mentioned intersex people, and I have a specific question about that community that I would like to explore with regard to the question about sex.
Obviously, some intersex people would be comfortable identifying in the census as male or female, while others do not think that that is an accurate reflection of them. Given that the census is about collecting data for use in, for example, the planning of healthcare provision and that we are talking about a community of people who often have quite particular healthcare needs, does asking a sex question that has only male and female options not limit the usefulness of the data that is collected?
An intersex person will have either prostate cancer checks or cervical cancer screenings. That is because, in terms of healthcare, an intersex person will be either male or female—they will fall into one of those categories. Every one of us has complex needs, but an intersex person might have certain complex needs. For example, some intersex females produce testosterone but their bodies cannot regulate testosterone at all. That is completely different from all of us in this room, but that does not stop the person being female and needing a cervical cancer screening; it means that they might need some additional healthcare based on that slight difference in their chromosomes and in the way in which their body’s balance works. It is a little bit like the way in which my partner with asthma needs additional testing of lung capacity.
The law clearly states that there are male and female categories, and the medical evidence clearly shows that there are male and female categories. Intersex is a slight variation on what might be the average male or the average female—whatever that means—but it is not a third sex. In fact, many of the intersex awareness groups and campaigners have been extremely clear about the fact that they are not a third sex and that they are being co-opted and used in these debates in order to make political points or to try to promote changes to terminology and understanding that are not true and are not based on medical evidence.
I am not an expert on intersex, I am not intersex and I will not speak for the intersex community. However, I strongly encourage you to read what intersex people are saying, because the voices are not being heard and they are being co-opted and used in a way that they are extremely angry about.
We have asked the intersex community for further evidence. In fact, we are receiving more written evidence today, and we hope to hear more from that community.
That is good, because obviously the endocrinology—
Sorry, Susan, but I want to stick with Rosa Freedman’s point for a second.
Professor Freedman, you mentioned particular needs. Do you have an alternative suggestion for how we can collect that data to ensure that the appropriate healthcare provision is in place?
There are two countries where intersex issues have been foregrounded and where people have been protected in that their additional needs are considered. One is Germany and the other is Malta. Neither of those countries has said that intersex is another sex category, but there has been awareness raising in relation to intersex needs and also—this is going completely off topic—the rights of children. For a child who is born as intersex, there are issues about the agency of the child and their ability to consent as well as the choice of medical practitioners and of parents. Those are complex human rights issues. The standard practice has always been that the doctors or parents between them—or one or the other—have chosen, but what about the child’s right to choose? Can we intervene in that way?
There are all sorts of questions around intersex people that are not being addressed properly and that need to be unpacked across the UK and Europe. However, that issue is not to do with gender identity. A significant proportion of the population are intersex—I think that it is about 1.7 or 1.8 per cent.
Yes. It is about one in 60.
It depends on how you define it, obviously.
The statistic that I hear bandied around is that, in the UK, more people are born with intersex conditions than with red hair. [Laughter.] I am not saying that because of your hair, Mr Greer. There is absolutely a need to think about the human rights of intersex individuals, but we should not think of the issue in terms of gender identity, because it is not about that; it is about medical, chromosomal and biological issues.
Yes. That is why I asked about the sex question rather than the separate issues of gender identity.
You could have a question asking, “What is your sex—male or female?” and then you could ask, “Do you have an intersex condition?” That would be another voluntary question like asking, “What is your gender identity?” or, “What is your sexual orientation?” You could do that if you are worried about data on intersex people, but the issue should not be lumped into the sex question; it ought to be one of the voluntary questions. You should ask, “What is your sex?”—that is about the protected characteristic—and then ask about other intersectional needs relating to things such as sexual orientation, gender identity or chromosomes. Someone might then question why you are not asking about all sorts of other medical needs that people are born with. I do not know how far you want to go with the census in drilling down into the data.
It boils down to the fact that most intersex conditions are unambiguously male or female. An intersex condition will affect only a male or a female. It is important not to “other” people and to suggest that they are somehow not proper men or women. It borders on difficult and potentially tricky territory if we try to tell people that they are not quite fully formed as human beings. Being intersex is a medical condition of sexual development; it is not an identity question. As Rosa Freedman said, there could be another question if there is a need to collect the data, but that would need to be done carefully so that people do not feel that they are being pushed into a third category that they really should not be in.
On data, we know that trans-identifying individuals, sexual orientation minorities and people of ethnic minorities all face more discrimination, even though the law protects them, and that they are more vulnerable than the average straight white man. However, I do not know whether we know that about intersex people. The issue is about medical data and it might be about the impact on health and wellbeing, but if the purpose of having an additional question is the normal one relating to the Equality Act 2010 and how we protect vulnerable groups from marginalisation and discrimination, there is a question for you, as members of the Parliament, about whether you need the data on intersex people. Certainly, from the point of view of the law, having a third option of intersex goes against everything that the law says on what sex is.
Alexander Stewart (Mid Scotland and Fife) (Con)
At present, the data on gender identity and sexual orientation is used by local authorities and other public bodies to fulfil their equalities duties. That data will continue to be collected but, if there is a change, the implications for those organisations could be massive, depending on how that is progressed. How would that be managed?
That is really why we come back to the issue of the integrity of the questions. It comes back to what the census is for. The census is a vast undertaking and represents a vast expense for Government, so it has to have a purpose, and that purpose is to provide politicians with the evidence that they need to provide the services that the country needs. If the census becomes meaningless, it is just an expensive exercise in self-validation for the person who is filling it in.
The issue comes down to the data that the users need. We understand that, in a society that is becoming more and more diverse, there will be groups that have additional and different needs, and that all of those needs will need to be considered by providers. However, the issue comes down to the need to ensure that the services are properly targeted. If people can say that they are male or female and there is no guidance on that and it does not matter, you will not be able to capture the biological information and you will also not be able to capture any information that you need to protect trans communities, because you will not know whether, when someone answered the question about being male or female, they were talking about their biological sex or their self-identified gender. It is an incredibly important point.
I would like some clarity about some of the answers that we heard earlier, particularly to the questions from Kenneth Gibson and Annabelle Ewing. The issue of birth certificates came up in relation to the sex question and the definition that would apply if there was also a voluntary question about gender identity. If the question asked what someone’s birth sex was and there were two options, would that be acceptable provided that the explanatory notes said that that was a biological definition and people got the opportunity elsewhere in the census to answer questions about their gender identity?
I think that it is not only appropriate but absolutely necessary that the guidance notes clearly explain that sex is a matter of biology, with a link to the definition of sex in the law, but then say that there are other opportunities to discuss gender identity, which is about personal agency and social constructs, however you frame that in the language that you use.
It is essential that the guidance notes not only make clear that there are two questions and what they mean but ensure that people understand why we have two separate questions. People must understand that the questions are meant to ensure that we meet the needs of populations—vulnerable and marginalised groups in particular—and that, if the data is not robust, we will not be able to meet those needs or understand the landscape that is before us.
Such questions can become deeply personal and politicised. However, we need to go back a step and say that, if we do not have data on the number of people whose gender identity does not match their biological sex, we will not be able to understand the needs of that group and the issues around pay gaps, discrimination and so on that involve that group. That would depersonalise the issue and make people understand that the purpose of the census is not self-validation but the ability to plan for populations and demographics in order to provide the services that are needed.
There is an elephant in the room that we are not quite getting to, although I tried to touch on it in my original question: the issue of women’s safety and so on. In her submission, Professor Kathleen Stock said that, if we do not get the definition right,
“it will leave room for e.g. late transitioning male trans women, who are heterosexual and have penises, to self-describe as ‘lesbians’”
and that that
“will leave the data not fit for purpose.”
That is the kind of issue that we have seen in the press and media in recent months. Is that a concern that you have? We have not heard whether it is.
It is not. Obviously, it is a concern, but we want to be clear about the fact that we, as a group, do not believe that that is the main reason why most people have issues around gender identity. Most people’s gender identity is deeply held and genuine, and, in many cases, they have no control over it. However, there are concerns about people who will exploit any openings. In this instance, it makes the data not fit for purpose, as Kathleen Stock said.09:45
The wider concern for society is that, unfortunately, there are individuals who will join the Catholic church, become youth leaders or do anything to exploit openings. It is tragic and sad, but it is no reflection on the broader trans community, who are just the same as the rest of us in wanting to get on with their lives and live as they wish. We have to be careful that, in protecting one group of people, we are not making another group vulnerable, which is why it has to be got right. We have to make sure that everybody is protected.
Having data on both sex and gender identity allows for planning so that prisons or refuges can have services that are sex segregated and that uphold the principles of the Equality Act 2010; services that are gender neutral, in which women and trans-identifying people can come together in the same space if they want to; and appropriate services that uphold everyone’s protected characteristics.
Although it takes us slightly away from the topic, there are elephants in the room, which I will address. Do you mind if I veer off topic slightly?
Being able to self-identify one’s gender has been introduced in a number of countries in Europe in recent years. Until about 2012 or 2013, in many countries in Europe, if someone wanted to transition, they were forced to be sterilised. That happened in countries such as Belgium, Croatia, Sweden, Denmark and France, but we did not have forced sterilisation in this country, as it is a grave human rights violation. A lot of the laws on gender self-identification were made to remedy the grave human rights violations that had been going on.
In Denmark, where there are 6 million people and self-identification of gender was introduced in 2014, there are already cases of people who self-identified as women—I am not talking about people whose gender identity genuinely does not match the sex that they were born in—going into what were previously sex-segregated spaces, which are now women’s spaces, and raping people. There are already such cases in Denmark and Norway, which have populations of around 6 million people.
Until Ireland brought in self-identification law, it did not force people to be sterilised, as it just did not recognise that there was such a thing as trans. In Ireland, sex segregation remains in prisons and schools, and it is based on biological sex, not gender identification.
In Malta, where self-identification has come in, trans women who go to prison have separate showering and sleeping facilities, and female prison guards can choose whether they wish to search them.
The issues are really complex, and nobody is getting them completely right or fully understanding them.
In order to know what our prison needs are, we need to know how many trans-identifying women there are in the population, and we cannot know that by conflating sex and gender in the census. To know about the needs of refuges, girl guides or whatever, we need to know the numbers of the populations. We need to meet their needs but also those of women and girls.
In England and Wales, two women every week are killed by a current or former partner. We need to think about the needs of women and girls—as a protected characteristic under sex—as much as about the needs of trans individuals under the gender identity question. Very often, conversations focus on trans-identifying individuals, which is important because they are vulnerable, and forget completely the massive vulnerability of 50 per cent of the population, whose sex is a protected characteristic for a reason.
That takes us back to the prisons question and, as Rosa said, you need the data for prison populations. We know that, unfortunately, men are more likely to commit violent crimes—overwhelmingly so, as 98 per cent of violent crime is committed by men—and we do not see a change in male-pattern violence.
Obviously, that has become an issue with men being placed in women’s prisons. They tend to be more violent offenders, and women’s prisons are not really equipped to deal with that. Again, that issue has to be considered when looking at data sets. Do we have to build different prisons or different prison wings for the purposes of accommodation? Unless you have the right data, you will not know the answer to that question.
There is also an issue about the girl guides, for example, allowing in people who self-declare. How do you feel about that?
I am not an expert on girl guides, but perhaps I can speak from the point of view of the law. Some people have issues with a male teenager who self-identifies as a teenage girl becoming a girl guide, but I put that to one side. Girlguiding has allowed male-bodied people who self-identify as women to become leaders of guides, and its policy is not to inform the parents of the children who are being led by a self-identified trans woman. That leader might take those children away to do whatever it is girl guides do for a week in forests and youth hostels—
Exactly. As I said, I am not an expert on girl guides. However, the organisation is not informing the parents of those children. It is a safeguarding issue. As a parent, I want to be able to consent to my child being away in a mixed-sex space, whether that be on grounds of safety or religion or simply because they are my child and, because they are under 16, I have the right to be informed. However, such issues become really complex, because, if a trans woman has the right to a private and family life under article 8 of the European convention on human rights, would Girlguiding be breaching its duty towards that trans woman if it informed the parents? I do not know the answer to that question, because we have not had a test case.
The answer to the situation is not to have self-identifying trans women as girl guide leaders. If we are going to think about the proportionate and legitimate aim of having sex-segregated spaces for girl guides, we also need to think about the harms that could be caused to the girls not just as a result of physical violence and other safety issues but as a result of children from religious backgrounds being excluded, because they would not be allowed to join. Keeping the girl guides sex segregated is a proportionate and legitimate aim.
Going back to the census, do you think that keeping the question simple, straightforward and binary is essential?
Yes. Any other equality needs can be captured by additional questions.
It is not just central to capturing the data; it is required by law.
Since we have veered off topic, and given that safeguarding issues have been mentioned, can you tell us whether there is any reliable data on the offending rates of self-identifying trans women in these areas? You have said that the offending rate for violent and sexual crime is much higher among people of the male sex—we know that to be a fact—but is the rate among trans women the same or has it changed to be the same as the offending rate among women?
The Guardian recently had to retract something that Professor Stephen Whittle wrote as part of an article featuring six legal opinions that we wrote on the Gender Recognition Act 2004 maybe six weeks or two months ago. Professor Whittle had said that trans women have the same offending rate as females, but a Swedish study has shown that trans women have the same offending rate as men. As far as violent offences are concerned, there is no difference between someone who has transitioned—or who self-identifies as trans—and someone who remains a man, having been born male.
That The Guardian had to retract that comment—and change it online—is down to Fair Play for Women, which brought those statistics into the public realm. An element of those statistics might be people self-identifying as women in order to access female spaces and offend, although I am not saying that every trans individual is going to be a violent offender, just as I would not say that every man is a violent offender. We are talking about only a very small minority—it is not all men, and it is not all trans women.
That said, we cannot consider the individual away from the general rule, which is that, overwhelmingly, women are violently attacked by male-bodied people, and violent offenders are overwhelming male-bodied people even if no male-bodied person in this room—I imagine—would ever dream of doing such a thing. We need to protect women from anyone who is male bodied, because of those violent offences.
I will be brief, as we have veered off the topic. I am not disputing the figures that have been given, but you will recognise that people in the trans community are more often the victims of crime and that a high number of physical assaults are perpetrated against them.
There is a big debate about the Gender Recognition Act 2004 and self-identification, which we are considering today. That is where the debate is focused. Do you agree that that debate detracts from issues relating to violence against transgender people, transphobia and access to medical services—that it detracts from the other issues that affect that community? The focus is very much on self-identification. Is the focus in the right place?
That is why we need two separate questions. We do not have the data, and we all want it, because we all—I hope—want to protect every vulnerable and marginalised person in our society. We know that the trans population is a vulnerable and marginalised group in society, but, if we do not have the data on how many trans-identifying individuals there are in our society, we cannot understand the discrimination or the levels of domestic violence, violence in the streets, forced prostitution and suicide. If we conflate the two issues, we will never be able to meet the needs of that very marginalised group.
Without a shadow of doubt, trans individuals face massive discrimination and violence in society. Women also do. I mentioned that two women a week in England and Wales are killed by a current or former partner, because that is not recognised enough. In the United Kingdom, eight trans individuals have been killed in the past 12 years, which is eight too many. We know that statistic from the transgender day of remembrance. We also know that 12 murders have been carried out by trans-identifying individuals in the same period. Each murder is senseless and not right.
We have only those few tiny figures because we do not have proper census data. We are all grasping around in the dark, trying to work out how to help a very marginalised community, but we do not know the size or the scale of the problems or of the community. That is why the bill could set a very good precedent in allowing us to capture proper, accurate data.
That data will include whether there are differences within the community. There are many different definitions of what constitutes a trans person, and, within them, there are biological males and biological females. Having robust data would break that down so that we would be able to see which of the groups were at most risk and where that was problematic. It is true that men are most likely to be the victims of violence, because men attack each other. That goes back to the broader societal issue that there is a problem with male violence that we need to solve. However, we will not solve that problem by putting women at greater risk. We need to separate out the issues.
Thank you very much. If no other members want to ask a question, I will wrap up.
I have a brief question. The discussion has been very interesting, but I want to go back to the bill and the voluntary question on gender identity. Some of the submissions suggested that that terminology is not preferred and that the terms “trans status”, “trans history” or “trans status/history” are preferred. Would they capture all that we have talked about, or should there be a subset? We have to look at that issue. Getting back to the bill, we are tasked with doing that.
In terms of the protected characteristics and the Equality Act 2010, there ought to be a question on sex and a question on gender reassignment, as they are protected in law. As I have said, gender identity has not been defined. It is not gender reassignment; it is much broader than that. Even Stonewall has not defined it; it has just given us a list of who might fall under that term. The questions on sex and gender reassignment probably need to be mandatory. That is certainty the case for sex, but it also applies to gender reassignment, because it is a protected characteristic. We cannot elevate one protected characteristic to having mandatory status, and leave another one floundering with a voluntary status.
Gender identity is not a protected characteristic. We need to capture data on the issue. That can be done on a voluntary basis, but there needs to be some form of definition or explanation in the guidance notes that a person’s sex relates to biology, that gender reassignment relates to whether someone has gone through the steps that are required and that gender identity is something wholly different.10:00
Indeed. However, some of the submissions have suggested that we should score out the phrase “gender identity” and insert “trans status/history”.
We should not do that, because “trans status/history” relates to gender reassignment—it is someone’s trans status. Under the Equality Act 2010, gender reassignment relates to someone’s trans status, whereas gender identity is something that is much broader.
I recognise that, in plenty of submissions, it is said that gender identity should not be included at all. I have made it clear that it is an important question to include, so long as there is a definition. However, the definition cannot be someone’s trans status, because there are people who are non-binary. They do not have a trans status, so that issue should fall under the broad category of gender identity.
Should we approach the matter by creating a non-exhaustive list?
I am afraid that I do not have the answer to how to define gender identity. I am very happy to write to the committee and send various definitions of gender identity from various jurisdictions, including the international level, the intra-America level and the European level. The committee can then decide which parts it wants to adopt.
The question is really tough. The UN independent expert on protection against violence and discrimination based on sexual orientation and gender identity—which is a very long title—published a report in July 2018 that looked at violence and discrimination against gender identity minorities. I know him quite well and he is very good, but he does not define gender identity, so we have not quite got there. It might be that we have a non-exhaustive list or it might be that we have a broad definition, bearing in mind that, by the time of the census, there will be advances in how gender identity is understood. I do not know how easy it would be to then start amending things.
That is a reasonable point for us to bear in mind for the future.
We are running over time. Does Kenny Gibson have a question?
I have an important question that I should have asked earlier. Professor Freedman said that intersex people are being “co-opted and used”. Who is using them, and why? What is the political agenda?
Quite a lot of intersex individuals and medical experts who work on intersex issues have said that, over the past few years, organisations and individuals who are seeking to advance the fundamental rights of trans individuals have started to say that there is no such thing as two sexes, because intersex people are neither male nor female. That is not true, and it is deeply offensive to intersex people, who are male or female. Intersex people can have children and can father children. They have to be male or female to do that—there is not some third space. There has been quite a big push-back on that, with intersex people saying, “We’re not trans.”
Some intersex people might be trans, but they are not trans by virtue of their being intersex. The co-opting of intersex people, in saying that there is no such thing as two sexes by pointing to people who are somewhere in the middle, is undermining the ability of intersex people to advance their needs—this relates to what I said about the human rights of children—that are based around being intersex.
What would be the purpose of anyone pursuing that agenda?
Some experts and groups want to conflate sex and gender. Under the current law, there can be sex-segregated spaces. Even if someone has gender recognition certificates and is trans, they are not allowed to access certain sex-segregated spaces. Those organisations have therefore said, “If we can get rid of the idea of two sexes, we can essentially get rid of that protected characteristic and call everything around gender.” They cannot get rid of sex as understood in law, so, in order to try to get rid of sex, they have used the words “sex” and “gender” interchangeably in policy. For example, the national health service has been advised to use the word “gender” instead of “sex” in some policies, so suddenly we have mixed-sex wards, because they are gender segregated and people are self-identifying. That is causing all sorts of problems.
Such organisations have also been saying that there is no such thing as there being only two sexes, so they have co-opted the intersex community, whose members fall into male or female, and said, “Look—if we have intersex people, sex must be a spectrum and, if sex is a spectrum, we can all fall anywhere we want and we can all walk into any space that we want to.” That is what I meant by “co-opting”.
Thank you for that clarification.
For clarity, I have a specific question about the census questions. There is a proposed third option for the sex question, in addition to the gender identity question. When the Scottish Government or the National Records of Scotland consulted on the issue, certain stakeholders said that, in addition to the gender identity question, there should be a third option for non-binary people in the sex question. When I looked at Stonewall’s definitions of “trans”, I found that non-binary comes under the term “trans umbrella”. Therefore, I take it that it would be acceptable for non-binary people to identify themselves in the gender identity question, which is separate from the sex question. Do you understand what I am saying?
As we have said, it is clear that sex is dimorphic. Stonewall lists non-binary people under its “trans umbrella”. That is an identity issue, which does not change the fundamentals. There are non-binary women who get pregnant, and there are non-binary men who father children. Such people need the same screening programmes and, if they commit a crime, there needs to be consideration of which prison population they go into. That is not going to change; the non-binary option does not transform their physical being into something else. The non-binary issue definitely falls within the identity umbrella rather than in the sex question.
I thank both witnesses for coming to give evidence.10:07 Meeting suspended.
10:10 On resuming—
I welcome our second panel. We are joined by Vic Valentine, the Scottish trans policy officer for the Scottish trans alliance, and Tim Hopkins, the director of the Equality Network. Thank you for coming to give evidence and for your written submissions.
I do not know whether you were here for the earlier evidence session, but I want to ask something relating to that. In the stakeholder exercise that the National Records of Scotland carried out on the census, people were asked about a gender identity question—although I know that the terminology around that is changing—and about the sex question. As well as the proposal to have a voluntary gender identity question, the Scottish trans alliance wants a third option in the sex question. Will you explain why you argued for that?
Vic Valentine (Scottish Trans Alliance)
The guidance on the previous census said that trans people were to answer the sex question in line with their self-identified sex. Therefore, trans men were able to select “Male” regardless of their biological sex characteristics at birth and what is on their birth certificate, and trans women were able to select “Female”. We were really happy with that approach, but it left some trans people—non-binary people—unable to give an answer to the question. In essence, they were unable to answer it truthfully or in line with how they live and identify. For me as a non-binary person, if I were to receive the census and it had only those two options, I would feel really unsure or uncertain of exactly the right way to respond and about which response would be truthful and would provide NRS with useful information about who I am or how I live. I feel that neither of those options would do that.
Back in 2015, we did a survey that involved speaking to about 900 non-binary people across the UK and asking them how they felt about the fact that forms often provide only the two options of “Male” and “Female”. People felt that it reminded them of a lack of inclusion and a lack of recognition by society. Three quarters of people said that they wanted to be able to tell people and complete forms using terms that describe how they actually live and about 68 per cent said that they want that always to include a third option of “Other”.
We feel that, to maintain the data set of the sex question—on which trans people were clearly told that they should respond in line with how they live and identify—we need to add a third option to ensure that it applies not only to trans men and women but to non-binary people.
You will have heard me say at the end of the previous evidence session that non-binary falls under the Stonewall definition of the trans umbrella, and the argument was made that non-binary is an identification as opposed to a biological sex. The thing that is different from the 2011 census is that we will have another question about identification, so the sex question can capture biological sex, which is important for health data and so on, and people will have the opportunity to express their identity, whether that is non-binary or whatever, under the voluntary trans question.10:15
The voluntary question that is currently proposed is not designed to ask people about their identity again; it is supposed to ask them about whether they are trans or have a trans history. All people living and identifying as women would tick the female box at the sex question, including trans women and all other non-trans women. The proposed additional question would ask, “Do you consider yourself to be trans or to have a trans history?”, in response to which all trans women would tick “Yes”. It would not ask people again how they thought of their gender identity and give them male, female and non-binary options; it would ask them whether they considered themselves to be trans or to have a trans history.
The sex question is about what people’s self-identified sex is and how they live and identify, and the trans question, which is called the gender identity question in the bill but is actually about people’s trans status or trans history, will go on to ask people whether they are a trans person. By using those two questions together, it will still be possible to identify clearly which people who say that they are female are trans women and which people who say that they are female are not trans women, but there would be no repetition of a question about identity, if you see what I mean.
How do you respond to the argument that it is important to capture data on biological sex? What you propose will not capture 100 per cent accurate data on biological sex.
It will capture completely accurate data for biological sex characteristics at birth for probably just over 99 per cent of people because, for almost everybody in Scotland, their biological sex characteristics at birth and their self-identified sex and how they live are totally the same.
Of course, the sex question is massively important for things such as health planning, but sex is only a proxy for making decisions about sex-specific services. Do not get me wrong—it is an extremely useful proxy, but, for example, not all females need cervical screening, because they might have had a hysterectomy. We cannot tell whether someone will automatically need cervical screening just by knowing that they are female.
For trans people, sex is a much less useful proxy. Whether we are asked about our biological sex at birth or how we live and identify, many of us have medical transition treatments and make changes to our bodies, so just asking what our sex characteristics were when we were born does not provide up-to-date information about our health needs. For example, a much larger proportion of trans men will have a hysterectomy as part of gender reassignment treatment, so to insist that they label themselves as female so that they can be counted for cervical screening will not be useful, because many of them will not have the body that might be anticipated if we assume that all people who select “Female” automatically need cervical screening.
Tim Hopkins (Equality Network)
I thank committee members very much for allowing me to come along at the last minute to replace my colleague Hannah Pearson. Unfortunately, her father was taken seriously ill last night, so she was not able to come, but I will do my best to answer the questions.
Vic Valentine has already explained that the data that would be obtained from a question that insisted that people responded according to the sex that they were assumed to be at birth by virtue of their appearance—we can call that biological sex—is not really any different for health planning purposes from the data that was obtained from the question as it was in 2011, which, in effect, was a self-identified sex question. As the committee has heard, in 2011 the 1 per cent of people who are trans were told to answer it according to the sex that they believed themselves to be. In fact, the Office for National Statistics issued guidance for the England and Wales census for 2001 that said the same thing, so this has been going on for two decades. Asking about biological sex does not provide data that is significantly more useful for health planning than doing what we did last time and the time before that.
There is another issue. The committee has heard that biological sex is what is protected by the law, but that is not true. The guidance that the Equality and Human Rights Commission published on the Equality Act 2010 and the sex protected characteristic focuses on legal sex. Legal sex and what the committee has heard called “biological sex” are not the same thing.
One of the previous witnesses referred to a case four decades ago about a trans woman called April Ashley, but the law has changed a lot since then. In the case Goodwin v the UK back in 2002, the European Court of Human Rights ruled that it is a human right to have your gender identity as a trans person recognised and that you have the right to change your legal sex to match your gender identity. That is what the Gender Recognition Act 2004, which was brought in as a result of that case, does; it came into force in 2005. The UK was one of the last countries in Europe to do that. Since then, the legal sex of anybody who applied for and got a gender recognition certificate is different from their biological sex, or the sex that they were assumed to be when they were born. It is their legal sex that is protected under the Equality Act 2010.
Thank you. Do you think that biological sex is of any relevance whatsoever?
Biological sex characteristics are certainly important for healthcare. If you have a cervix, you might need to have cervical screening. However, as Vic Valentine has already said, forcing trans men to call themselves women in the census under a biological sex question would not help you with your health services planning, because many trans men have had hysterectomies, so they do not have a cervix.
As Vic Valentine also said, information that you get about sex in the census is useful for broad planning, but you have to take into account individual circumstances. For all sorts of reasons, individuals might or might not need a certain service.
I am just trying to pin down your organisation’s general view of sex as a protected characteristic. When the Scottish trans alliance made a submission in 2015 to the Women and Equalities Committee at Westminster that was looking at all these issues, it argued that exemption based on sex should no longer figure in things like hiring people for particular jobs.
That is not our position at all. For example, for sex-segregated spaces or jobs that are exempt from the Equality Act 2010’s provisions on sex, the presumption is that a trans person will be treated as the gender in which they live and which they identify as, unless specific exceptions in the 2010 act are invoked. Female sex-only services, for example, are presumed to be inclusive of trans women unless specific exceptions are used.
We do not think that it should be necessary to exclude a trans person exclusively on the basis of their being a trans person. If you take a person-centred approach to service delivery and you think that an individual is genuinely unsuitable for your service, we do not see that there would be an instance where the fact that a person is trans would be the thing that made them unsuitable. We absolutely support the maintenance of women-only spaces and roles that are just for women, when they are important.
What I think you are saying is that for those jobs, such as a support worker delivering intimate services for someone who is disabled, people should have the choice to say that they do not want a person who has a male body performing those services. My understanding was that you argued against that in 2015.
We think that anyone should have the right to refuse any individual when it comes to something like intimate healthcare if they do not feel as though that person would be able to do that job in a way that felt respectful and useful for them. We see no purpose in forcing somebody to be cared for by someone that they do not feel comfortable with.
So why did you argue against sex exemptions in 2015?
I suppose the position was more specifically that we did not think that trans people should not be included in line with their identity in absolutely all circumstances, and that there were clearly cases in which trans people would be appropriate for taking those sorts of positions in line with their identity. It was more about it not being invoked as a blanket provision.
Thank you. We had better move on.
The proposal for the census amendment suggests that we put questions on sexual orientation and gender identity into a voluntary category along with questions on religion. Your submissions show that you support that proposal. Do you want to say a bit about why you think that it is important that they go into the voluntary part of the census?
We are still some way from complete equality for lesbian, gay and bisexual people, and rather further away from complete equality for trans people. For that reason, to force somebody on pain of a £1,000 fine to specify to the Government what their sexual orientation is, for example, would not be appropriate at the current time. That is why we think that the question should be voluntary. We often recommend to people who collect sexual orientation data for employment monitoring purposes or whatever that they should include a “prefer not to answer” option. It is equally good to specify that the question is voluntary at the top of the questions, which is what NRS recommends.
I think that one of the submissions said that if the questions are voluntary and people might not want to answer them—they might not feel comfortable answering them—should we bother asking them at all? Will we receive helpful data?
Yes, definitely. The Scottish Government has been asking a sexual orientation question in its national surveys since 2011. It published data in 2017 based on the 2016 surveys; about 21,000 people were asked questions in 2016 in those surveys and we got some useful data out. We got some information about how many lesbian, gay, bisexual or other sexual orientation people there are and the Government got two statistically significant facts from that sample of 21,000 people. One was that lesbian, gay, bisexual and other sexual orientation people have rather worse health than the general population and the other was to do with their being more likely to live in deprived areas.
However, you cannot get much statistically significant information out of a sample of 21,000 people. The big advantage of asking the questions in the census is that you have a sample of 4 million or so adults, so you get much more useful information.
We know that there will be some underreporting but, for example, you could still compare the number of lesbian, gay and bisexual people living in Glasgow with the number who live in Inverness, and that kind of thing is important for the planning of services. We know that people move around the country. Even though there is a level of underreporting, we will still get really important data from the people who report themselves as, for example, lesbian or gay; we can tell what their health outcomes are like compared with people who report themselves as heterosexual, even though there is some underreporting in the lesbian and gay cohort.
The bill uses the term “gender identity”. The submission from the Equality Network and the Scottish trans alliance suggested that the question should be called a trans status question rather than a gender identity question. We heard from the previous panel their concerns about the lack of definition around gender identity. Obviously, if we take the bill as it is presented to us, there would be a description of gender identity in the bill. Do you want to say a bit more about your feelings on the use of “gender identity”? Should the term be changed?
It is my understanding that, because the bill is mostly about deciding whether to have voluntary questions on sexual orientation and gender identity—or trans status—the questions can be defined in a broad way. Until the regulations about the actual wording of the questions come out, how they are asked will not be determined.
NRS, in its latest round of testing, is testing the question, “Do you consider yourself to be trans or have a trans history?”, but certainly if it would be useful and provide greater clarity to have the bill describe what the wording of the question would be, it could be worth thinking about changing it to include that.
“Gender identity” is broadly used to refer to the strand of equality work that focuses on transgender people, and I believe that that is why there was a decision to use the term. As data needs change, the questions that NRS might want to ask trans people within a census might change and it would not have to revisit Parliament every time in order to request that those questions were voluntary. It is my understanding that the idea was that there will be a question that pertains to transgender equality and it will be called the gender identity question, but the actual question in the 2021 census will be a trans status, trans history question.
We would say that “gender identity” is a very widely used term, including by the United Nations. The UN talks about sexual orientation and gender identity when it is talking about discrimination against lesbian, gay, bisexual and transgender people, so we think that “gender identity” is okay as the headline term for this.
Just as with other subjects in the census, the detailed questions are considered later and there will be statutory instruments on those, so we would be comfortable with the bill staying as it is, although we would prefer the question to be more specific and we would like NRS to continue to do testing to find the best question.
I have one final, brief question. Your submission describes the trans population as being “so small” and states that
“there is a relatively small number of non-binary people”.
There is an argument that, if people were able to have flexibility around the sex question—if we were to go down a non-binary route—the figures are so small that it would not really impact much on the data.
In the wider debate, there is a discussion around a generational shift, the idea being that the next generation that comes along will have a different attitude to these things from that of my generation. I fall into that category now. Do you think that that would be tracked by the census? It is often emphasised that we are talking about only a small number of people, but the general discussion seems to suggest that there is an increasing number and that the younger generation has a different view. Do you have any views on that? Do you still maintain that there is only a small population and that, to an extent, the data would not be affected?10:30
The estimate of 0.6 per cent comes from a Williams institute paper that drew together a large number of state-level surveys that were conducted across the USA and pooled the figures from them to come to an average across the USA. That study was published relatively recently, and I do not think there has been such an enormous shift that we would anticipate seeing a figure much bigger than that overall.
Does that 0.6 per cent figure represent people who had transitioned or people who were—
Those state-based surveys asked a question that allowed someone to self-identify with regard to how they describe their identity and whether they are trans.
Tavish Scott has a question.
Tavish Scott (Shetland Islands) (LD)
We now move from one generation to another.
There is a Roger Daltrey lyric in there somewhere.
I would like to clarify something that Tim Hopkins said to the convener, because I might have misunderstood it. Am I right in understanding that you contradicted the earlier panel about the definition in law? Could you explain that again, please?
The Equality and Human Rights Commission is clear that, when the Equality Act 2010 talks about sex, it is talking primarily about someone’s legal sex, which is not the same as someone’s biological sex when they were born, because, under the Gender Recognition Act 2004, people can change their legal sex.
There is another important point. When we are talking about discrimination against people, which is what the 2010 act is about, the point is that the protections around protected characteristics protect someone not only if they have that protected characteristic but if people think that they have that protected characteristic. That means that, if somebody discriminates against a person because they think they are gay, even though they are not, that is sexual orientation discrimination.
The same principle applies to sex discrimination. That means that, if a trans woman who does not have a gender recognition certificate—so they are still legally a man—is discriminated against at work because they are seen to be a woman, because they live as and present as a woman, that is sex discrimination, regardless of the fact that they are not legally a woman, and certainly regardless of the fact of what their biological sex at birth was. The definition of sex in the 2010 act is much more complex than even legal sex, and it is certainly not biological sex.
Does that matter in the context of the census? What is the import of that to our discussion about the census?
That is a good question, because the data from the census is used for different purposes. One of the purposes that it is used for is as a baseline for data that is collected by other bodies. Generally speaking, when other bodies collect sex data, they collect data about people’s lived sex; they do not ask for personal details about people’s genitals or their biological sex.
Data is also useful for measuring the amount of discrimination, and I would say that the discrimination that someone faces is faced according to how they live their life, how they present and how they are believed to be. A trans woman who lives and presents as a woman will be treated as a woman and will face discrimination as a woman. A trans man who lives and presents as a man will not face misogynistic discrimination, because they are treated as a man. In measuring the impact of discrimination, lived gender—self-identified sex, or the sex that someone lives as—is the important thing.
Earlier this year, the Parliament passed the Gender Representation on Public Boards (Scotland) Act 2018, which, as you know, requires public bodies to push the percentage of women on their boards up to 50 per cent. The act defines women as including trans women who are living as women. It would be rather strange, therefore, in terms of baseline data, if the census asked about something different from that. That is what we are aiming for: we want 50 per cent of each of our public boards to be made up of women. The Parliament has already decided that that should include all women who identify and live as women, including trans women, and we believe that the census should use the same definition.
I have one more point to make in answer to your question. Our colleague James Morton, who is the manager of the Scottish trans alliance, is a man. Some of you have met him: he looks like a man, he acts like a man—he is a man. Anybody who has met him would find it ridiculous if he had to fill in the census form and say that his sex was female. However, that is what he will be forced to do if there is a question on biological sex at birth. That would be a very retrograde step, and it has not happened for the past 20 years. When James completed the census in 2011, he filled in his sex as male, and I do not think that he should be forced to, in effect, lie on the census and say that his sex is female.
That is very helpful. Your main contention is that we should be consistent.
It is really important to have consistency from census to census, and I think the data will be more consistent if you stick with lived sex.
A number of important issues have been raised. Picking up on the last point, I suppose that you are saying that the status quo should prevail. I point out that the bill itself is about not the mandatory question but the voluntary aspect, although, obviously, the discussion has gone wider than that. Given what you have said, is it your position that the mandatory question should remain the same, with the options being male and female, and that the guidance should address the self-identification issue?
Not quite. Do you want to go first, Vic?
It is almost our position, but we want the third option to be added to allow non-binary people to answer in line with their self-identified sex. We are very happy for the sex question to remain compulsory, because it is massively important for all kinds of planning for, and measuring of, inequality, but I want to be able to answer that question in line with who I am, how I live and how I identify. I want to be given the opportunity to answer that question in the way that all other men and women are able to answer it.
One suggestion that was made during the discussion with the first panel was that these self-identification issues could be reflected in the voluntary section of the census. We discussed the reasons for doing that at some length with the first panel, covering issues such as gender identities, the social construct, biological sex at birth and the ability to properly capture data and use it to the best possible advantage, including data captured from people answering different questions about self-identification. Would having a mandatory binary sex question and a voluntary gender identity question—however that is defined, which is a question that I will get to in a minute—not capture the data in the best possible way, which is, in fact, the purpose of the census?
The approach that we support is to have a mandatory sex question with three options that trans people can answer in line with their self-identified sex—in other words, it would not be a sex-at-birth question—and a gender identity question that would actually be about trans status and history, asking, “Do you consider yourself to be trans or to have a trans history?” That would capture the proportion of people answering the sex question as female who were trans women but were not female at birth and the proportion of people selecting the male option who were trans men. It would also allow non-binary people to tell you that they are neither men nor women, but non-binary. You would then be able to figure out what proportion they make up.
If you were to introduce a mandatory sex-at-birth question with just male and female options and a second question asking, “What is your self-identified gender or sex?” with male, female and non-binary options, you might have a similar output, allowing you to identify which people there was a change between. However, you would also, with that second approach, be forcing people to reveal quite private and personal information about their biology that, as we have already discussed, would not necessarily be relevant to health planning and so on. The principle of trans equality and the movement towards such equality in politics have been about ensuring that how people live and identify is respected and is more important than reducing them to their biological characteristics at birth.
I do not think that anybody is trying to reduce anyone to anything; we are just trying to work our way through this. We have heard very strong evidence this morning that sex at birth is a biological condition and fact. How people choose to live their lives is absolutely a matter for them; they should be free to choose. However, from the evidence that we just heard, it is immutable that sex is a biological fact. I hope that we will all seek to get to a position that respects people’s rights and identities, including implications that a different approach might have for other groups of people, including women and girls, as was mentioned at the earlier session. In that regard, having the mandatory question remain binary and having a voluntary gender question to capture other self-identifications in order to get the correct data has some rationale to it.
From what Vic Valentine says, it seems that the definition of gender identity has been preordained by the NRS to be to do with trans identification, though it is the Parliament that is looking at the bill so, ultimately, we will have a view on the terminology that is used. That definition might exclude other people. How do you deal with that in the gender identity voluntary bit? If your view is that that is interchangeable with trans status, what about other people who are not in that position and who self-identify in some other way? Should gender identity not involve a wider definitional approach? That is an open question; I am seeking your views.
I am not sure that I understand. Are you asking whether there should be more than just three options for people to choose from?
I am talking about the voluntary part of the census, which, as proposed, would include a question on—I am checking the wording that is used—gender identity. You have made statements to the effect that you feel that what is intended, further to your work with the NRS, is a question about trans identification. Assuming, for the sake of argument, that we have a mandatory binary question on sex, is there not an opportunity in the voluntary question on gender identity to capture other people—non-binary people—as opposed to just trans people?
Which other people would you like to capture?
I am asking you that question. Are there other categories of people, such as non-binary people, who might want to be categorised in that part of the census?
The key point is that this is about protected characteristics. In the Equality Act 2010, the protected characteristic is called gender reassignment. In some other countries, it is called gender identity. When the 2010 act went through at Westminster, the UK Government said—
I am sorry to interrupt, but I am conscious of the time. I am not talking about the mandatory part; I am talking just about the voluntary part.
Sorry—that is what I meant. The purpose of the voluntary question is to capture people who are affected by the protected characteristic of gender reassignment, so that all the protected characteristics are covered.
We have done quite a lot of work with trans people, who are the people who have the protected characteristic of gender reassignment, including non-binary people, asking what a suitable question would be, what they would answer and so on. A question including words to the effect of, “Do you identify as trans or have you identified as trans in the past?” would be the best way in which to capture those people who have the protected characteristic of gender reassignment, as it is easier to understand than the question, “Do you have the protected characteristic of gender reassignment?”, which is quite legalistic.
We are not totally wedded to the wording that the NRS has proposed. It is all about capturing how many trans people there are—the people who are affected by the protected characteristic of gender reassignment—just as we capture numbers for the other protected characteristics.
Returning to the sex question for a moment, the crucial question is whether it should ask about biological sex, legal sex or the sex that someone lives as. We are absolutely clear that asking about the sex that someone lives as would be consistent with the previous censuses and would give us the most useful information, for the reasons we have already discussed. Further, not to do so would be an invasion of privacy. The European Court of Human Rights has been clear that the reason that trans people have the ability to change their legal gender is to protect their privacy, and asking people about their biological sex characteristics when they were born is a breach of their privacy.
At the very least, the question should ask about legal sex and not biological sex, so that it protects people’s privacy in the way that the European court has been very clear that it should be protected. In our view, it would be consistent with other legislation and with the previous two censuses to ask people about how they live their life and their self-identified lived gender—the gender in which they interact with other people.10:45
I have a quick supplementary on that. How do you live as a particular sex?
Vic Valentine is probably the best person to answer that.
I want it to be clear that we do not have a stereotype of what it means to live as a woman or as a man. We do not think that, if someone does the things in category A, they must therefore identify as that and vice versa. We know that men and women can live in a huge variety of ways. However, for trans people—I am a trans person—it is about a deep-held sense of discomfort in knowing that other people who you interact with have a different sense of who you are from who you feel yourself to be. You want to take steps and make efforts to make it clear to other people that the assumptions that they might make about you do not line up with your identity. You want people to see that it is meaningful to you that you feel differently about your gender and how you live your life.
I am trying to drill down into how one lives as a particular sex, as Tim Hopkins said, without resorting to gender stereotypes.
Most people, when they talk to other people, in some sense present themselves either as a man or as a woman. When I speak to another person, I expect that they will assume that I am a man, and I do not contradict that. I use “he” pronouns about myself and I am comfortable for other people to call me “he” and “him”. If I was a trans woman, I would obviously want other people to call me “she” and “her”, like any other woman does. I am talking about those kinds of interactions. We live in a gendered world and, when we interact with other people, one of the first things that we think about is their gender.
So would it be based on things such as clothes, for example.
It does not have to be because, of course, people wear all sorts of clothes and, thank goodness, gone are the days when it was thought strange for a woman to wear a pair of trousers. The fact that somebody wears a pair of trousers does not stop them being a woman and it does not stop a trans woman being a woman.
So what does it mean to live in a particular sex then, if it is not about that?
It is about your self-identity and the way you express that to other people. I am a man. I have always known that I was male, and I believed that I was a boy when I was growing up. When I interact with other people, I am happy to discuss the fact that I am a man, if the subject comes up. In fact, I assume that most people will assume that I am a man when they talk to me. As I say, people will use “he” pronouns for me and I do not find that a problem.
It strikes me that we could go down the road of male and female brains, which is anathema for many feminists, who think that, internally, we are all human beings and not male or female.
I totally agree. We do not think that gender stereotypes define a person’s gender identity. There was nothing about my interests or my likes or dislikes and my personality that meant that I could not be a woman or grow up and live as a woman, as would have been expected based on what my body looked like when I was born but, actually, to me, the idea of that felt wholly impossible and suffocating, and I just knew that that was not who I was. It is difficult to convey to other people that sense of certainty about that discomfort. I realise that, for the vast majority of people, it is just an automatic thing. However, it is absolutely the case that trans people just know that the cues that other people may pick up on about us do not match up with our sense of who we are, and that is why we do certain things, make changes and ask people to try to work with us to see us differently.
Much of what I was going to ask about has just been covered, but I have a question that follows on from the conversation that we had with the previous panel. The Equality Network represents the intersex community in Scotland, so I ask Tim Hopkins to expand a little on how the bill might or might not affect that community.
It is very important to say that we do not represent the intersex community. In fact, we do not claim to represent anybody; we just speak up for people’s equality.
Our intersex project is at a very early stage, and we are in the process of speaking with intersex people in Scotland and the rest of the UK to identify what people’s needs are. That is in advance of the Scottish Government consulting on intersex equality next year. We work very closely with Intersex UK, which is one of the UK’s intersex organisations. It has a number of key priorities for change, including one that the previous panel mentioned: the disregard for the bodily autonomy of young intersex people when, for example, they have surgery performed on them when they are too young to consent to it, to make their sex characteristics look more usual. We are supporting Intersex UK on those calls.
Intersex UK is not at the moment calling for the census to include a question about intersex status or what a person’s sex characteristics are, but it is calling for the Equality Act 2010 to be amended so that people are protected from discrimination because they are intersex—because they have variations of sex characteristics; that is, the chromosomes, gonads, genitals or hormones in their body do not match what is considered to be typical for males or females. We would like the Equality Act 2010 to be amended to protect them from discrimination on that ground. However, that is not currently a protected characteristic, and people are not currently calling for that question to be added into the census as a separate question.
The question would arise if you asked about biological sex rather than about—as has happened for the past 20 years—self-identified sex. You would then need to consult intersex people about exactly how they would want that to be handled. As we have already explained, we think that that would be a retrograde step in any case.
In its written evidence, For Women Scotland said:
“Human beings are sexually dimorphic, and an individual’s biological sex is an unchangeable characteristic.”
Do you agree or disagree with that?
Some biological sex characteristics, such as hormones and genitals, are obviously not unchangeable. Some trans people have surgery to change some of their sex characteristics. People cannot change their chromosomes, but the matter is not as simple as people being either XX or XY; there are people with XXY chromosomes and people whose bodies have more than one chromosome in them. Therefore, things are not black and white.
Earlier, you talked about privacy. Surely the three questions that you are looking for would make privacy less likely. If a person was asked whether their sex at birth was male or female, for example, and there was then a voluntary question about gender or trans identity, that would allow people to protect their privacy. Surely if there was a compulsory question that asked whether a person is male, female or other, that would be less likely to allow people to have privacy, because answering it would be compulsory.
If the sex question is going to be compulsory and it asks about a person’s sex at birth, that will be an invasion of privacy, because a person who was living as a trans man or a trans woman would have to answer it with the opposite of the way in which they live. A trans woman would have to answer “male”, and that would be an invasion of her privacy. If the question was about a person’s self-identified sex, a trans woman would be able to answer “woman”, and her privacy would be protected from that point of view.
We think that the question about gender identity should be a voluntary one. However, there is an overall issue that relates to how to protect people’s privacy in answering even the voluntary questions. That goes to the arrangements for doing the census and the arrangements that need to be put in place so that individuals who share a household can fill in the individual form in a private way. I know that NRS is putting a lot of thought into exactly how that can be done so that people can fill the form in without the people who share the house seeing the answers.
You have raised an important point. One person per household fills in the form, and that can obviously cause issues and concerns in certain households in which people might not necessarily be open to having a member with a different identity. However, I still think that, if there are three categories, that will make privacy more difficult. We will have to agree to disagree on that.
One of the things that came out in the previous session, although I had to coax it out a wee bit, was that there is clearly an issue among some women’s groups about people being able to self-identify. The previous panel saw that as a potential threat to females. The reason for that is the rapid growth in the trans community in the past decade or two. The number of people who are trans has grown by 700 per cent—I saw that figure, although I do not know whether it is accurate—over the past five years. How would you reassure women who have concerns about safe spaces and so on?
I will give a very quick answer, and then I will let Vic Valentine continue.
Vic Valentine touched on the home care aspect earlier, but I am talking about wider issues.
My quick answer to that would be that, if the committee has concerns in that area, I strongly urge it to speak to the organisations that are providing women-only services to the most vulnerable women in Scotland. Organisations such as Rape Crisis Scotland and Scottish Women’s Aid now provide services that are trans inclusive—they provide those services to trans women. They have been developing that over many years and have worked through these issues to ensure that they know that they are providing safe services. I am very sure that those organisations, and organisations that work for women generally in Scotland, such as Engender, would be very happy to speak to members of the committee and give further evidence on this.
I asked the first panel this question, so it is fair to ask you. The submission from the Equality Network and the Scottish trans alliance says:
“A non-binary person is a person ‘identifying as either having a gender which is in-between or beyond the two categories ‘man’ and ‘woman’, as fluctuating between ‘man’ and ‘woman’ or as having no gender, either permanently or some of the time’”.
I can understand people having a trans identity, but I am struggling with “some of the time”. How can we have robust census data if people are having an identity some of the time. Could you explain that?
Yes, sure. It is a hard definition to say without taking a breath, is it not?
We use the term “non-binary” as a catch-all definition for all trans people who would say that just the word “man” or just the word “woman” does not describe their sense of themselves. The expanded version that you read out gives examples of the various ways in which those people might feel that the words “man” or “woman” do not describe them. Even if somebody has a fluctuating gender identity, or a sense of themselves that shifts, we would characterise that person as being permanently non-binary, because having a gender identity that shifts would make you the sort of person who would not use the words “man” or “woman” all of the time to describe yourself. Does that make sense?
It does in a way, but are you saying therefore that their identity is a kind of psychological thing rather than something a bit more physical? The key point that was made by the previous panel was about biology and dimorphism, which we talked about. Are you saying that, for those people, their identity is psychological?
For some people, some aspects of how they feel about their sex are about how they perceive themselves. It is an aspect of identity, rather than about what their physical body is like.
I go back to an issue that was raised earlier by the convener. The example was given of a vulnerable woman who wants to have intimate care provided by a woman. We have discussed that, and you say that you do not want a blanket exemption. However, in your view there could be some exemptions if we go down the route that biological sex is no longer to be taken into account in that regard, but self-identification is. Would that not mean that the onus would change and would be on the vulnerable woman to prove that they fall within some exemptions?
At the moment, the woman says that she wants intimate care to be provided by a woman, and it is clear that that intimate care will be provided by a woman who was born as a woman, and not a woman who may, from time to time, psychologically identify as a woman. If, then, the exemption approach is taken and it is not to be a blanket exemption, the onus is on you or your family to prove that you fall within that exemption. I do not know whether that is really where people want to end up in this important debate. I do not think that that is what you intend.
I do not think that the scenario that you have outlined is something that I would propose as being a good outcome to this—
But how could you exclude that as a result of your approach?11:00
We would not describe a person who did not permanently and constantly identify as a woman as a trans woman and we would not think that that person would be eligible for women-only roles.
Who would make all those decisions on a moving basis in relation to care? How would all that happen? As a lawyer by trade, I can say that a fundamental approach to definitions is very important, because it makes things clear. A legal approach to definitions has to take into account a whole series of what ifs and to anticipate the many different circumstances that pertain to issues that are impacted on by those definitions, whatever they may be. I see fundamental problems coming down the line.
I see the mandatory question remaining a binary question, with a voluntary gender identity question for people who wish to provide that information voluntarily. I hope that they do so, given that the purpose of the census is to collect data. I see that as a straightforward approach that reflects people’s rights but which also reflects others’ rights to have intimate care, for example, provided by somebody of the same sex. That is how I see it.
Fundamentally, what needs to be decided is whether the compulsory question is going to ask for the three things that I mentioned earlier: biological sex, legal sex or the sex that you live as. That is the fundamental question. If the answer is the third of those—which, we should bear in mind, is what has been done for the past 20 years—we would argue that, in that case, there must be a third option. However, the only reason for putting in the third option is not to ensure that trans people can be counted but to give non-binary people an option that they can truly answer so that they do not have to be dishonest by ticking either the male or the female box. That is the only reason for a change in the compulsory question from 2011—it is not about counting people.
But there has not yet been a change. That is what we are all discussing.
Well, with regard to what the NRS has proposed—
I go back to my point that the bill is about not the mandatory element but the voluntary aspect. The NRS has clarified that this morning.
I am sorry to interrupt, but Stuart McMillan has indicated that he wants to ask a question. I know that you had to pop out earlier, Stuart, so you can ask your question now.
Stuart McMillan (Greenock and Inverclyde) (SNP)
I just want to follow up on Kenneth Gibson’s question about what might happen at a given time. The census is about helping to plan services for the future, but what if someone felt that they were a man or a woman at a particular time and then changed their mind later on? Let us say that the information was accurate when the census was completed but becomes inaccurate shortly afterwards. I am trying to understand how that would play out with regard to the service planning that any Government or public body would attempt.
I go back again to the idea that, in totality, the sex data is incredibly useful in planning sex-specific services, but an individual’s response to the sex question would not allow you to necessarily know absolutely and with full clarity what their sex-specific healthcare needs would be. That would be the case even if they were not a trans person, because it has nothing to do with their gender, with being a trans person or whatever. Therefore, although it is not impossible for some people who have a shifting sense of how they would describe their sex to answer that question one way and then answer it another way if they were asked to complete the census again three weeks later, we cannot foresee that having an impact as far as the broad overall use of the sex data is concerned.
With many other questions on the census, the information changes over time. For example, the census asks about people’s employment. That information is also important for planning services, but people’s employment status can, of course, change over time.
I have a couple of supplementaries to wrap things up, one of which relates to Kenneth Gibson’s question about fluid identities. You will be aware of the story of the Credit Suisse director who spends half of the week identifying as a woman, Pippa Bunce, and the other half of the week identifying as a man, Philip Bunce. How would you expect Philip or Pippa to answer the sex question on any particular day?
I do not know that I can answer that question. In terms of how we would think of that person’s identity, we would probably describe them as a non-binary person, so we would probably say that they would choose the third, “Other” option in response to the self-identified sex question, but I could not presume to know.
He or she identifies as a woman on particular days; indeed, I understand that she won a women’s financial award in the City. Would it be acceptable for Pippa or Philip to identify as the sex or gender that they identified as on the day that they happened to fill in the census form?
I think that each person who completes the census can select whatever box they want to anyway, regardless of whether they are a trans person. I do not feel able to say which box I think that they would need to tick.
That is fine.
I have now found the Scottish trans alliance’s submission to the House of Commons Women and Equalities Committee’s transgender inquiry. In it, you said that the Equality Act 2010 should be amended to
“Remove the genuine occupational requirement ... allowing some jobs to require applicants must be cisgender”—
that is, not transgender—
“and replace it with a GOR allowing posts delivering trans-specific services to require applicants must be transgender”.
That would exclude cisgender people. In other words, you argued that there should be a genuine occupational requirement for trans services but not for services to women. That is what your submission said.
No. There are sex genuine occupational requirements and, in the case of trans people, the occupational requirement is reversed. For example, there can be a job for which there is a requirement that the applicant be a woman, but there can also be a job for which there is a requirement that the applicant not be a transsexual—that is the language that the law would use. We were saying that, with the latter of those two requirements, it should no longer be only the case that it can be required that a post not be held by a transsexual, but that, with some posts—for example, in organisations such as mine—it might be required that the postholder be a trans person.
Okay. Thanks very much.
Finally, I return to the issue of the Equality and Human Rights Commission’s advice, which was raised earlier. The first panel mentioned the fact that The Guardian invited a number of people to give legal advice on gender recognition from a variety of points of view. One of those people was Julian Norman, who is a barrister in London. They pointed out that the EHRC advice on single-sex spaces has changed. Although, originally, the EHRC said that someone who had a gender reassignment characteristic could enter single-sex spaces, it has changed its advice, with the result that it is now more ambiguous. Were you aware of that?
There are two separate issues here, the first of which is what the meaning of sex is in equality law. My understanding is that the EHRC is very clear about that—it talks about legal sex, not biological sex.
The second issue relates to the exemptions. For example, is a single-sex service for women allowed to turn away a trans woman, whether that woman has a gender recognition certificate or not, without that being gender reassignment discrimination? The answer is yes, because that is what the law says. The EHRC has said that a single-sex service can turn away a trans women, even if she has a gender recognition certificate and is therefore legally a woman, without the service being taken to court for gender reassignment discrimination, because of the exemption for trans. That being said, all the services in Scotland that provide crucial services to women do not turn away those women, but there is the legal ability to do so. That is about gender reassignment discrimination, which is a separate issue from the meaning of the term “sex” in the Equality Act 2010. The commission is very clear that that is about legal sex, not biological sex.
Clearly, there is a wider debate here, and things are shifting. Anyone who has read the article in The Guardian will know that all the eminent lawyers seem to have different views on the issue. One criticism has been that there is a lack of clarity. The committee has been asked to look at some of the big, fundamental issues, which are crystallised in the Census (Amendment) (Scotland) Bill, at a time when there is some legal uncertainty, even among the experts. Do you agree with that?
As you know, there is certainly a big debate going on about the Gender Recognition Act 2004. Both the UK Government and the Scottish Government have proposals on that, and those proposals will have some impact on the way in which the census is perceived when it happens. Fortunately, the Census (Amendment) (Scotland) Bill does not specify what the sex question should be.
As I understand it, the Scottish Government has promised that the bill to reform the Gender Recognition Act 2004 will be introduced in the 2019-20 Scottish parliamentary year. By the time that the committee—if it is this committee—gets to look at the census order, which specifies the subject matter of each question, and the census regulations, which set out the question paper, the process of developing the new gender recognition bill will be much further along. That will be the key point at which you should look very closely at the wording of the questions that the Scottish Government is proposing. Once we know the Scottish Government’s proposed reforms, we will be a lot clearer on the future of gender recognition law than we are now. We are nine months away from the Scottish Government announcing in its legislative programme for next year what it will do about the 2004 act.
I thank the witnesses for coming in to give evidence.11:12 Meeting continued in private until 11:35.
6 December 2018
Second meeting transcript
The Convener (Joan McAlpine)
Good morning, and welcome to the 33rd meeting in 2018 of the Culture, Tourism, Europe and External Affairs Committee. I remind members and the public to turn off their mobile phones. Any member who is using an electronic device to access committee papers should ensure that their device is turned to silent.
Agenda item 1 is consideration of the Census (Amendment) (Scotland) Bill at stage 1. This is the second meeting at which we will consider the bill. The purpose of today’s meeting is to consider the gathering of voluntary data on gender identity and sexual orientation.
We have with us a panel of data users and analysts, whom I thank for coming to give evidence today. Lucy Hunter Blackburn is from Murray Blackburn Mackenzie; Professor Jackie Cassell is the head of the department of primary care and public health, and the director of research and knowledge exchange, at the Brighton and Sussex medical school; Gerry McCartney is the head of the public health observatory division at NHS Health Scotland; and Professor Susan McVie is a professor of quantitative criminology at the University of Edinburgh.
We were also due to take evidence from Ipsos MORI. However, because of a lack of videoconferencing facilities in the Ipsos MORI office, we are unable to do so.
The main purpose of the bill is to add voluntary questions on gender identity and sexual orientation to the 2021 census. In the course of scrutinising this short bill, the committee has received submissions in which concern has been expressed about the conflation of the categories of sex and what is called “gender identity” in the bill. In a number of those submissions, it has been suggested that the approach could be problematic for the gathering of data and could set a precedent.
In “Scotland’s Census 2021—Sex and Gender Identity Topic Report”, the census team said:
“Sex is a key demographic variable”
and that sex data
“is a vital input to ... demographic statistics which are used by central and local government to inform resource allocation, target investment, and carry out service planning and delivery.”
The Women’s Budget Group has said that it relies on sex-disaggregated data in analysing the economic and social impacts of public policy on women.
Lucy Hunter Blackburn, you express the same concerns in your submission. Will you talk about them, particularly in the context of data gathering?
Lucy Hunter Blackburn (Murray Blackburn Mackenzie)
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.
Thank you. I should say, for the record, that there will be either a gender identity or a trans question, the wording of which we will consider later, in addition to the sex question. Do other members of the panel wish to comment on that point?
Professor Jackie Cassell (Brighton and Sussex Medical School)
I will comment on the use of such data. There are many uses of data on sex, some of which are more important than others, and we should look at the wider context of that data. It is important that the census is a point of reference. With the growing use of administrative data sets—a couple of censuses away, the census will look very different and we will draw on national health service data and all sorts of data—it is important for the credibility of the census as a data resource that gives information at a low level on small populations that there is consistency between the census data on sex and other data sets.
The various routine collectors of sex data have public equality duties, and it is important that people do not start looking elsewhere because the census data is seen to be problematic. There is a real issue about precedent and the credibility of the census and, for the purposes that those many data sets are drawn on to provide sex data, it is key that we have a good representation of the definition as it currently stands in law. That can, of course, be discussed and moved on, but it is important that the census is consistent with other data sets and with the definition as it stands now.
What is the importance of that for health purposes?
There are many areas of health in which biological data and biological risk are very important. Those interact with gender identity, which is very important in some areas. We know that, for many conditions and treatments, sex is a big differentiator of outcomes. It is important that the data is robust in order that we can meet our duties, which are many and are often not well met, in the fair provision of effective treatment to men and women, which may not always look the same.
Gerry McCartney (NHS Health Scotland)
It is important that the committee differentiates between two different things: the provision of services for individuals and population-level data. Clearly, we do not use census data to institute or identify services for individuals. Notwithstanding the points that have been made, we would not use the census to identify people for screening or other such purposes; we would use the existing health record data sets such as the community health index data sets and the clinical records associated with those to identify individuals who needed particular services. However, the census is a key data source for resource allocation and planning at a population level. It is important to recognise the difference between those two data sets.
In Scotland, we have some extremely rural areas with small populations, where small differentiations in the census data—or any data—would be significant for resource allocations.
Yes. The census is used for a variety of purposes, including the denominator data that calculates the index of multiple deprivation and other such indices right down to extremely small geographical areas such as data zones. All the data that we collect in the census is used, through other means, to make those more precise resource allocation decisions for local areas.
Professor McVie, criminology is your area. Will there be an impact on that?
Professor Susan McVie (University of Edinburgh)
I am not here to speak on criminology per se; I am really here as the co-director of the administrative data research centre in Scotland.
Scotland is at the forefront of data linkage, and the census sits at the core of data linkage. We have what we call a census spine. The census forms the core of how we link all other administrative data sets together, so it is vital that the census is accurate in its measurement of the characteristics of the population in order that it can form that strong spine to which we attach other data sets.
It is a fundamental property of research that, in designing a questionnaire, you need to be extremely clear about what you are measuring. Possibly controversially, I think that the General Register Office for Scotland got it wrong when it redesigned the census in 2011 and conflated sex and gender identity into one question. We are now trying to disentangle those things. Arguably, the measure of sex in the 2011 census data is not accurate.
In your papers and discussions, you have probably come across the fact that the issue of sex and gender is not simple but quite complex, with lots of dimensions to it. Trying to boil it down to two questions in the census is somewhat problematic, which is probably why we are all around the table today, trying to disentangle the different aspects of it.
From a research point of view, we know that certain conditions—medical conditions, for example—are sex related. Regardless of a person’s gender identity, there are certain medical conditions that they will be more likely to face depending on whether they were born a man or a woman. We also know—this is probably more to do with my area—that certain social processes are differentiated for men and women. There are sex-related biases, discriminations and forms of inequality that do not necessarily go away if a person changes their gender identity.
It is important to distinguish between sex, on the one hand, and gender identity, on the other, in order for us to understand, for example, whether trans women have worse outcomes than cis women and whether trans men have worse outcomes than cis men. If we are to properly understand the relationship between sex and gender identity and how that impacts on factors such as health, the likelihood of getting a job and attainment in education, we need to disentangle those things so that we can have a much clearer picture.
You say that the GROS got it wrong when it conflated sex and gender identity. It has been put to us that there were notes that explained that; however, when we asked for a copy of the census form, we found that the guidance notes were not on the census form itself but were online somewhere. Do you think that people understood that sex and gender identity had been conflated?
Some people would have gone to the trouble of reading the guidance notes and would, therefore, have understood the situation, but other people would not have done that. The problem is that some people would have interpreted the question as asking about their biological sex, whereas others would have interpreted it as asking about their gender identity. That means that we do not know what that question was measuring in relation to any particular individual.
In addition to that more general conflation, there is a proposal to offer a third option on the sex question in 2021, so the answer could be male, female or other. The wording is not yet decided and that is not set in stone, but it is suggested that that might happen. How would you feel about that?09:15
I have spoken to members of the lesbian, gay, bisexual, transgender, queer and intersex community, and I have to say, for a start, that the word “other” is highly offensive. Many people from that community do not consider themselves to be “other”. Fundamentally, we are still conflating two things if we use a category of “other”. Sex is about either biological or legal sex—whichever you decide to use—whereas gender identity has non-binary options. Sex does not have non-binary options. Even someone who is intersex, which is essentially a medical condition, is generally an intersex male or an intersex female on the basis of their physical and genetic composition, so you would still be conflating two things if you added an “other” category.
The main thing to consider is what the different dimensions of gender identity are. There needs to be a series of questions that allow people to adequately express how they feel about themselves, keeping sex separate from that and being very clear about what we mean by sex, with guidance in the documentation. There should then be a publicity campaign around the census that explains why the questions are phrased as they are. It is not the purpose of the census to make people choose something that they do not want to choose to represent themselves; its purpose is to measure the characteristics of the population so that the data can be used to properly understand how such things as healthcare, social experiences and education can be delivered. In the era of measuring inequality, we know that many people from the LGBTQI community feel that they are discriminated against, and we will not properly be able to understand how that discrimination manifests itself if we do not understand what their sex is.
Claire Baker (Mid Scotland and Fife) (Lab)
I want to ask about the voluntary aspect of the sexual orientation and gender identity questions, as they are phrased at the moment. The Equality Network and the Scottish trans alliance said in evidence that it should not be assumed that adding those questions to the census will give an accurate count of the trans and LGBTI community, and that the questions might be seen as being too sensitive, so some people would be reluctant to answer them. If the questions are voluntary and the data will not be reliable, is it worth asking the questions at all, or will helpful data and information come from the questions being answered on a voluntary basis?
Lucy Hunter Blackburn
We have some evidence from “Scotland’s Census 2021—Sex and Gender Identity Topic Report” that take-up of the voluntary question was quite high. From memory, I think that something like 94 per cent of people put something in when it was road tested, so the initial evidence is that people will respond. However, others might wish to say more about that, because that report did not tell us what the response rate was among people who were trans identified, and that is clearly where it matters most.
The evidence from three waves of the national sexual attitudes and lifestyle survey is that such questions can get good response rates, even outside the census. It is likely that questions about gender, sexual orientation and trans identity will change over time, because they shift with social change, but there is strong evidence that it is possible to get reasonable quality data on many such aspects from surveys that have been done in many settings with general population samples, which supports the questions’ acceptability.
They are complex questions, and some people will have better understanding of them than others. There is also evidence that there will be reasonably high non-response rates, but there is no doubt, from many studies of many kinds and population samples, that it is possible to get useful data that can inform policy.
The religion question in 2011 was voluntary, but we have made huge use of the data from it and have been able to explore the prevalence of religions across Scotland and to use that information to think about discrimination and other important facets of society.
There are also examples of where we have been able to link data—in a complicated way, to avoid individual identification—to make better use of the ethnicity data from the census. That has allowed us to explore differences in life expectancy and hospital admissions among the different ethnicities. It has really moved forward the evidence base and what we know. For example, life expectancy for white Scots is much lower than life expectancy for many of the ethnic minorities in Scotland, but hospital admissions for some conditions are higher for some ethnic minorities. We would not have known those things without the questions in the census.
I know that the ethnicity question was not voluntary, but we can make similar use of the data even if questions are not completed entirely, because we will still get a feel for the differences between groups.
I am not sure whether you have had a chance to look at the bill, but it is very short. We have already had responses from the panel about the use of the term “gender identity”, which is, as Lucy Hunter Blackburn said, in section 1. It has been suggested that, when it comes to the voluntary question, the term “gender identity” could be changed to “trans” so that the question would be more specific. Do you support that change in wording? Would it work better than the current proposal?
Professor McVie talked about the previous census in 2011 and questioned the robustness of the data from the sex question, given that the guidance was online and was not that obvious to people. Have there been any unintended consequences of the decision that was taken in 2011, or is it too early to make comparisons? Have problems or issues arisen as a result of our not being clear about that question?
I am sorry that this is so long. I have a final question. In the context of the society that we live in, is it possible to ask a question on sex in a way that means that we are clear about how people will answer it?
I will try to remember all the questions. Can we make a question about sex clear? Yes, we can. We can ask about biological sex or the sex on a person’s birth certificate, which, in effect, is their legal sex. That means the sex of someone when they were born or, if they have a gender recognition certificate, the sex to which they have transitioned. That would be clear.
I am trying to follow back your train of thought.
My question was particularly about whether there have been unintended consequences from the question in 2011.
It is impossible to tell, because we cannot disentangle the data if we have conflated two things. We would know that only by getting the questions right in the 2021 census. We can link censuses together, so we would be able to link back to the prior census and identify the proportion of people who interpreted the question as being about their biological or legal sex, and the proportion who identified as a trans man or woman and so put their preferred gender identity. The honest answer is that we do not know the numbers, which is why the census is so important. The census is the only source of data that we have that is an entire-population measure. It is important to measure the population accurately, but it is more important to ask questions that are clearly differentiated so that people understand what they are being asked.
You also asked about the proposed questions.
I asked about the term “gender identity”. Should it be in the bill? Will that make it clear what the questions will be about?
I am not aware that a definition of “gender identity” has been agreed. In the Equality Act 2010, the protected characteristic is “gender reassignment”, and even that is a bit vague, to be perfectly honest. “Trans” and “gender identity” are wider concepts than “gender reassignment”. If you want the bill to meet the Equality Act 2010, the question should be focused on gender reassignment, but if you want to respect the wishes of many LGBTQI communities who want their self-identified gender to be recognised in the census, you will need to ask a wider set of questions. That is why it is difficult.
This is such a complex area and it is very difficult to squash it down into one question about sex and another about trans, gender identity or something else. Unfortunately, there is not yet consensus on what is meant by “gender identity”. There is possibly more consensus on what people might identify as trans, but that is broader than gender reassignment. It is tricky terrain in definitional terms.
Annabelle Ewing (Cowdenbeath) (SNP)
Good morning. I want to go back to the 2011 census guidance on self-identification. It has been argued by some that because the cohort of people who followed the guidance and answered the mandatory question on sex accordingly would be quite small, statistically it would not have made much difference to the accuracy of the data. It would be interesting to hear your comments on that argument.
Lucy Hunter Blackburn
If we look at the 2011 census versus the 2021 one, that is a big issue. We cannot tell what happened in 2011, although, as Susan McVie has said, if we were to get very good clear questions in the next census we could go back and quantify that better. The 2021 census is very much an unknown. I would be very reluctant to assert that numbers would be smaller in 2021 through people taking advantage of the ability to identify as something other than their birth certificate sex. We just do not know.
However, we do know that it is a growing phenomenon: it is emerging that the numbers of people who are presenting in the most formal sense—in gender reassignment and gender identity clinics—is going up very fast. However, that is only one part of the trans population; not all of them will engage with such services. We would be introducing a huge unknown into the data if we were simply to add an extra category, and we do not know how many people would use it. We could not do much if we were to do it simply on a gender identity conflation basis. We could not do all the things that Susan McVie so clearly described—trying to disentangle all the characteristics of a person so that we can really know about them. That is the problem with trying to say that the numbers will be smaller in 2021. I do not think that there is any basis for saying so.
I work largely on data about education and higher education. We need to think not just about the aggregate numbers in the population, but about where they might be concentrated. The data that I use is mainly about people in their teens and 20s who are in full-time education. If the phenomenon of taking advantage of gender identity flexibility in the question were to be particularly concentrated in that sub-group, the data effects would be much more concentrated in that sub-group, so the data would be unlikely to affect people who are aged 50 plus. I would guess that there might be a minimal effect, but as you know, down the population that could change. For me, as a data user, it is important to know that the effects could be very unequal in sub-groups, and in ways that really matter.
That is interesting. Do other panellists have any comments on that point?
I agree with that. We might think that we will have small numbers, but until we have a measure in the census we will not know how small or large the number is. Lucy Hunter Blackburn is absolutely right: for a population at macro level it will probably not make a lot of difference. However, the purpose of the census is not just to carry out macro-level population analysis; it is also for micro-level analysis. That is why we collect such detailed information about individuals and households. We find, for example, that vulnerable and marginalised populations are often very small, but if we do not have accurate data on such groups, we cannot tell how badly discriminated against they are.
I can give examples about health conditions. Trans women are still at risk of having prostate cancer. If we do not properly understand the relationship between sex and gender identity, we will not be able to analyse whether trans women and cisgender men are more or less likely to have such conditions. Trans men probably still have a higher risk of contracting breast cancer than cisgender men, because they are biologically women. If we do not collect that level of information, we cannot properly understand what risks certain groups in the population face.
There is a concern that people will not answer the sex question, so the question is whether we should have another category. Perhaps we should have a public campaign around why it is important to ask the sex question. I do not know whether many people from the LGBTI community are aware that if they do not answer the sex question, they will be assigned a sex through imputation. If their objection to self-defining as male or female is problematic, their objection to being assigned a sex that they have not decided on would probably be greater.09:30
I have a couple of points to make. The census is clearly the most comprehensive data source that we have about populations every 10 years, but committee members should be aware that the census is not without its issues. Obviously, we are moving away from face-to-face collection of the data, but we are not sure what impact that will have on response rates and the accuracy of responses. We know that there are budgetary and other pressures to move the census further away from that, and perhaps even towards a sampling approach, all of which would reduce the quality of the data.
Notwithstanding that the census is the best source that we have, we do not have 100 per cent of the population responding. We therefore already have statistical uncertainty around some aspects of the census. There have been census years that had huge problems in that regard. Famously, in 1991, around the time of the poll tax dispute, there was a very large non-response because people were fearful of being caught up in the dispute. As a result, a large number of people had to be imputed, as Susan McVie indicated, into the data set in order to balance what we thought was the missing population in 1991.
There are problems with the census as it is, so we should steer clear of thinking that the census is accurate down to 0.001 per cent in every parameter that we collect.
A point was made in evidence that we took last week by an individual who said:
“Of course, the sex question is massively important for things such as health planning, but sex is only a proxy for making decisions about sex-specific services ... for example, not all females need cervical screening, because they might have had a hysterectomy. We cannot tell whether someone will automatically need cervical screening just by knowing that they are female.—[Official Report, Culture, Tourism, Europe and External Affairs Committee, 6 December 2018; c 24.]
That person made that point to support their view; it would be interesting to hear your views on it.
We have heard from, for example, Professor McVie, that the data is used more widely than simply for health purposes. However, even if we just take the health purposes and go back to the mandatory sex question referring to sex at birth, or the sex noted on the birth certificate, in order to deal with the legal sex definition, I would have thought, as a woman, that there would be many other potential health implications for those who tick the box to indicate that they are female. Whether someone has had a hysterectomy or not, there will be many other health issues. Am I wrong in that thinking?
Most individual healthcare services will be run through the CHI data set, which is the collation of all a person’s health records, including general practitioner records, prescription records and hospital admissions. That is the system that is used for identifying need for screening services. In relation to the trans community, the variety of healthcare needs within that very broad spectrum will vary widely, so the best way of identifying needs is not through the census; the best way of identifying those needs is through existing health records.
A woman having had a hysterectomy is only one element of her health history, but surely there are many other issues pertaining to someone of the female sex beyond hysterectomy and cervical screening. The argument about that was not compelling, to me. I want to hear what the data statisticians feel about that.
The answer goes back to whether we are thinking about individual need or population-level need—the two cannot be conflated. A woman’s needs depend on a wide variety of characteristics.
Does that go beyond whether one requires cervical screening or has had a hysterectomy? There may be other issues. Professor McVie mentioned breast cancer.
That is true, but none of those would be identified through the census, and nor would people’s needs. Those would be identified through their health records.
I have one last question, and others will probably want to return to this territory. I am interested in the process of the census. Leaving to one side the matter of face-to-face collection, at the moment the census is conducted per household. Concerns have been raised about people’s privacy and about questions that they might feel are intrusive—notwithstanding that it is a confidential process. What are the reasons for the census being carried out on a household basis, and is there now an argument to carry it out on an individual basis, given that the questions are becoming more personal, at least in people’s perceptions?
Lucy Hunter Blackburn
The facility to give people individual forms is being explored. In the coming census in 2021, people can apply for an individual form, so that they do not have to provide their data as part of a household. That is part of the debate.
However, there are probably other questions on privacy. I am not a historian of the census, but if we go back to 1901, that was a world in which the paterfamilias filled in the family form. We have moved on a great deal since then, as you can see in the planning.
Susan McVie mentioned the publicity and public information for the census in 2021. One of the things that will be very important will be that we make the processes clear to people who, for whatever reason, do not wish to have aspects of their data reported on their behalf. NRS says that it will test further how it will run that part of the census. It is important to note that we are changing that.
That is good news.
That is an important point. It was not clear from the briefing document to what extent piloting of various sensitive questions had been done, taking account of how people in different circumstances would complete them. That has been a big issue in household surveys: the national sexual attitudes and lifestyle survey has sampled individuals within households precisely in order to avoid that. It is certainly the case that there will be many circumstances in which it could be especially difficult to answer such questions. It might also be difficult not to be part of a household response. This is a key point—by not being part of that response, a person is disclosing. The matter needs really careful consideration. It will probably affect only a small minority of people, but it is important to get it right.
I will make a small point on that. Everything that has been said is true, but one of the risks of moving towards individual responses relates to the response rate. It is a balancing act. The classic case is trying to capture the teenagers who are not around when you are collecting the census data, so we just fail to get them. That is a huge problem for voluntary surveys, but it is also a problem for the census. It is just a lesser problem because the census is obligatory.
The more barriers to collecting the data that are put in place, the poorer its quality will be. There is a balance to be struck in respect of whether to get the best available data from one member of the household, or to collect individual-level data in the full knowledge that the response rate will be lower.
I can see that that would be a balancing act, but people’s right to privacy is fundamental. Professor McVie has indicated that there could be a wide-ranging information and take-up campaign to encourage people to complete the census individually.
That would be part of the balancing act. Cost is another factor.
Kenneth Gibson has a supplementary question.
Kenneth Gibson (Cunninghame North) (SNP)
I am not wholly in agreement with Annabelle Ewing on this particular issue. As Dr McCartney said, there is a real issue about missing out large numbers of people. In the committee, last week and this week, we have been discussing the sex question, but it is irrelevant if we do not get hold of the person in the first place. The number 1 priority has to be an accurate population census, and other things are secondary to that. What do the panel think about that?
Lucy Hunter Blackburn
It is important to note that the proposal is still for a household form—the census is not being moved on to a wholly individual footing. This might be an interesting point to pursue with the Government, but my understanding is that, although it will be a household survey, people can request an individual form. In that case, the question that arises—and which you are raising—is: how far will that create the problems of loss that Gerry McCartney has highlighted?
In order to come out of the household survey, a person must request an individual form, which will mean that 5 million separate forms will not have to be sent out. As Gerry McCartney has said, this is all about striking a balance, and I presume that NRS is hoping that this balancing act will produce the right combination of coverage and protection for those people who are uncomfortable with making a household return.
People can request their own form if they want to.
Lucy Hunter Blackburn
That is my understanding.
Alexander Stewart (Mid Scotland and Fife) (Con)
Good morning. You have talked about ensuring that we get accurate information and data. That is vital because organisations, especially in the public sector, need to think about how they provide services on that basis. Is there a good and meaningful understanding of the terminology around gender identity that can capture that kind of meaningful data? Is there such an understanding of how public authorities can use the data that is captured to ensure that they manage their equalities duties effectively and provide the services that are required?
I am not talking about the census setting as such, but there have been many data collections of this kind and, obviously, the piloting that Ipsos MORI does is carried out. For various age and cultural groups, there might need to be a lot of explanation—perhaps more than would be needed if one were to want to justify biological or legal sex. Nevertheless, there are many studies that have provided good-quality data, and they are a great resource to build on.
For me, the issue is ensuring that we have transparency and clarity with regard to the question. It is all about looking at the users of the census and the information that they need. For example, do they need to know that someone self-identifies as trans, which would be a simple yes or no question, or do they need more detail on, say, whether someone self-identifies as a man even though they are a woman? There are all sorts of other gender identities such as gender neutral and gender fluid. The issue is the amount of granularity that users need. Of course, that consideration has to be balanced with the amount of personal information that people from those communities really want to give in a census.
It is all about the benefits of the census, which are that it enables us to see our population’s broad characteristics, to plan and target resources and to do fantastic research. Scotland is at the forefront of some amazing research that is based on administrative data, but we have to identify the benefits of what we are doing and the level of information that users need to benefit the population, and go no further than that. That would be my advice.
The level of data that you will get—and will want to get—from the census is fairly limited, but there will also be things such as the next sexual attitudes and lifestyles survey, which will allow you to make well-founded inferences about those populations and the distributions within them. The census is part of the picture, but not the whole of it.
I think you have exactly identified the issue. The census is one of the things that can be used to understand and support individuals across the spectrum in making an identification and seeing how they fit into the process. In turn, organisations can then look at how they might fit around them in order to provide support. If that happens, individuals will have the confidence to provide the information and make sure that what you get is correct.
Such an approach will help to identify many things, but there will always be individuals who are fearful of giving that information because they think that it might be misconstrued or looked on differently. How will we get everyone to do this? After all, without completely accurate information, we will have only a snapshot.09:45
You will not, but you will get very useful information. When the first sexual attitudes and lifestyles survey came out, people said that we would not get any useful information and that people would make it up, but that is clearly not the case. We get good, useful information on issues on which, in some cases, there may be no final answer.
If we are thinking about small population groups and the utility of the data, one of the really important uses of the data is to look at different questions across the census. For example, that can tell us whether people with particular characteristics are more or less likely to be in particular occupations. One thing that we argued for strongly at the previous census was that it should collect income data to enable us to understand whether there were differences according to people’s incomes, but that suggestion did not make it to the final level. Information about the intersectional aspects of the population is missing from the census data. It is information that we can only really get from a census where there is a very large sample size that can be broken down by different characteristics, including protected characteristics, and socioeconomic factors.
Jamie Greene (West Scotland) (Con)
I want to explore a couple of issues. Question 2 in the 2011 census asked whether the respondent’s sex was male or female. Is it your understanding that people who completed that census answered that question based on their understanding of their current gender identity or do you think they perceived it as a question about their legal status or biological sex?
Lucy Hunter Blackburn
As Susan McVie said, one of the problems is that we cannot tell how people read that question. The best evidence that we have is probably in “Scotland’s Census 2021—Sex and Gender Identity Topic Report”, which contains an interesting and quite rich data set of interviews with trans people who had filled in a pilot set of questions, including a binary sex question. Those questions were compared with others, and it was interesting to read that there was a very mixed reaction in that group to the meaning of a question that was pretty much like the one in the 2011 census. We cannot tell whether this is the case, but there is some indication in the topic report that at least some people who identify as trans read that question as a biological sex question.
I was very taken with Susan McVie’s argument that, if we have a really good and clear set of questions in the census, we will be able to backtrack and look at the previous data. However, until we do that, it will be difficult to judge how the question has been read. For most of the population, it will be a very straightforward ticking of a box, but for the group that we are interested in, it is unknowable what proportion will read it in one way and what proportion will read it in another.
Surely the question at the core of this is what the purpose of the census is. What sort of data should we collect? The previous census asked all sorts of weird and wonderful questions about how people travelled to work and whether they were looking for a job. This is about working out how important sex data, gender identity data and sexuality data are. Do you have views on what data should be collected that will dictate what sort of questions we need to ask people?
If we start with the Equality Act 2010, we should be collecting data on sex. Whether we define that as biological sex or legal sex is essentially a matter for debate and will not make that much difference to the numbers.
We then have sexual orientation. There is already a good set of well-tested questions on sexual orientation, so that is not particularly problematic.
We then have gender reassignment, which is a protected characteristic. I do not think that what the 2010 act means by gender reassignment is entirely clear. If we look in detail at the content of the act, the description of gender reassignment and some of the examples that are given are a bit blurry. However, a number of surveys have considered issues around gender and gender identity, and I think we should be going to the tried and tested surveys that have identified good questions that have had cognitive testing to ensure that people understand what they mean and that they are relevant and valid in relation to those individuals.
I am not going to give you a set of questions, but I can say that we are not starting from scratch here. Jackie Cassell can probably tell you more.
I agree with all of that. With regard to the trans question, it will be important to think about what that might mean in terms of the kind of dissonance from either biological or legal sex. Clearly, there is a strong sense, which is accepted in the plans, that there are people for whom that dissonance is problematic. It is not at all clear to me who will answer yes to that trans question. We need to think about what we need to know about the range of people who may or may not choose to say that they belong to the trans category beyond gender reassignment. That is a difficult question and it has not been sorted out yet.
If you want to have a population statistic for trans people, you should ask a yes/no question about trans. You should possibly also give people the opportunity to say how they would self-define their gender identity. Some people would prefer not to do that, but we would not be sitting round this table if there was not a demand from the LGBTQI community for the census to better reflect the characteristics of our population. The issue is about giving people the opportunity to self-identify in the way that they wish, while not imposing a set of questions on anyone. At any rate, the question should not be mandatory.
The question about gender reassignment is a more tricky one, because it is a protected characteristic, which means that we should be collecting that data, possibly through a mandatory question.
My follow-up question is about which questions should be mandatory. It is important that the Government collects the data that we are talking about. It seems to me that there is still debate about whether the collection of data about both legal and biological sex would be useful because, as others have mentioned, there are medical benefits—with regard to, for instance, the diagnosis of certain conditions, as has been discussed—to knowing someone’s biological sex as opposed to how they are currently defined in law.
Which questions involve data that we must know and which are ones that people should be allowed to answer in their own way, regardless of what the question is? I do not think that we need to define that question at this point. Do you have a view on whether the method of data collection will change next time round? Do you think that, if people did not have to give face-to-face answers on the doorstep, they might be more honest in their answers? Might there be disproportionate levels of response from certain communities with regard to the census?
One reason why I strongly support voluntary responses to the questions is that it is clear that, as the guidance discusses, not all of them are meaningful to all people.
An example concerns the history of the collection of sexual orientation data in sexual health clinics. Many years ago, if someone had gonorrhoea, syphilis or whatever, we would collect data on how it had been acquired. At that point, we did not ask people what their sexual orientation was, because there are many people who would describe their sexual orientation as heterosexual but may well have same-sex contact. Sexual orientation is a useful construct, but it is not something that everybody feels is applicable to them in the same way, and that is likely to be true for trans, too.
Where something is not universally felt to be a category that usefully applies, it is not clear that you could or should make it the subject of a compulsory question, quite apart from all the wider issues about privacy.
The question was broader, but can I clarify that you are not suggesting that the sex question should be voluntary?
I do not think that the sex question should be voluntary. The issue is the robust data that we want to have by asking the question. The sex question should not be voluntary, but the sexual orientation and trans questions should be voluntary, for various reasons.
Lucy Hunter Blackburn
“Biological sex” and “legal sex” are somewhat contested terms as to which is which. I would characterise the issue in this way: are we looking at someone’s original birth certificate sex or their current birth certificate sex? There is no dispute about it being one of the two that comes up as the legal definition of sex; we are looking at one thing or the other. The main issue about the sex question is which of those two it should be.
Tim Hopkins has made an important point, and one to which the committee needs to give careful thought, about privacy rights under article 8 of the European convention on human rights and how far that might bite on the sex question on the census. The Scottish Government does not talk about that in the policy memorandum. My understanding is that we are talking about gender recognition certificate holders who have changed their birth certificate. There is a substantial point, which will be worth teasing out with the Government, about whether the Government thinks that legal privacy rights at that level kick in for that small group of people.
I want to put on the record that, as far as I can see as a data user, the decision could go either way without affecting the data, given that the decision to collect the current birth certificate sex rather than the original birth certificate sex affects such a small number of people. We know a bit about those people because we have a register, so we know their ages and so on; they are not an unknown group. The committee does not need to worry about the data quality impact of the Parliament’s decision on which of the two routes to go for.
I would be interested to know whether the other witnesses share that view.
Professor McVie is nodding.
Yes. If I had to make the choice, I would go for legal sex, which means biological or whatever is on the birth certificate. There is a wider group of people for whom their gender identity is more fluid and less clear, and that is why it is difficult to have a set of questions that fits everyone. “Trans” is used as an umbrella term to describe a community, but many people in the trans community do not necessarily feel that they are the same as other members of the community.
Some will have had surgery and others will not have done so.
Yes. People might be at various stages of medical treatment. Some people might decide that they do not require any medical intervention.
Jamie, have you finished asking your questions?
Will members of the panel respond to my final question, which was about whether the way we collect the data—digitally, through the post or whatever—will affect the data? It might be a question for Mr McCartney as well. Will our asking the new questions that we are talking about encourage certain communities to answer them such that the data set will be disproportionate compared with the response that we would normally get under a different collection method? I am sorry—that was a convoluted way of explaining what I was trying to say.
There are two points there. First, will changing the mode of delivery change the response to the survey? Secondly, will asking a new and quite sensitive question affect the likelihood of people answering it, and will that be influenced by the mode of delivery?
It is quite a complicated set of circumstances because two things are being changed at once. Testing the effect of the changed mode of delivery on the response to the question will be difficult because we will have nothing to compare it with. What we can compare, I suppose, is the levels of response of people who complete the traditional paper questionnaire and people who complete the census using the electronic form. In survey design, we have tested the asking of sensitive questions using non face-to-face methods, and we know that that approach tends to produce a greater response.
For example, in the Scottish crime survey—I think it was back in 2004—we tested a telephone survey to collect data on victimisation. It was a disaster, because people who had not been victims of crime just said, “That’s not appropriate to me” and put the phone down, whereas people who wanted to talk about crime participated. If I remember correctly, we had something like a 150,000 per cent increase in responses to questions about sexual assault because people are much more likely to respond to such questions if they are not being asked them directly, face to face. There are other examples where electronic means make people more likely to feel comfortable about responding.10:00
On the overall change in the mode of response, Gerry McCartney said that it is a risk to change from face-to-face to electronic delivery. A percentage of the population will always complete a survey—it does not matter what form it comes to them in—and a percentage probably never will. It is about the people in the middle, and the question is to what extent we have to do more work to persuade them to participate.
Stuart McMillan (Greenock and Inverclyde) (SNP)
Scotland is not the only country that has a census. Do you have any international comparators for the types of question that should or could be asked? I assume that a similar debate will be taking place in other countries.
I am sorry, but I do not know enough about the censuses in other countries to answer that question.
I know that NRS has been working quite closely with the other agencies across the United Kingdom. They have been working together and sharing the research costs of investigating different questions. I suspect that the questions across the censuses in the UK will be quite similar, not only for the purposes of comparison but because the process has been quite similar. I am not sure what is happening beyond the UK.
There are some very large-scale demographic and family surveys around the world, some of which ask fairly detailed questions because there is little other data. I think that the census here needs to sit within the context of very good health data, particularly in Scotland.
In a supplementary submission to the robust evidence that she gave at last week’s meeting, Professor Rosa Freedman wrote:
“The law clearly sets out ... that sex is biological, and that transsexualism (what we would now term transgender) is psychological.”
This morning, we received a submission from Professor Richard Byng, Professor Susan Bewley, Dr Damian Clifford and Dr Margaret McCartney, who said collectively:
“There is little supporting evidence for a genetic or anatomical brain basis for being born in the wrong body, yet this idea now has currency with the public, and it appears they believe it is medically endorsed ... Self-identification could lead to a neglect of the proper, formal exploration of the wider reasons a person may want to transition; these are often unconscious and need time to emerge.”
They go on to say:
“We believe usual standards of evidence should apply (based on the National Institute of Excellence in Health and Social Care) so that interventions improve mortality or quality of life.”
Can you comment on the views in those submissions? How do you feel about them?
Lucy Hunter Blackburn
In terms of their relevance to the bill—
The submissions are relevant to the bill, because they are saying that, if we do not get proper, accurate information about the individuals concerned, we may make the wrong decisions in relation to interventions.
You said—and Professor Jackie Cassell agreed—that the numbers are small, so you do not believe that the issue would have any impact on how we look at interventions. However, you also said that the number of people who are reporting as transgender is increasing rapidly. I wonder whether, in fact, there is something in what the professors and doctors are saying in those submissions.
Lucy Hunter Blackburn
Rosa Freedman was particularly interested in the legal definition of sex. That takes us back to the question of whether you are looking at birth certificates, and, if so, which ones. That is a relatively narrow point, whereas there is a broader question about trans identity. We keep coming back to the same point, which is that it is a varied group. We need to get the right bank of questions, including a question about a person’s unambiguous sex status—whether it is attested by one type of birth certificate or another—and, on top of that, questions that measure all the other dimensions of how people identify themselves.
That bank of questions will give the sort of information that is wanted and needed. It is about the layers of information that we collect and not neglecting any one of those layers, because we are dealing with a fast-moving and shifting issue. We cannot even be sure how the language and terminology that we are currently using will play out by 2021. When you put that contribution together with Professor Freedman’s, you can see that you need to be very clear about separating the different types of information that you are collecting. That goes back to the point, which we have discussed a few times, about the clarity of the sex question and the nature of the supplementary questions that will do the best job for this particular community.
That is within the constraints of a census that is not designed to give a comprehensive account of people in detail.
One of the comments that you have relayed to us relates to the evidence base for interventions. I reiterate that the census data will not be used to plan services for individual people; the best source of that information remains within the health service. In a sense, that is an irrelevant comment in relation to the census, because, even if we get the questions perfect on trans status, biological sex and all the different aspects that have been discussed this morning, the data will tell you very little about what individuals need from health services.
You said that earlier, and everyone has taken that on board. I certainly have. I am just trying to give you the perspective of those individuals, who feel that overall medical services may not be designed appropriately if we are not asking the right questions in the census. They are looking for questions that are sex specific rather than to do with gender identification, because they feel that, if you design services on a collective basis, not an individual basis, you might not get it quite right.
The more clarity that we can get in the set of questions and the more clearly we can interpret the data, the better. However, that will only ever be part of the battery of evidence that is available to us.
I agree with Gerry McCartney. The more clarity we have, the better. However, the census is not a survey, so there are limitations on what you can include in terms of people’s background characteristics. The census is intended to be a broad description of the characteristics of the population, which we can then link to other data sets such as the health data sets that Gerry McCartney talked about. The sex question is only one of a number of questions that are used to link those data sets, but having sex in the data is very, very important.
The other supplementary information that we collect around gender identity is important for a broad range of reasons, not just for looking at health service patterns. It would not be used to plan health services, but it would be used to identify, for example, whether people from the trans community take up services to the extent that people from the cis community do or whether people are discriminated against within certain services, such as the criminal justice system. By linking together lots of administrative data sets, we can test all those things.
I agree with a lot of what the panel members are saying. Is it possible that there could be an opportunity to identify where there are clusters? For example, people with certain characteristics may be identified as being in a certain geographic location, so that in one area—let us say Edinburgh—there may be a requirement for specific services, whereas in other areas there might not be.
That is true to an extent. It is easier to imagine that in relation to age. If you have a more elderly population in your constituency, you will know that dementia services need to be more advanced in one area than in another. The same may be true in relation to other characteristics.
Let us return to the important point that Lucy Hunter Blackburn raised about Tim Hopkins’s argument that it is important for the Scottish Government to bear in mind the privacy of people with a gender recognition certificate. Wherever the lawyers seem to be in the debate, there is an understanding that a GRC confers legal sex, but Professor McVie suggested that the issue would not affect the data much. I believe that only 5,000 people across the UK have a GRC, which is a small number, so I understand that point. However, you will be aware that there are moves to change the way in which people obtain a GRC. It has been suggested that, in Scotland or in the UK as a whole, there may be a means of self-identification. Therefore, by the time that we have the census in 2021, people might well be able to self-identify and get a GRC.
The late submission from the clinicians Byng, Bewley, Clifford and McCartney, which has been referred to, says:
“The number of individuals requesting medical assistance for gender uncertainty or dysphoria is rising and the demographic trend is rapidly changing.”
If, by 2021, many more people can self-identify and obtain a GRC, will that affect the data?
Again, it comes down to being clear about what we want to measure. It will affect the data to an extent, because, if legal status is broadened out in that way, we will still be conflating two things: biological sex and legal sex status. From a research point of view, if there are registers of people who have gone through the process, we could connect that data to the census and control for it in doing research. The problem will be if people self-define and the status is much broader and we do not have any measure of how many people are in that community.
Whatever the process is, as long as it is understood, it can be taken into account, although perhaps not perfectly. However, if we do not know what the process is—which is likely to be the case if one simply adds a trans question—that is fine, but we will not know what that represents. If we know what the process is, it will not matter to an extent, because we will know what we are measuring. You might then make different choices, next time round, about what else you need.
Will we know what we are measuring? If somebody had a GRC and they just ticked the male or female box, how would we know that they had a GRC?
We would know at a population level. That goes back to the point that the census is not used to deliver services at an individual level. If we know how many people have gone through the process, their age characteristics and what that process consists of—
But we would not be asking about that in the census.
No, but we would know that a certain number of people had gone through that process, which would allow us to deal with the data in slightly different ways. It is when we do not know how people came to have that characteristic that interpretation of the data becomes problematic.
Lucy Hunter Blackburn
There is a difference between where we were in 2011, when we had no purchase at all on how people departed from biological sex—we have nothing that we can check that against, unless we can work back from a later census—and a situation in which we know that X thousand people have a GRC, so we know that a certain number of people will say that their birth certificate now says that they are male and a certain number will say that they are female, which allows us to make a good-quality estimation of the impact on the total data of changes in birth certificates.
In using the census, we often bring characteristics together, which is where it gets a bit more problematic or complicated. I am interested in the relationship between education level, earnings and sex. We can clearly measure how that relationship varies over time. If there is a concentration of people changing their birth certificate in a particular subpopulation, we have to start imputing—to use the word that Susan McVie used—quite hard. We have to start guessing backwards a bit by individual case.
That is not ideal, but it is better than pure self-identification, which has no reference point outside itself. At the moment, we can say with real confidence that the scale of GRC holding is so small that we would not worry about trying to impute anything. If a legal change was brought into force in time for the 2021 census—if people follow the process that has been proposed, it would be very quick—it is feasible that thousands of people would take advantage of that to change their birth certificate before the census, which could have an impact in 2021. However, I would worry much less about that than about staying with what was used in 2011, the effect of which is much less manageable or able to be estimated.10:15
It is about known unknowns and unknown unknowns. People are registered somewhere. If the definition is their legal sex and they are registered somewhere, that is a known unknown. We do not know from the census whether they are on the register, but we can know that information from elsewhere. We can link those data sets together. We could link the census data to the register data, if that was made available for linkage, which is happening increasingly. We now have the vast majority of the health data, crime data and education data, and we hope to have Department for Work and Pensions data shortly. Increasingly, we are linking all the public sector data so that we have a better understanding of how everything links together, which is seen as standard in the Nordic countries.
The problem arises when we have unknown unknowns. For example, the trans community is not defined in any way, so we do not know who belongs to it. We have a vague and ambiguous question in the census and we do not know the extent of that population from elsewhere, so we have no way of estimating the scale of any problem of bias, discrimination or inequality.
You seem to be as one on that point. However, the explanatory notes for the bill say that the Scottish Government already conflates sex and gender. Furthermore, although we have not had many submissions from public authorities, from those we received it was clear that at least one authority did not understand the protected characteristics or the difference between sex and gender. Even the equality impact assessment for the bill conflates sex and gender reassignment. There is a lack of clarity on the issue right across the Government and public authorities, which you are saying is an unknown and therefore a problem for the gathering of data.
I believe that Professor McVie is on the board for official statistics. Are you concerned about that creep in attitudes in relation to the gathering of statistics?
Yes, absolutely. We know that many administrative data sets do not necessarily use the same definitions, which is why it is important to get it right in the census. The census could be an important model for all our other public sector data sets, which we should harmonise on those questions. If we do not and those things are conflated, there are issues with the Equality Act 2010.
Over time, there has been a fudge, and this is the point at which to do something about it. Through its work on the census, NRS could shine a light for all organisations. Having said that, it is important to recognise that many administrative data sets that are used by public sector organisations are not collected as measures of the population but as management tools that enable the organisations to do a good job. It is not always important that they make a clear distinction between sex and gender identity, because their purpose is to deliver a service to individuals. However, when people are talking about sex and gender identity, they should be clear that those are two very different things. As a society, we have not been good at defining them. People have had a problem with using the word “sex” to define biological sex, because it is connected to forms of behaviour. Therefore, as a society, we have been lazy and have tended to use the word “gender” when we mean “sex”.
We see that in the documents all the time. They switch from one word to the other.
The committee has given the bill a fair level of scrutiny. What do you think about how NRS consulted on this and the previous census, the guidance for which many panel members have suggested was problematic? I was struck by Susan McVie saying that, as a body, you were not consulted on the 2011 census. There seems to be a feeling that the 2011 question on sex was included with little discussion—is that correct?
I was not part of the group that was or was not consulted. My point about 2011 was about the design of the question.
Who did NRS discuss the design of the question with? Is its consultation process broad enough to collect sufficient views before it makes decisions on those areas?
Lucy Hunter Blackburn
One of the issues with the 2011 census is that we do not know what process went on in the construction of the guidance—the issue is not the question but the guidance on it. Nothing has been said, and I do not know what was done. Perhaps the committee could explore with NRS what the process was in 2011 that led it to make quite a major change in the conceptualising of sex. It does not seem to have been subject to parliamentary or any other scrutiny outside NRS.
On the current process, the topic report is a fascinating read and has lots of great information about the cognitive and quantitative testing of questions. However, it left me, as a reader, with a lot of questions about how, at the decision stage, one decision was taken and another was not. On page 3 of the topic report, there is a strong statement about the importance of sex as a marker in the Equality Act 2010 and elsewhere, but, almost immediately, it says that NRS wants to interpret sex as self-identification. There is a jump from one to the other that is not explained in the document or the policy memorandum.
I had similar questions as I went through the topic report. For example, if it was strongly felt that people must be given a chance to not provide their sex details—as it was too distressing for some respondents to provide their birth certificate sex—why not offer a prefer-not-to-say answer? Why move to a third sex option? One of the trans respondents whose comments were taken up said that there could be a non-response. Reading the process behind it, I struggled a bit to understand why, at various forks in the road, one fork was taken and not another.
Underlying that is the question of why NRS seems to be taking quite a strong view in principle that sex should be regarded as a self-identification issue, and I did not find a clear explanation for that. How far that can be explained by who NRS spoke to or by the process is something that the committee would need to explore directly with NRS.
Following on from that, if NRS was to change its approach to working with a wider set of people, would you be willing to work with it?
Lucy Hunter Blackburn
Yes, as part of the user community.
Okay. We will pass that message on.
As there are no further questions, I thank our witnesses for coming along to give evidence. It has been very helpful.10:23 Meeting continued in private until 10:48.
13 December 2018
6 December 2018
13 December 2018
What is secondary legislation?
Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:
- bring a section or sections of a law that’s already been passed, into force
- give details of how a law will be applied
- make changes to the law without a new Act having to be passed
An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).
Debate on the Bill
A debate for MSPs to discuss what the Bill aims to do and how it'll do it.
Stage 1 debate transcript
The Deputy Presiding Officer (Linda Fabiani)
The next item of business is a debate on motion S5M-16038, in the name of Fiona Hyslop, on the Census Amendment (Scotland) Bill. I call Fiona Hyslop to speak to and move the motion.15:21
The Cabinet Secretary for Culture, Tourism and External Affairs (Fiona Hyslop)
I am very pleased to open this stage 1 debate on the Census (Amendment) (Scotland) Bill.
I am looking forward to what I know will be an interesting debate. The Culture, Tourism, Europe and External Affairs Committee’s consideration of the bill through stage 1 has been comprehensive. The evidence from stakeholders has been excellent and has provided varying views on very sensitive matters. I am grateful to everyone who has contributed thus far to the bill. Today is another step on its journey.
Before I talk about the bill, I will take a moment to speak more generally about the census. Scotland’s next census will be taken on Sunday 21 March 2021, subject to approval by the Scottish Parliament. It will be the 22nd census to take place and the 17th to be managed independently in Scotland. In 2021 it will also be, for the first time, conducted predominantly online.
Our country has relied on the census for more than 200 years and is the only survey of its kind to ask everyone in Scotland the same questions at the same time. No other survey provides the richness and range of information that the census provides.
The key aspects of the census are that it counts people, that it has to be credible, that people must have confidence in it, and that it must be consistent with comparators. The census tells us who we are and how we live and work in Scotland. In telling that story, the census cannot lead society—it should reflect the society in which we live. We are very proud of the richness of the data that we hold and the consistency of approach that we can demonstrate over 200 years.
The purpose of the bill is to amend the Census Act 1920 in order to allow questions on sexual orientation and prescribed aspects of gender identity—those being of transgender status and history—to be answered on a voluntary basis. The power to ask those questions for answer on a compulsory basis already exists in the 1920 act, but refusing to answer a census question or neglecting to do so is an offence under section 8 of the act, and we want to avoid that for individuals who will answer the new questions. I recognise that they are important but highly personal matters. It is crucial that nobody is, or feels in any way, compelled to answer those important but sensitive questions. Therefore, the bill seeks to mitigate any concerns about intrusion into private life by placing the questions on a voluntary basis, as was done with religion when it was included for the first time in the 2001 census.
I am pleased that the Culture, Tourism, Europe and External Affairs Committee has supported the general principles of the bill.
I wish to stress that the specific census questions are a work in progress. The bill is not about the detail of the questions. The questions that will be set for the 2021 census will be considered as part of the subordinate legislation process, on which engagement with the committee will begin shortly and continue through to next year.
Sexual orientation is already asked about in most Scottish household surveys, and it is proposed that the sexual orientation question for the 2021 census will mirror the question that is already used in other surveys in Scotland and elsewhere in the UK. It is worth noting that a question on sexual orientation was considered for the 2011 census. However, it was not proposed to Parliament because of a lack of public acceptance that the question be asked. Society has changed significantly and rapidly in the 10 years since the last census, so we must ensure that the census in 2021 reflects that. I am therefore happy that the committee recognises that now is the time to ask in the census a question on sexual orientation, to be answered on a voluntary basis.
I have also confirmed my support for the committee recommendation to consider people’s privacy rights when the form is being completed by the head of the household. National Records of Scotland will take into consideration the committee’s direction on consulting organisations that represent young people, including LGBT Youth Scotland. NRS is developing a system involving completion of an individual form in private, with no one else in the household being aware that it has been requested. That will allow individuals to respond in a private and confidential way.
It is widely recognised that there is limited evidence on the experiences of transgender people in Scotland. There is currently no fully tested question with which to collect information. Therefore, the census will be taking a big step forward to ensure that we can develop the evidence that is needed to provide support and protection to Scotland’s transgender population.
The committee highlighted that the current drafting of the bill, particularly in respect of how the term “gender identity” has been used, might give the impression that sex and gender identity are being conflated. The intention behind the bill has never been to conflate sex and gender identity. The committee recommends, and I agree with it, that an amendment is required at stage 2. It supports an amendment that has been proposed by the Equality Network to address the issue. I have confirmed to the committee that we will work with it, the Equality Network and other stakeholders to deliver a solution that commands broad support while providing the degree of flexibility that NRS needs to develop the census questions. Work has already begun on the precise form that the amendment might take. Our and the Equality Network’s current thinking do not seem to be very far apart. I am very pleased that the committee supports the inclusion of the trans status question, which will be answered voluntarily.
A question on sex, asking whether someone is male or female, has been asked in the census since it began in 1801. As part of planning for 2021, NRS has been considering whether that question should include other options. I am aware that there are strong, and often very opposed, views on whether a question on sex should be binary, non-binary, relate to birth certificates or legal sex, or be more focused on self-identification. That has been evident from the evidence in the stage 1 submissions on the bill.
I note that the committee has recommended that the sex question remain binary for 2021. As I said a few moments ago, the wording of the questions will be agreed as part of the subordinate legislation process. However, I note the committee’s clear direction on what it considers is appropriate for the sex question. That will be taken into account as NRS works towards preparation of the subordinate legislation, which will be considered by the committee and Parliament in due course.
NRS is committed to an on-going programme of testing of the question, and it is currently engaging with stakeholders, including those that have given evidence to the committee, in order to understand their needs and concerns. NRS will work closely with the committee over the coming months on that specific question, as well as sharing the proposed full question set and any additional evidence and stakeholder views for consideration before the formal legislative process.
I recognise that the committee considered that it was regrettable that intersex was referred to incorrectly as coming within the umbrella term “trans” in the policy memorandum to the bill, which was unfortunate. In response to the committee’s recommendation that all guidance for 2021 makes it clear that intersex does not fall within trans, NRS will develop guidance in consultation with stakeholders to ensure that the language and terminology are acceptable.
The Government has noted the written evidence from dsdfamilies and it accepts the recommendation in paragraph 119 of the committee’s report. The Government intends later this year to carry out a consultation separate from its census work, which will cover a range of issues, including how to improve information and services for intersex children, children who have variations in sex characteristics and their families.
I recognise that the committee has expressed concern about the lack of engagement with a range of groups and individuals. NRS carried out a public consultation between 8 October 2015 and 15 January 2016 in an effort to understand what information users need from the census in 2021. It is recognised that not all groups were aware of or responded to the public consultation, and the committee made specific reference to women’s groups. No women’s groups responded to the public consultation; indeed, some might well not have been established at the time of the early consultation stage.
However, NRS is now actively engaging with the women’s groups that responded to the committee’s call for evidence, and several helpful and constructive meetings took place in January. As I said to the committee, it is of critical importance that NRS continues to engage with individuals and groups that have an interest in the census. The committee’s work has been very useful in highlighting the census to the groups that have been engaged with so far. Work with stakeholders, including those women’s groups, will continue as part of the question development process. The committee will be fully updated on the NRS’s consultation and progress with the women’s groups prior to any consideration of a draft census order.
The committee made a specific request for details of any consultations that had been held with groups representing intersex people, and it recommended that a specific consultation be held. I have confirmed that NRS did not meet organisations representing intersex people prior to 5 December 2018, but it was aware of meetings that other teams within the Scottish Government were having. However, NRS had a helpful meeting with dsdfamilies in January and is committed to engaging with that organisation and other organisations and experts in the future, so that their views are taken into account. It should be noted that NRS has never intended to have a question or a response option identifying intersex people.
I turn to languages. The committee recommended that consideration be given to the evidence that it received with regard to the language question for the 2021 census. I accepted that recommendation, and the information that the committee received will contribute to the on-going process of user consultation and question testing. However, although some need was identified for data on multilingualism, the aim of the main language question is to identify people for whom English is not their main language, and their level of proficiency in English, in order to support service provision.
I wish to recognise that, in Scotland, we have a strong track record of evidence-based decision making. The census is a key source of high-quality impartial evidence to support those decisions. The matters that we are considering today will allow accurate information to be gathered on important topics in an appropriate way, while recognising individuals’ rights to privacy. I look forward to hearing from Parliament colleagues during the debate.
That the Parliament agrees to the general principles of the Census (Amendment) (Scotland) Bill.
The Deputy Presiding Officer
I call Joan McAlpine to speak on behalf of the Culture, Tourism, Europe and External Affairs Committee.15:33
Joan McAlpine (South Scotland) (SNP)
I welcome the opportunity to speak in the debate as the convener of the Culture, Tourism, Europe and External Affairs Committee and to set out the main findings of our stage 1 report. I thank all those who provided oral and written evidence. The breadth of views gathered and the respectful way in which they were discussed do credit to the committee. I also thank our clerks. This one-page bill has turned out to involve a lot of work, but they have more than risen to the challenge. In addition, I thank committee members for the constructive approach that they took to evaluating the evidence.
The bill seeks to enable questions on gender identity and sexual orientation to be asked in the census for the first time, with responses on a voluntary basis. The committee agreed unanimously that that should be done. During the committee’s scrutiny of the bill, we heard that “sexual orientation” is a well-understood term, but that “gender identity” has no defined meaning in law. In responding to the evidence received by the committee, NRS explained that it would reconsider the terminology that is used in the bill, including whether to replace the term “gender identity” with “trans status”.
Stonewall and the Scottish trans alliance, which advise the Scottish Government, informed the committee that they define transgender as including all the identities that are encompassed under the trans umbrella. The trans umbrella is very broad and encompasses people who have chosen to undergo physical changes and those who have undergone no physical changes but who have a trans identity. To be clear, the trans umbrella includes
“transgender, transsexual, gender-queer ... gender-fluid, non-binary, gender-variant, crossdresser, genderless, agender, nongender, third gender, two-spirit, bi-gender, trans man, trans woman, trans masculine”
It should be noted that the bill does not address how to frame questions on trans status or trans history in the 2021 census. Parliament will consider that issue, along with other census questions, in secondary legislation that is to come. The committee agreed that such questions would be beneficial to lesbian, gay, bisexual and transgender people, as they would allow Government to better meet their needs.
The committee agreed that, given the sensitivity of the questions, no one should be compelled to answer questions on trans status, trans history or sexual orientation—that must be voluntary. We agreed with LGBT Youth Scotland that young people’s privacy must be protected when the form is completed by the head of the household, and I note what the cabinet secretary said in that regard.
Although the committee supports the bill’s general principles, we have concerns about its drafting. The bill proposes to make changes to the schedule to the Census Act 1920 by inserting the words “including gender identity” after the word “sex” in paragraph 1. The danger is that that appears to conflate two different things.
Sex is a protected characteristic under the Equality Act 2010, whereas the committee heard that gender identity has no defined meaning in law. Gender reassignment is also a protected characteristic under the act, but it is distinct from the protected characteristic of sex.
The sex-based protections in the 2010 act are particularly relevant for women and girls, as they are based on birth sex. For example, the act allows for single-sex services and occupations when that is a proportionate means of protecting the safety, privacy and dignity of females. Some witnesses argued that those protections would be compromised if sex was perceived to be conflated with gender identity. Others disagreed, stating that the act also protects those with gender reassignment.
Accordingly, the committee welcomes the Equality Network’s proposal, which is to remove the words “including gender identity” from the bill, leaving paragraph 1 of the schedule to the 1920 act unchanged. “Trans status/history” would then be added as a category on the same basis as that proposed for “sexual orientation”. That suggestion reflects the committee’s thinking. We note that the cabinet secretary has agreed that amendments are needed and welcome her commitment to lodge an amendment at stage 2. I would welcome clarification from the cabinet secretary in her closing speech that her amendment will have the effect of removing any linkage to the sex question.
The problems with that aspect of the bill seem to be due to the fact that the consultation focused on only a very small number of stakeholders and did not include women’s groups or census data users. In “Scotland’s Census 2021—Sex and Gender Identity Topic Report”, the NRS initially seemed to understand the importance of sex.
Maurice Corry (West Scotland) (Con)
Will the member take an intervention?
I am sorry, but I cannot, because I am speaking for the committee.
The topic report says:
“Sex ... is a vital input to population, household and other demographic statistics which are used by central and local government to inform resource allocation, target investment, and carry out service planning and delivery.”
The report goes on to say that sex is a protected characteristic, as set out in the 2010 act, and that the data are widely used to inform equality impact assessments.
However, NRS changed the mandatory sex question in 2011 to allow respondents to self-identify as male or female. The change was not mentioned on the census form and appeared only in online guidance.
NRS proposes to continue that approach in 2021 and is considering whether to make the sex question non-binary for the first time—that is, to offer a third option in addition to male and female. For clarity, that is not to be confused with the trans status/history question, but would be a change to the sex question, which has been male/female since 1801.
Some witnesses have suggested that that risks undermining the effectiveness of the data collected. They include Professor Susan McVie OBE, who is co-director of the administrative data research centre in Scotland and a member of the board for official statistics in Scotland. The board advises the Scottish Government, but it was not consulted on the census.
Professor McVie suggested that
“the General Register Office for Scotland got it wrong when it redefined the sex question”
to include self-identified gender in 2011. She told us:
“From a research point of view, we know that certain conditions—medical conditions, for example—are sex related”,
“of a person’s gender identity”.—[Official Report, Culture, Tourism, Europe and External Affairs Committee, 13 December 2018; c 4-5.]
That position was supported by some clinicians, independent women’s groups, academics and individual women who submitted evidence.
Others stated that it would be distressing for transgender people, including those who identify as non-binary, to answer a question according to their biological sex. They included Scottish trans alliance, Stonewall, individual trans people, gender studies academics and some women’s organisations that advise the Scottish Government, such as Engender.
Significantly, the Office for National Statistics has said that the sex question should remain binary for the 2021 census in England and Wales. Its equality impact assessment for the census states:
“the protected characteristic of sex as defined in the Equality Act 2010 ... is whether a person is a man or a woman. This binary concept of sex is, in turn, fundamental to the Equality Act 2010 definition of sexual orientation and of gender re-assignment, and to the law on marriage and civil partnership and many other matters.”
Our committee agreed, by a majority, that the sex question should remain binary in order to maximise response rates and longitudinal consistency with previous censuses. We unanimously recommended that any guidance on how to answer the sex question—[Interruption.] Excuse me—my Surface has gone strange. We unanimously recommended that any guidance on how to answer the sex question must be clearer and consider the importance of sex as a protected characteristic.
The committee also took evidence from dsdfamilies. The group represents those affected by differences in sexual development, which encompasses about 40 different medical conditions and is sometimes called intersex. It was unhappy with the inclusion of the term “intersex’” as a trans identity in the policy memorandum to the bill; it is an umbrella term that relates to a person’s physical sex development, not their gender identity. Furthermore, dsdfamilies explained that the vast majority of people with a disorder of sex development—DSD—are clearly male or female. It told the committee that, although some reports claim that 1.7 per cent of the population is affected by some kind of DSD, only a tiny number—one in 5,500 babies—require specialist input to determine their sex. Therefore, in the view of dsdfamilies, the term “intersex” can be confusing.
Although we are aware of intersex campaigners who take a different view, it is concerning that a respected organisation such as dsdfamilies, despite being a Scottish charity, was not initially consulted by NRS. We note that the Government now accepts that a mistake was made, and we welcome the commitment to engage with a wider range of stakeholders, including dsdfamilies, in future.
That example illustrates the wider problem with the consultation on the bill. Although transgender campaigners and some established women’s organisations support the bill, a number of female academics, data users, individual campaigners and newly formed independent female rights organisations have concerns about the conflation of sex and gender and the perceived risk to sex-based protections for women and girls. The broadening of public discourse on these issues must inform future consultation on the topic, and the Scottish Government should reach out to the widest possible constituency and carefully consider all the evidence that the committee has gathered.
In conclusion, the committee supports the bill’s general principles and looks forward to fully scrutinising in due course the forthcoming secondary legislation on the 2021 census.15:43
Annie Wells (Glasgow) (Con)
Society’s attitudes have changed, and it is only right for the census to reflect that. The Scottish Conservatives are happy to support the bill and its general principles at stage 1, with a view to submitting amendments at stage 2.
As we have heard, there is a lot of discussion to be had on the wording of the questions. It will be important to discuss that issue in a lot more detail and to address how the census will define, structure and communicate the voluntary questions on sexual orientation and gender identity.
The purpose of the bill is simple: it is to allow National Records of Scotland to alter the census and vary the questions asked in it. As we know, the census is important for many reasons. Completed every 10 years, with the next one in March 2021, it gives us a complete picture of the nation and provides information that is needed by Governments in the UK to develop policy, to plan and run public services and to allocate appropriate funding.
In terms of equality data, the census is extremely useful in providing the basis on which to plan public services. However, it is widely accepted that there are gaps in equality data and that the information is needed so that public authorities can fulfil the public sector equality duty and duly consider the needs of protected groups under the 2010 act.
Although the census covers most equality groups, it has not previously included questions about sexual orientation or gender identity. As social attitudes change and discrimination lessens, it makes sense for the census questions to reflect society’s views.
In 2015, only 18 per cent of people in Scotland expressed the view that sexual relations between two adults of the same sex are always wrong, and only 32 per cent of people said that they would be unhappy for a close relative to marry or form a relationship with someone who has undergone gender reassignment.
The purpose of the bill is to reflect this more open society. It aims to amend the 1920 act so that answering questions on prescribed aspects of gender identity—on trans status and trans history—and on sexual orientation is made voluntary.
It goes without saying that that all needs to be done with care. To ensure data quality, information should not be collected if it is not reliable or if people have difficulties with providing accurate answers. Given the need for individual privacy, it is right that such questions are answered on a voluntary basis, as was done with questions on religion in the 2011 census. Given the sensitivity of the questions, that is the correct approach.
It is reassuring that the development and testing of the census questions will continue, and I am pleased that the inclusion and wording of questions will be subject to the Scottish Parliament’s approval.
Although the inclusion or wording of any such questions is not within the bill’s scope—those matters are left to regulations that will appear in due course—I will comment on those issues, given the interest from third sector organisations on how such questions might be framed and understood.
I note the committee’s concerns about the conflation of sex and gender identity as well as the concern that there was a lack of clarity in—and a lack of awareness of—the online guidance concerning the self-identification approach in 2011.
Although I recognise the valid and strongly held views of stakeholders on the mandatory sex question, I am inclined at this point to agree with the committee recommendation that the mandatory sex question should remain binary. I add that I was not present at the committee’s evidence sessions.
Ahead of 2021, I hope that we will have complete clarity about the approach that will be taken. That is particularly important given the census’s primary purpose—to collect robust data—and the Scottish Government’s obligation to act in accordance with the 2010 act, under which sex is a protected characteristic.
I note the recommendation that
“‘Trans status’ ... be added as a category for census questions on the same basis that is proposed for ‘sexual orientation’.”
As the bill progresses, I hope that further work will be carried out to bring about a consensus of understanding across the chamber on what is meant by “sex” and “gender identity” in the context of those census questions.
Clarity remains key to ensuring that appropriate responses will be given. The Law Society of Scotland has highlighted that that is a necessity for everyone involved when it comes to the questions that are being asked, for the benefit of those answering the questions and those interpreting and using the data.
Key stakeholders need to be aware of the relevant guidelines that will be put in place and must be consulted beforehand so that the guidelines meet all their requirements. It is clear that the wording of the questions is still very much subject to debate.
Although the inclusion of the question on sexual orientation has not prompted any obvious concern, as the cabinet secretary mentioned, it will be important to consider how it may impact young people in particular when the form is being completed by the head of the household. I am pleased that that will be looked at.
I also note the clarification from the cabinet secretary that intersex people will not be included within the term “trans”, recognising that their needs are different, and I welcome the commitment to ensuring that future guidance clarifies that.
I reiterate the Scottish Conservatives’ support for the bill at stage 1. Although the inclusion or wording of any such questions is not within the bill’s scope, it is clear that further work needs to be done. As the development and testing of the census questions continue, I hope to see more clarity in the coming months. There has been a lot of stakeholder interest in the bill; it is vital that we strike a balanced approach that supports the census’s goal of harnessing the most accurate and effective data.
The Deputy Presiding Officer
Claire Baker has a generous six minutes.15:50
Claire Baker (Mid Scotland and Fife) (Lab)
I am pleased to open for Scottish Labour in this stage 1 debate on the Census (Amendment) (Scotland) Bill. I am fortunate enough to be a member of the Culture, Tourism, Europe and External Affairs Committee, which listened to all the evidence and prepared the report that is being discussed. I thank all the organisations and individuals who contacted us with briefings and comments before the debate.
The census has taken place every 10 years since the Census Act 1920 was passed. It is an important exercise in understanding the nature of our population and it informs the work of public bodies in making key decisions about resource allocation, policy development and how services are planned. The census has changed over the years to reflect changes in society and to ensure that the information that is gathered remains relevant. Since 1999, it has been the Parliament’s responsibility to scrutinise the census, particularly when new questions are introduced. Any cabinet secretary might expect the process to be straightforward, and it has perhaps been surprising to see how contentious the framing of questions can be.
The bill is slightly different. It is necessary because, unlike the majority of the questions, which are compulsory in nature, the proposed questions are to be answered on a voluntary basis. There was agreement across the committee and in the evidence that we received that it is appropriate for questions on sexual orientation and transgender status to be answered on a voluntary basis, which is similar to the treatment of questions that are asked about religion. It is important that the overall census completion rate remains high and that people feel comfortable about answering the questions. The bill will also ensure that a non-response to such questions does not lead to a penalty such as would apply to non-responses to other questions. Introducing voluntary questions on the proposed subjects is the bill’s purpose—we should not lose sight of that fact—and Labour will support its general principles today.
The census is designed to reflect society and to keep pace with changing mores and expectations. Currently, there is no reliable data on the size of the transgender population in Scotland, and data on sexual orientation is gathered only from surveys, which can provide only an estimate. More accurate data would enable better planning of appropriate services and greater recognition of the need for services for the groups of people involved, who might be underrepresented and poorly served. The Equality Network and the Scottish trans alliance cautioned that the questions might not lead to an accurate account of the population, as the questions are sensitive and people might not wish to answer them. However, the data will still be valuable, and it should enable a better understanding of the population over the years, as it is collected.
The stage 1 report raises a number of significant issues that the cabinet secretary must reflect on, and I welcome her comments this afternoon. The discussion at stage 1 in committee was dominated by the concern, expressed by some witnesses, that the bill conflates sex and gender as a forerunner to a proposal to change the compulsory sex question in the census. The debate was divisive and it was difficult to achieve consensus, but there was growing agreement that the bill’s drafting is problematic.
Following its evidence session, National Records of Scotland wrote to the committee, stating that
“the intention behind the Census Bill was not to conflate the matters of sex and gender identity”
although the bill’s wording strongly suggests that. NRS also expressed the view that the power to ask questions on the issues already exists. Given that fact, the insertion of the words “(including gender identity)” through section 1 seems redundant and unnecessary. That has led to the conclusion that sex and gender identity are being conflated.
The cabinet secretary argued that the term “gender identity” is being used as a way of future proofing the provisions, that it is understood as a term and that it could be an umbrella term to enable future questions in this area to be introduced. However, I disagree. The evidence that the committee heard made it clear that there is a lack of agreement on the definition of gender identity.
Consideration of the Gender Recognition Act 2004 is on-going, and, although the rights of transgender people are being debated and consideration is being given to the recognition of those of no gender, the public debate about the issues is being conflated with the discussion about the bill. In those circumstances, it is not appropriate to use a catch-all term for any future questions. Future questions should be specified and scrutinised by Parliament, and this short bill must be amended to make that clear.
A proposed change to the binary sex question has been the key area of debate, although it is not part of the bill. It is regrettable that the committee could not achieve consensus in its stage 1 report—even more so given that the division related to something that is not in the legislation. As a member of the committee who abstained, I asked myself what the vote would have achieved at that stage, when the debate and evidence were divisive as well as contradictory and when consensus was lacking.
The Government needs to decide whether to produce a census order that would change the sex question, at which point the Parliament would consider the question and the evidence in detail and make a decision. I am concerned that holding a vote on the matter at stage 1 was pre-emptive and that the Government’s response to the stage 1 report lacks clarity. However, the vote gave the cabinet secretary a clear indication of the majority view of the committee.
The stage 1 report is also critical of the consultation. I do not believe that it was the intention of National Records of Scotland to exclude anyone—or any group—from involvement; I got the impression that it just completely failed to see that there may be a debate and that there may be more than one point of view on the sex question. I welcome the fact that wider consultation is now being undertaken.
We support the general principles of the bill, but we agree with the committee that it needs to be amended significantly to clarify its intention. The Scottish Government must seriously reflect on the wider discussion that took place in considering any further changes.15:56
Ross Greer (West Scotland) (Green)
The bill might be very short, but it is an important piece of legislation and I am happy to support its principles at stage 1, as are the Greens.
The bill’s purpose is to ensure that everyone feels able to accurately complete the census. It allows questions about sexuality and trans status—or, as has been covered, gender identity—to be asked appropriately as voluntary rather than mandatory questions. Although we have made immense progress as a society, we are still not free of bigotry. We are still a society in which some people feel that they need to hide parts of their identity and lived reality. We must respect that, which is why I welcome the cabinet secretary’s comments—particularly those with regard to young people.
It would be inappropriate to compel someone to answer a question on something as intensely personal as their sexuality or their trans status. At the same time, however, the opportunity to collect that data from people who are happy to provide it is an opportunity to meet the needs of those who can, too often, go unnoticed and unsupported. What is proposed is a small change to something that happens once a decade, but it is part of a process to ensure that people’s identities are respected, particularly when they engage with public services. There is a contrast between the size of the bill—it is a single page—and the significance of the census and the effect that it has.
The committee received submissions in support of the bill and the principle of trans inclusion from many national and long-standing equality organisations including the Equality Network, the Scottish trans alliance, Stonewall Scotland, Engender, Rape Crisis Scotland, Scottish Women’s Aid, Close the Gap and Equate Scotland. I thank them all, particularly for their supplementary evidence as the debate very quickly evolved into areas that we were not necessarily expecting.
I know that I am not the only one to have been, at times, frustrated and disappointed by the stage 1 process and by what I see—Claire Baker also mentioned it—as the digression of the debate into matters that are outwith the scope of the bill. At times, the validity and existence of trans and non-binary people were called into question, and I know the upset and anxiety that that caused many vulnerable people, some of whom have been in touch with me throughout the process.
What should have been a small, technical change to the Census Act 1920 to ensure appropriate wording became, instead, a much wider equalities debate that we were not prepared for. It became a debate about trans inclusion and whether trans-inclusion measures impact on the rights of cisgender women. It saddens me that we took oral evidence from only one trans person. That would have been adequate for what we thought, at the start, was a relatively technical process on a technical bill, but it was not adequate for the much wider equalities debate that evolved.
Although much of the debate centred around whether trans-inclusion measures undermine the rights of cis women, we did not invite any of the long-standing national women’s organisations to give evidence at the committee. Nevertheless, I appreciated their collective written submissions—particularly, as I said, the latter ones as the debate evolved. As I have stated, those women’s organisations are supportive of the bill. They also have decades of experience of trans inclusion. I wish that that had been reflected more in our stage 1 report.
Legitimate concerns that should be addressed were raised in the broader debate on the introduction of trans-inclusion measures. How trans-inclusion measures intersect with services for women, particularly women-only spaces, is one such concern. Scottish Women’s Aid and Rape Crisis Scotland have highlighted that their experience of providing support services in a trans-inclusive manner for women who have experienced violence has given them a huge amount of evidence, which they can contribute to the debate. Their letter to the committee stated:
“It is very clear to us that trans inclusion in our own organisations has not given rise to substantive concerns or challenges. Rather, trans women have added to our movements through their support, voluntary work and as staff members”.
Some questions that were raised—particularly those regarding data reliability and comparability—were very much within the scope of the bill. It was suggested that questions that were completed on the basis of self-identification, which was existing practice in the 2011 census, and the inclusion of a third option in the sex question, which would be a change, would harm the overall dataset and, in turn, affect the planning of sex-based services, for example. Some of those fears are misplaced. I point, in particular, to the submission from the head of engagement for NHS National Services Scotland, which is the body that oversees the patient information database. The national health service uses its own data, rather than the census data, in service planning, and it already collects patient data on the basis of self-identification without issue. The coalition of national women’s organisations, which has extensive experience of that type of data, also stated that collecting that information in a trans-inclusive fashion would be beneficial.
I dissented from the committee’s conclusion in favour of a binary sex question. Like the respected women’s and equalities organisations that I have mentioned, I support a third option whose inclusion would allow more people to complete the census. As the NRS found, it would increase response rates, despite reports to the contrary. It would allow us to gather valuable data on a small and vulnerable group about whom we cannot practically gather such information in any other way. Further, it would not negatively affect anyone else. For all other purposes, that tiny number of people would be randomly redistributed into the male and female categories. Why should we not make a change that would positively benefit a small and vulnerable group at no cost?
As the legislative process moves forward, I hope that all members take the opportunity to listen to those whose lives and identities we are discussing. One role of this Parliament should be to lift up the voices of Scotland’s most marginalised. The bill is an opportunity to do just that, which is why I support its principles.16:01
Alex Cole-Hamilton (Edinburgh Western) (LD)
I am grateful to the committee for its work on the bill. I do not sit on the committee, but I have been keeping abreast of the developments on the bill from afar.
We live in more enlightened times—a fact that was brought home to me two weeks ago, when our seven-year-old son Kit came to me and said, “Dad, what is trans?” I scratched my head about that, but he is an inquisitive and mature boy, so I asked him if he remembered the family from Australia who had visited us in the summer with their little boy Hamish, who was Kit’s age. I asked whether he had noticed that Hamish always wore girls’ clothes. He said that he recognised that, and I explained that, although Hamish was born a little boy, he felt more like a little girl, which is what trans is. Kit stopped and said, “Oh my God! Do you mean to tell me that Hamish is from Australia?” I like to think that that level of acceptance is felt right across the board, wholesale, by our children and young people—the new generation. We should reflect that enlightenment in public policy, which is where this debate stems from.
As Ross Greer articulated, a tension exists between cisgender women and the intersectionality of the trans community. I have been dismayed by some of the arguments in that debate, which have been characterised by hyperbole at times. At its most extreme, there was the suggestion that the advancement of trans rights represents a threat to public safety, which is reminiscent of arguments that were used against gay men in the 1980s. Such arguments are as inaccurate today as they were then.
For my party, the bill stems from first principles. Trans men are men, trans women are women and non-binary is valid. How we reflect that in the conduct of public policy matters, and how we see and count those people is incredibly important in furthering their rights and their inclusion in our society.
It is clear where the fault lines in the debate lie. In 2011, for the first time, the guidance offered people the option to fill in the mandatory sex question irrespective of the details on their birth certificate. For the trans community, that represented a significant breakthrough, and I have sympathy with Stonewall’s concern that changing the guidance and removing that latitude would be a retrograde step. Many people found the 2011 census liberating. They were no longer anchored to their birth identity and to all the trauma that they had been through in the process of shedding their connection to that. Finally, society could understand and include them for who they were.
If there is a need to collect empirical evidence at birth, the Government needs to be clear about how it will square that circle. I ask the Government to work further with Stonewall and the Equality Network to find a way to address that empirical need without rowing back against the tide of the advancement of trans rights and inclusion.
I recognise the arguments about the importance of not having a mandatory binary sex question. That is important for people who do not define as male or female and for people who were born intersex, who would struggle to answer a mandatory binary question. Perhaps we will consider that issue as we go forward.
As I have said, our trans community deserves to be seen and to be counted. Being seen and being counted are the first steps to people having their rights realised, whoever they are in our society. That happened when women got the vote and when homosexuality was made legal. The people in those marginalised communities were recognised as full citizens and for who they were. The bill concerns the way in which we count our population in the census, which is a fundamental cornerstone in the advancement of equality in this nation.
The Deputy Presiding Officer (Christine Grahame)
There is time in hand, so I can give all members who speak in the open debate five minutes. I call Stewart Stevenson—I do not think that he will have any problem with that.16:06
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
Thank you, Presiding Officer. Some invitations are more welcome than others, and that is one of them.
I have not been part of the consideration of the bill until now. I am a data user of censuses, but I am also a user of censuses. In other words, my interest in genealogy means that I read a census every week, but the censuses that I read are all 100 years old. That is of some, limited interest to today’s debate.
The Scottish Parliament information centre tells us:
“The information on equality groups in the Census can be used to monitor discrimination and to plan public services.”
That is, of course, correct, but during the debate we need to bear in mind that the census is a statistical survey. It is not about identifying the responses and needs of individuals; it is about identifying the needs of communities—often quite small communities—to ensure that public services are provided appropriately.
SPICe also says:
“The information collected must be ‘authoritative, accurate and comparable’ for all parts of Scotland”.
There is a difficulty in that description of what we are trying to do. The information should certainly be authoritative, it should perhaps be accurate and it should almost certainly be comparable. Retaining the question on whether someone’s birth identity is male or female helps with comparability, but we must remember that, at birth, the parent registers the birth and the gender of the infant.
I have an example from exactly 150 years ago. A child called Keith—I will not use the second name, because there will be living descendants—was registered, as we would expect, as a male, but in the census three years later and in every subsequent census, Keith was shown as female. In 1905, Keith married a man and gave birth to children. An error was probably made in 1869, when Keith was born. When someone dies, there needs to be medical information on their death certificate, but there is no medical requirement to provide information about gender to someone who is registering a birth. Therefore, there are some difficulties with the authoritative aspect of the census information. As the example that I have given shows, it is possible for someone to have something on their birth certificate and to put something else on the census. There has always been that possibility.
Who fills out the census? In broad terms, it is the head of the household. I welcome the indication that there will be a way for individuals to provide information that they might not want to share with the head of the household at that point. However, the question is voluntary, so we will not get the information from everybody for whom there might be a particular answer, and we will not necessarily get an answer from people who do not choose to use the separate system that allows them to respond individually.
That opens up a much broader question—for which I have no direct answer—of how, statistically, we can rely on information from a self-selected group, using a self-selected description. It is possible to deal with that, but I hope that the National Records of Scotland finds out, perhaps through sampling, how the answers that we get represent the underlying reality, because the statistics that come from the census are important for the planning of services.
Voluntary questions were introduced in the 1891 census, when for the first time there was a question about whether someone spoke Gaelic, which they did not have to answer. There is nothing new about a voluntary question, and we can do that in the bill, as we did then.
I trust my colleagues as we take the bill forward—I will not be playing any part in it. It is important that there is a clear distinction between physical sex and how people wish to be recognised and treated. The human right in our society to be able to choose how one is treated goes to the heart of this debate, and I very much welcome the fact that a tiny legal provision—it is really only a couple of lines in a very small bill—will leverage big consequences for quite a lot of people in our society. It is right and proper that we take this forward in the way that we are planning to and that we continue to engage to make sure that the questions that we ask give us answers that, statistically, help us to respond to a wide range of diverse needs that we did not recognise and certainly did not talk about in the past.16:11
Jamie Halcro Johnston (Highlands and Islands) (Con)
I apologise for having to leave the chamber briefly during the opening speeches.
At a length of one side of A4 paper, this is certainly one of the shortest bills that I have been invited to speak on in the chamber. However, within the bill’s short sections, there are a number of sensitive issues that merit discussion today. The bill touches on matters of individual identity and how they relate not only to the public being engaged with the census but to the eventual users of the data that it brings together.
There are questions of approach here. The evidence that was presented to the Culture, Tourism, Europe and External Affairs Committee shows that the bill remains controversial. I express my thanks to the committee, its clerking team and those who gave evidence for producing such a comprehensive stage 1 report.
One key objective of the bill, on which there seems to be wide agreement, is to make additional questions voluntary. As with sexual orientation, it is clear that a number of people will not feel comfortable disclosing details of a certain nature.
On the proposals for additional areas of questioning, the National Records of Scotland indicated its view in a letter to the committee that the power to ask questions on gender identity already exists and is covered by the Census Act 1920. The precise wording will be considered later. A stage 1 debate is not the place to thrash out the substance of such questions in any great detail. Indeed, it has been suggested that the bill is perhaps not the appropriate place either. We can, however, look at the basis for proposing such questions and for, in essence, expanding the scope of the census further into areas of gender identity and sexual orientation.
The census has a long history in the United Kingdom, having been conducted every 10 years since 1801, barring 1941, when we were in the midst of the second world war. We can look back even further into the past to see much earlier historical precedents. John Rickman, the statistician most responsible for the first modern census, pointed out that
“the intimate knowledge of any country must form the rational basis of legislation”.
Every administration in our history has valued accurate data on its population.
Today, questions on sex, gender and identity significantly provide an understanding of groupings within society and can protect against discrimination. The nature of how those questions are asked has undoubtedly been the key area of interest for those responding to the committee in written submissions. Many of those submissions are detailed and well considered, but they present very different viewpoints. A message that comes through is that, as the bill progresses, we are going to have to consider and tackle some of those core issues. A thread that connects those differing viewpoints is questions about clarity and accuracy of data that must be answered.
The committee has recognised the shortcomings in the most recent census. Supporting guidance indicated how transgender people could answer questions about sex, but that was published only online and was not part of the census form. There seems to have been a very real capacity for confusion and it is right that the committee calls for “absolute clarity” in the approach ahead of 2021. Where voluntary questions are ill conceived, there is also the potential for lower response levels.
As we approach the bill, we should recognise that there are strong, honestly held, competing views about parts of it. It is likely that they will garner the largest share of public attention and commentary.
One area where we can join together is to insist that there are plans in place to ensure that questions are statistically useful, that they are clear to respondents and that we take a consistent and rational approach to implementing voluntary questions.
I have little doubt that there will be further discussion in relation to the questions that the bill enables and I hope that an approach can be found that respects the views of all those who are involved.16:15
Kenneth Gibson (Cunninghame North) (SNP)
As a member of the Culture, Tourism, Europe and External Affairs Committee, I am pleased to speak in today’s debate.
One might wonder at the amount of evidence that has been taken in respect of a one-page bill. However, that is because the consultation threw up important questions around sex and gender identity, as we have heard this afternoon.
The bill’s purpose is straightforward: to make answering census questions about prescribed aspects of gender identity and sexual orientation voluntary. Given the sensitivity of such questions and concerns that some respondents might understandably have about intrusion into their private lives, the voluntary nature of the questions is of the utmost importance.
Since the 2011 census, extensive research, including “Scotland’s Census 2021 Topic Consultation Report”, by the National Records of Scotland, has built a strong case to justify the inclusion of questions on sexual orientation and gender identity. That is relevant to the public sector equality duty that is placed on authorities to eliminate discrimination and advance equality of opportunity.
Robust data on sexual orientation and gender identity will inform future policy and ensure best practice across Scotland. For example, accurate information on the size and geographic spread of the transgender population will help us to plan gender dysphoria services more effectively, thereby ensuring that resources are placed where their impact can be optimised.
To gather that data, the bill adds gender identity and sexual orientation
“to the schedule of matters about which particulars may require to be given”.
It also provides a power to prescribe aspects of gender identity, such as transgender or trans history, for the purpose of making questions about those aspects voluntary. Of course, the precise form of the questions will be considered as part of the census order and census regulations procedure set, which is usually scrutinised by Parliament the year before the census takes place. It is not within the scope of the bill.
I am pleased that the cabinet secretary confirmed that she will work with the committee after stage 3 and throughout 2019, so that we may properly scrutinise the census questions before they are formally considered by Parliament. That will allow a more evidence-led approach, to ensure that the questions are as robust as possible. Undeniably, these are sensitive issues and, during evidence sessions, I was impressed by the measured and considered tone that witnesses used, despite their—at times—diametrically opposite opinions.
Based on evidence from contributors ranging from academia to equality organisations to women’s groups, our report makes key recommendations, some pertaining to the precise question forms rather than the Census (Amendment) (Scotland) Bill.
First, we recommend that the mandatory sex question in the 2021 census should remain binary. That is based on the evidence of organisations such as Woman’s Place UK, which maintains that
“An individual’s biological sex is an immutable characteristic”
and that, because sex is a protected characteristic under the Equality Act 2010, it should not be conflated with gender identity. I trust that the Government will heed the committee’s clear view on the phrasing of the mandatory sex question and take it forward as subordinate legislation is developed.
I am pleased that the Government is committed to amending the Census (Amendment) (Scotland) Bill at stage 2 to ensure that gender identity and sex are not conflated.
As the Equality Network suggested, if “including gender identity” was removed from the bill, that would leave paragraph 1 of the schedule to the Census Act 1920 regarding the mandatory sex question unchanged. “Trans status” could then be added as a category on the same basis that is proposed for “sexual orientation”.
Another key recommendation is for all guidance relating to the 2021 census to clarify that intersex does not fall within the term “trans”. Again, I am pleased that the Government has confirmed that the NRS will work with stakeholders to develop guidance that uses the appropriate language and terminology. The evidence emphasised that intersex should not be viewed within the prism of gender identity; it is a medical condition. I particularly thank dsdfamilies, which is an information and support charity that promotes the rights and wellbeing of children with physical sex developmental differences, for its illuminating evidence.
I support the principles of the bill and, given the societal shifts that Scotland has experienced since 2011, I believe that changes to the census are appropriate.
Thanks to the thoughtful contributions of all parties, we now have the opportunity to remedy some of the deficiencies that were highlighted by the committee’s report. I look forward to working with colleagues and the cabinet secretary to develop the census order.16:19
Pauline McNeill (Glasgow) (Lab)
The census is vital and it gives us a complete picture—or at least, it should.
Given that it is conducted only every 10 years, it is important that we get it right. It is an analysis of the character of society and it has vital information on which to make decisions about budgets and about society. I commend Joan McAlpine for an excellent speech on behalf of the committee; it showed how diverse and complex the issues can get, but I well understood everything that she said.
If we want central and local government to offer the best and most responsive public services, policies must be based on high-quality evidence. Moreover, data on sex and gender, as well as ethnic group data, can help to identify the extent and nature of disadvantage in the UK, which is an issue that we are all signed up to tackle. Engender has noted that public authorities are increasingly sharing with it their confusion around how to gather service user data around sex and gender. It has pointed out that the census has an important role in setting a precedent:
“Because of its scale, the census plays an important normative role in shaping how information is gathered in other more frequent or localised data gathering.”
I am grateful to Engender for an excellent briefing on the issue.
As others have said, it is important that people can feel comfortable about answering questions on sexual orientation and transgender status. It is right that the proposed questions are to be voluntary, which is reflected in the committee’s agreement on that issue. I am pleased that the committee took on board the concerns raised by witnesses that the bill at times appears to conflate sex and gender identity, even if that was not the intention, and I am pleased that those concerns will be addressed at stage 2—we need to be clear that there is a big difference.
In a survey by LGTB Youth Scotland in 2017, 85 per cent of LGBT young people said that transphobia was a problem for Scotland and 41 per cent of transgender young people said they had experienced a hate crime or hate incident in the previous year. Given the high level of concern that was raised, it is important that we try to gather the best data that we can and, at a minimum, we try to find out as comprehensively as possible how many people in Scotland identify as transgender. I have long believed that, in its work on equality, this Parliament has a job to do to focus on the rights and needs of the transgender community, and I would welcome finding out the extent of the transgender community through the census.
I also welcome the cabinet secretary’s clarification that “intersex” people will not be included within the term “trans”—to be perfectly honest, I am astonished that a policy memorandum could have mixed up the two. Those two groups should not be and cannot be thought of as one. Other members have described how an intersex person is quite a distinct person.
In my closing remarks, I will speak about the LGBT Youth Scotland recommendation on the question of the privacy of young people—and, in fact, any person in a household. I ask the cabinet secretary in her summing up to speak about what the definition of a household will be in these days of equality. This is one of the most important issues to try to resolve, and the suggestion from LGBT Youth Scotland is that another process could run alongside the census, which would be voluntary. I am absolutely in favour of that; we have to give quite a bit of thought to how to make sure that the data is matched properly and there is no loss of data as a result of the process. I am 100 per cent behind this idea, but I want to make sure that the data matches.
I welcome the committee’s recommendation that the Scottish Government should
“further consult with a range of organisations representing ‘intersex’ people in order to improve the information and specialist services available to support children and families of people who have differences of sex development.”
I thank the committee for its excellent work.16:24
Stuart McMillan (Greenock and Inverclyde) (SNP)
I associate myself with the committee convener’s comments regarding everyone who provided evidence and participated in the stage 1 process.
I have genuinely found the bill to be fascinating and enlightening in equal measure. The strength of the evidence that we heard certainly provided me with a lot to think about and to try to fully comprehend. I did not expect the extent of the evidence to be as broad as it was, given that the bill is so short and relates mainly to facilitating the process of asking a voluntary question.
I am content with the report that our committee has produced and equally so with the cabinet secretary’s response in her letter of 25 February. The cabinet secretary has appreciated the genuine concerns that were raised by those who gave evidence and in the committee’s subsequent report. I am pleased that, at this early stage, she has confirmed that amendments will be forthcoming at stage 2.
I will highlight a few aspects of the report, starting with paragraphs 120 to 129 on consultation. I found the lack of consultation by NRS, in particular with women’s groups, as mentioned in paragraphs 120 and 121, concerning. I thought that there must have been strong reasons for that to have been the case. The cabinet secretary’s reply was helpful in that regard and states:
“No women’s groups responded to the public consultation and some were not established at this early consultation stage.”
As the NRS consultation took place between 8 October 2015 and 15 January 2016, it is possible that, with the upcoming parliamentary elections, the various groups that were in existence may have been focusing on other issues, including the development of their own manifestos. However, having received no response from any of them, I would have hoped that NRS would have gone back to them after the 2016 election. The work is clearly now under way and I am genuinely thankful and pleased that that is the case.
The remainder of my comments have the following two points as their backdrop. First, paragraph 11 of the report states:
“The Committee agrees that there has been considerable social change with regard to issues concerning sexual orientation since 2011.”
Secondly, paragraph 75 of the report contains a quote from the cabinet secretary:
“The census does not lead public opinion; the census has to reflect society as it is just now and ask questions that maximise the response rate so that the data can be used.”—[Official Report, Culture, Tourism, Europe and External Affairs Committee, 20 December 2018; c 45.]
Clearly, the 2011 census would have been appropriate at that time, but it is right that the census goes through a rigorous analysis and process before it next takes place. The committee divided on one issue: whether the mandatory sex question should be binary. It is clearly a defining issue for many people and I appreciate the strength of feeling on both sides of the debate. My decision came down to three points: the ease of gathering the data; how the information gathered will be analysed and used; and the consistency of data gathering. I appreciate that the recommendation will have disappointed, and potentially angered, some people and organisations. However, I believe that the recommendation was made with the best of intentions by those who voted for it. I also believe that my colleagues who took a different position did so for exactly the same reasons.
The evidence that we heard from Professor Susan McVie of the University of Edinburgh was very powerful. Paragraph 60 of the report contains a quote from her evidence:
“It is a fundamental property of research that, in designing a questionnaire, you need to be extremely clear about what you are measuring. Possibly controversially, I think that the General Register Office for Scotland got it wrong when it redesigned the census in 2011 and conflated sex and gender identity”.—[Official Report, Culture, Tourism, Europe and External Affairs Committee, 13 December 2018; c 4.]
It therefore came as a surprise to read in the cabinet secretary’s letter that the NRS testing seemed to indicate that a non-binary question would lead to a higher response rate. I would be grateful if the NRS could provide further information regarding the testing results and the suggestion of maintaining a binary sex question.
The conflation of sex and gender identity became apparent during the early stages of the committee’s scrutiny, therefore I am sure that it came as no surprise to many people that we highlighted it in paragraph 9 of our report.
Some of my colleagues have touched on dsdfamilies. I had not heard of dsdfamilies beforehand and I am grateful for the briefing that we received from it. I was genuinely humbled by what I heard about the challenges that are faced by those individuals and families every single day.
As the cabinet secretary indicated in her evidence and in her letter, the policy memorandum to the bill will thankfully be amended to reflect more accurate descriptions of intersex and trans people. I am also pleased that the committee’s recommendation in paragraph 119 of the report will be progressed.
I welcome the progress of the bill and the amendments that will be introduced at stage 2, and I am pleased to vote in favour of the general principles of the bill.16:29
Annabelle Ewing (Cowdenbeath) (SNP)
As a member of the Culture, Tourism, Europe and External Affairs Committee, I am pleased to have been called to speak in this stage 1 debate on the Census (Amendment) (Scotland) Bill.
As we have heard, the bill is very short, with three sections on one page. Notwithstanding that, it has—as we have also heard—generated quite a lot of discussion, given the wider issues that have been raised were not intended to be within the scope of the bill.
Before I turn to some of those wider issues, it is important that I focus at the outset on the purpose of the bill. Its purpose is to ensure that certain questions can be answered on a voluntary basis in the next census, which is scheduled for Sunday 21 March 2021. Indeed, it is the desire to make answering the questions voluntary that triggers the need, paradoxically, for primary legislation.
In the bill as drafted, the questions concerned relate to gender identity and sexual orientation, as we have heard. It was felt that, in the interests of privacy and because of potential sensitivities, it would be best to pose the questions to be answered voluntarily. As we have heard, there has been widespread support for that approach from a range of public bodies, the Law Society of Scotland, various equalities organisations and others. It is worth noting that, when a question on religion was introduced for the first time in the 2001 census, it was included to be answered on a voluntary basis, as we have heard. Therefore, there is precedent for the approach.
Where the bill has generated rather more discussion, that discussion has resulted from what can be regarded only as confusing—if not technically defective—drafting. Specifically, there is a reference to amending the relevant schedule to the Census Act 1920 by inserting the words “including gender identity” after the word “sex” in respect of what broad subject headings questions can be asked on. It was flagged up that that conflates gender identity with sex. Further to the concerns that have been raised, the committee has sought clarification that the bill will be amended at stage 2 to delete that confusing reference. I am pleased to note that, in her evidence, the cabinet secretary agreed to reflect specifically on that point.
That initially flawed approach, together with some rather precipitate comments in the policy memorandum about decisions that will be for the Parliament to make in due course, in respect of the subsequent census draft order, have led to a wider discussion about the binary nature of sex and the mandatory sex question in the census. The mandatory question is not within the scope of the bill.
Evidence was received in that regard from a number of people and organisations, and various points were raised. Evidence was received on the scientifically grounded theory of human sexual dimorphism, and evidence was received that reminded the committee that sex is a protected characteristic under the Equality Act 2010, and highlighted that conflating sex with gender identity is a social construct that is becoming more widespread. Dr Kath Murray commented on the impact of that trend. She stated:
“This blurring, which has the effect of changing what it means to be female, has implications for the protection of women’s rights.”
I am afraid that, in four and a half minutes, I cannot go into the wider issues that the evidence raised.
The Deputy Presiding Officer
You have five minutes.
Great. My time is going up. Nonetheless, I do not have time to go into the issues in as much detail as I would like. However, it is worth pointing out that Amy Wilson, who is the head of census statistics at National Records of Scotland, said in evidence that even if there were to be a non-binary sex question, the NRS would just
“randomly assign people back into the male and female categories”
and that it would
“still produce outputs on a male and female basis.”—[Official Report, Culture, Tourism, Europe and External Affairs Committee, 20 December 2018; c 43.]
That rather begs the question what the point would be of including a non-binary question in a census that is supposed to adhere to the highest statistical standards and provide longitudinal consistency.
The ONS in England and Wales has proposed that the mandatory sex question remain binary for the 2021 census. As we have heard, the committee recommended—by six votes to one with two abstentions—that the mandatory sex question remain binary. I entirely support that recommendation.
I very much welcome the cabinet secretary’s commitment to consider further how people’s privacy can be respected when they are completing the census in their own households, which is a point that I raised at committee.15:21
This has been an interesting debate that has provided Parliament with an insight into the broader issues that the committee has been considering through this fairly humble bill. It might be surprising, given the degree of debate, that the expectation is that the bill will pass at stage 1, as the committee recommends.
Although the sex question has been a key focus of the debate, members have identified other issues. Pauline McNeill talked about the LGBT Youth Scotland briefing that we received, which was very helpful and highlighted the growing need for the census to support confidentiality because questions are becoming more intimate. I urge the cabinet secretary to consider the proposals from LGBT Youth Scotland, and I welcome her comments on privacy rights, on which I will reflect.
Annie Wells raised the issue of the 2011 self-identification model. Guidance was provided in the 2011 census that allowed self-identification on the sex question for transgender men and women. That was available only if the person sought it online, which raised the question how widely understood the position was. The committee heard evidence that the approach in the 2011 census compromised the data, and it heard counter-evidence on the extent of that impact. That is an issue on which the cabinet secretary needs to reflect.
I looked at the Gender Representation on Public Boards (Scotland) Act 2018, which was recently passed. It has quite a prescriptive transgender definition, because it states that the term “woman” includes someone who has
“the protected characteristic of gender reassignment”
“the person is living as a woman”
and intends to undergo gender reassignment.
The guidance for the 2011 census was different, in that it enabled self-identification as a different gender. I wonder where all that fits with the ongoing review of the Gender Recognition Act 2004. The lack of consistency is problematic.
Although the debate about whether to change the existing binary question was a key concern of the committee and the witnesses, the committee was taking evidence in the dark. It was unclear what the Government’s intention was: today’s debate has not made it any clearer.
The Scottish Government and NRS have created a situation that, it appears, they did not anticipate or prepare for. The policy memorandum to the bill says, in the section concerning the sex question, that
“Looking forward to 2021, consultation has identified the need for a more inclusive approach to measuring sex. The sex question being proposed for the 2021 Census will continue to be one of self-identification and will provide non-binary response options.”
However, following its appearance at the committee at the end of our evidence-taking sessions, NRS wrote to say:
“We are currently considering whether or not to have a non-binary response option for the sex question, but it is too early to say if this will be the final proposal as testing and consultation continues.”
The cabinet secretary said:
“the policy memorandum says that the 2021 sex question will have a non-binary response option. It should have said that that approach is being considered and tested.”—[Official Report, Culture, Tourism, Europe and External Affairs Committee, 20 December 2018; c 28.]
The lack of clarity was very unhelpful, and that area of debate has dominated the evidence, even though it is not part of the bill. As the convener outlined, the ONS has confirmed that there will be no change to the question in its forthcoming census.
Ross Greer outlined the arguments supporting a change to the sex question. I understand that it would enable people to answer the question based on how they live their lives. I appreciate the feelings of a non-binary person that the choice that is presented does not reflect their lived experience. However, NRS said in evidence that it would then just assign a sex to the respondent. It said:
“If we ask a non-binary question—that is the big if and is obviously something for the committee to take a view on—we do not propose to produce outputs on a non-binary basis. In our conversations with stakeholders, we have always been consistent that it is about allowing people to respond in a way that reflects how they identify but that we will still produce outputs on a male and female basis. We have discussed with stakeholder groups the fact that we would randomly assign people back into the male and female categories because, as the numbers are expected to be very small, that will not affect the statistical distributions.”—[Official Report, Culture, Tourism, Europe and External Affairs Committee, 20 December 2018; c 43.]
That begs a question about how that information contributes to the data that is collected by the census, which I understand is the purpose of the census. I would welcome clarity on what purpose a change to the binary question would serve. Perhaps the cabinet secretary will respond to that. There is also an assumption by the NRS that the numbers will be very small, but I am not sure that the committee was convinced that we could be confident of that. Therefore, there is a lack of consensus on the approach, which makes it problematic.
As others have said, only now, for the 2021 census, is it being proposed that a voluntary question on sexual orientation be included. The policy memorandum gives as the reason for that:
“A question on sexual orientation was considered for inclusion in the 2011 census. However, the level of public acceptance of the question was not considered sufficient to merit its inclusion in that census.”
Given the evidence that the committee heard, there are clearly still questions to be answered about the level of public acceptance of a change to the binary sex question. Consideration must be given to other ways for the census to meet the needs of non-binary people, so a two-stage question has been suggested.
Stuart McMillan talked about inadequacies in the consultation. The debate has really grown since changes to the Gender Recognition Act 2004 were proposed, which is the nub of the debate. It is unfortunate that the census will come before resolution of that issue.
Mr McMillan also said that the census does not lead public opinion, which is different from the view of Ross Greer. I might be misrepresenting him, but he seemed to talk about the census moving the debate forward and taking a lead on the equalities agenda. Perhaps the cabinet secretary will provide clarity on her views about the purpose of the census.
The debate at committee has been a microcosm of the wider debate that is taking place around possible changes to the Gender Recognition Act 2004, but we should not lose sight of other issues that impact on LGBT people. The briefing from LGBT Health and Wellbeing highlights some of those issues. The LGBT population is subject to multiple disadvantages; for example, 74 per cent of LGBT Health and Wellbeing’s service users report disability, compared with 20 per cent of the general population, and 27 per cent report unemployment, compared with 3.7 per cent of the general population.
We know that prejudice towards the LGBT community exists, and that physical assault and verbal assault are too common. Access to appropriate health services is not always easy, and people can face isolation from their families and communities. Although I fully recognise the concerns that have been expressed about enabling self-identification for trans people, and what that means in terms of women’s spaces and women’s rights, we must also recognise that members of the LGBT community are themselves often vulnerable and open to exploitation and assault. We need to chart a path through that debate in a sensitive and understanding manner, while recognising and addressing everyone’s concerns about the impact of the changes and working to achieve understanding and consensus.16:42
Alexander Stewart (Mid Scotland and Fife) (Con)
I am pleased to have the opportunity to contribute to this important debate on stage 1 of the Census (Amendment) (Scotland) Bill and to close on behalf of the Scottish Conservatives.
It is clear that, as our society changes over time, we must adapt the way in which we record information and reflect those changes. The Equality Act 2010 requires public authorities to fulfil certain public sector equality duties. Public bodies should aim to eliminate discrimination, harassment and victimisation, advance equality of opportunity between different groups and foster good relations between them. That is very much the theme of where we are today.
It is vital that we have a rich set of data and information that will allow public bodies to fulfil their equality duties. The bill, with its introduction of the two voluntary questions, will undoubtedly help to plug some of the information gaps that have been recognised, particularly in relation to sexual orientation and gender identity.
Submissions from a wide range of organisations and individuals have shown how much they support the inclusion of those questions. As a member of the committee, I pay tribute to the many individuals who gave us oral and written evidence. It is right that those questions are voluntary, as sexual orientation and gender identity can be challenging for many individuals at different stages of their lives.
As we know and have heard, LGBT people often face discrimination and abuse, with the result that they find themselves alienated, discriminated against and challenged. We need to do all that we can to address that, but making it compulsory to answer questions on sexual orientation and gender identity and threatening people with a fine for non-compliance is not what we should be doing. We should make sure that people feel that their views and opinions are taken on board and recognised.
It is worth noting that the UK Government’s white paper on the 2021 census, which was published last year, reaches similar conclusions on the issue of questions about sexual orientation and gender identity. As with the Scottish Government’s proposed approach, it will not be compulsory for people to give their sexual orientation or gender identity if they do not wish to do so. Ministers have indicated that the right not to answer those two questions should be made clear in legislation before the census is taken.
As other members have said, it is important to note that the bill will not change how people legally change their gender; that is not what we are discussing. The issue of gender identity will be debated separately when the Scottish Government’s proposed gender identity bill comes before the Parliament.
It has been an interesting debate in which there have been many passionate contributions from members who feel strongly about where we are. My colleague Annie Wells noted the committee’s concerns about the conflation of sex and gender identity, as well as its concern that there was a lack of awareness of the online guidance on the approach to self-identification that was taken in 2011 and a lack of clarity surrounding that guidance.
I am delighted that the cabinet secretary has taken on board the fact that the consultation process must be robust and that further consultation requires to be done to ensure that people have confidence in the process. Some individuals and organisations felt that there had been a lack of consultation, and that has now been acknowledged.
Annie Wells also commented on the cabinet secretary’s clarification that intersex people will not be covered by the term “trans”. I welcome the recognition that their needs are different and the commitment that further guidance on the issue will be provided.
Joan McAlpine talked about how important it is to protect the privacy of young people in the census process. That is vital. We must ensure that the data that we collect is robust, but we must also protect individuals who feel threatened or who face a conflict. The information that we provide in that regard must be clear.
Claire Baker highlighted the fact that there was agreement across the committee on many aspects of the bill but that it is necessary to have accurate data. The complexity of the issue must be looked at, and changes will have to be made at stage 2.
Alex Cole-Hamilton said that we live in enlightened times and that it is vital that we recognise people’s rights. The policy behind the bill matters. The bill might only be small, but it matters. We must support communities and individuals who feel marginalised and threatened.
Jamie Halcro Johnston talked about the sensitive nature of the bill and the committee’s approach to it. We appreciate the fact that censuses have been going on since 1801, but it is important that the data that is collected is accurate, because there have been shortcomings in the past that should not be repeated in the future.
Annabelle Ewing spoke about the evidence that the committee received. We received a lot of evidence from different organisations and individuals who feel passionately about the census process and wanted to get their views and opinions across. The members of the committee certainly heard that. The importance of the fact that sex is a protected characteristic has also come through. It is vital that we get the right information and that people’s privacy is protected during the process.
The Scottish Conservatives agree with the broad principles of the bill, but we would like a number of important changes to be made. For example, we would like further clarification to be provided on the distinction between mandatory and voluntary questions and on how the voluntary questions on issues such as gender identity will be defined and structured.
We will support the bill at stage 1, but we will consider lodging amendments at stage 2. Stakeholders have made it quite clear that we need to take on their views and opinions so that we take a balanced approach. The idea of the census is to collect the correct data and make it available for everyone to use. It is therefore vital that we do all that we can to take a balanced approach. As I have said, we owe our support to those individuals who have come forward and told us what they believe.16:50
I am grateful to my parliamentary colleagues here today for a sensible debate on very sensitive matters. The committee and I recognise that there are strong views on the issues—some of them have been demonstrated today—but it is vital that the debate is conducted in a respectful manner, as it has been in this parliamentary debate.
The Census (Amendment) (Scotland) Bill has been the first opportunity for Parliament to get involved in the 2021 census, but this really is just the start of our journey. Jamie Halcro Johnston, I think, mentioned that stage 1 is perhaps not the time to be discussing the content of the questions—which is true—and that the bill is not necessarily the place to discuss the wider issues of gender recognition, which some members have touched on, but we are where we are. We have to reflect on and address the evidence that was given during the witness sessions, because we will have to work through those issues when we get to deciding on the questions for the regulations.
It is really important to underline the point that most people agree that the time is right to ask two specific questions on sexual orientation and transgender and that answering them should be voluntary. That is the purpose of the bill, but clearly it has stimulated interest in wider census matters.
I am very proud to have portfolio responsibility for the census, and I am very keen to use the next two years to prepare for a successful and meaningful census. It is only 752 days until the census on 21 March 2021, so the clock is very much counting down.
I mentioned in my opening address that the people of Scotland must have confidence in the census, as they will be sharing their personal information—the issues discussed today demonstrate just how sensitive that information is. We must meet their legitimate expectations by ensuring that their data is kept safely and securely. We must also keep the trust of the people of Scotland by asking the most appropriate questions, which reflect our society at this time, and doing so sensitively.
Will a question or response option be included in the census to identify armed forces veterans?
I am delighted to highlight that we have already agreed to do that. I am surprised that Maurice Corry is not aware of Graeme Dey’s announcement about our intention to include a question on veterans in the census as part of the veterans debate some time ago. Again, that will be subject to the agreement of Parliament.
It is important that we deliver on the trust that we have with the people of Scotland. We have done that over 200 years of data collection, and we should be very proud of our achievements. Some questions have come and gone, but we have always been consistent in our professional approach to the census and tracking the core data.
Although a significant focus on 2021 is on its being the first digital census—it will primarily be online—asking the right questions in the most appropriate way is still at the heart of census. The National Records of Scotland has carried out significant stakeholder engagement over recent years, and continues to take forward that work, to ensure that we have the best possible census.
The discussions on the bill have contributed to that process with, for example, National Records of Scotland now engaging with women’s groups who responded to the committee’s call for evidence. Some of those groups had not even existed at the time of the initial public consultation. I wish to be very clear that no stakeholder has intentionally been excluded from engagement and consultation by NRS; everyone with an interest in census questions is encouraged to engage with the process.
Even though extensive testing of options for the questions was carried out prior to the bill, which included thousands of people across Scotland’s society, some views have emerged recently as a response to the call for evidence. The door is still wide open, and we welcome the views of others.
I will now address a number of points that have been made in the debate. In response to Joan McAlpine’s question about the wording in the bill, I know that the current wording is “sex (including gender identity)”. Associating gender identity with sex can lead to conflation of the two, and we are open to addressing that issue and, indeed, identifying where the transgender question could come into this.
One important point that I should highlight is that, although it looks as if in England and Wales the ONS will continue with a binary sex question, it will be self-identified, as it was in 2011. That is a genuine issue that the committee and, indeed, all of us will have to consider: if we do not have a self-identifying binary question, and if the question itself is mandatory, how will transgender people, in particular, be able to answer it? How do we give them opportunities to address the issue? A non-binary sex question would avoid the kind of male and female self-identification that you would get with a binary question, and such points will have to be considered. The sex question is, as we will remember, mandatory, but how can people answer it if options are not available? The fact is that we need people to complete the census. The important issue, particularly for transgender people, is to have the voluntary question, and I think that we all agree that that is vital.
There were questions about which method would get the best response rate. The committee seemed to assume that a binary question would, but it might surprise members to learn that when more than 5,500 people were tested, the binary sex question had—marginally—the lowest level of response. We have shared that information with the committee, but I would also point out that the two-stage question, which I think Claire Baker referred to, had a much lower response rate, too. Credibility of approach and the ability to count are absolutely important in all of this, and that information will be considered when we come to the next stage of the process and look at the census regulations.
Does the cabinet secretary recognise that a majority of committee members opposed a non-binary sex question, because of the longitudinal quality of the data? The male/female question has been asked since 1801.
Yes, I recognise the longitudinal aspect to this, but the committee also said that a binary question had a higher response rate, and that is not necessarily the case; but we can look again at such questions. The question in the 2011 census was self-identifying, which is something that the committee will have to consider when we come to the next stage of the process and to the questions themselves.
Annie Wells was absolutely right to say that we need clarity and to strike a balance, and on Claire Baker’s very important point about future proofing the census, I have to say that, based on our experience to date, we will probably have to introduce legislation every 10 years in order to debate issues that might be controversial. Those who were around in 2011 will remember that the issue of language was somewhat controversial at the time, and we will need to be able to reflect on such matters.
Ross Greer made some very important points about the issue of equality. However, that brings us back to the question of whether the census should lead the debate or reflect the society in which we live, and I think that it is important for it to reflect society. As always, Stewart Stevenson raised some very interesting issues; indeed, he made the fundamental point that the census is a statistical not an individual service. It is important that it is authoritative and that people have confidence in it.
I have already addressed Stuart McMillan’s point about better response rates. On Pauline McNeill’s question about the definition of the term “householder”, there is such a definition, but given the time and the detail that it goes into, we will send it to Ms McNeill to ensure that she has clarity in that respect.
Everyone who has contributed to the debate has touched on different aspects of the committee’s assessment of and report on the bill. The committee has concluded that the bill’s current drafting, particularly the use of the term “gender identity”, has created some confusion and a perception that sex and gender identity are being conflated. As we do not want that kind of conflation, amendments will be lodged at stage 2 to deal with the issue. I want to make it very clear that it was never our intention to conflate sex and gender identity, and I note the committee’s support for the Equality Network proposal to amend the bill to address the matter. I should say that our thinking on this is very similar to that of the Equality Network.
As members have been aware for some time, section 1 of the Census Act 1920 provides the enabling power that underpins the taking of the census. It allows the making of the census order, which will be the next stage of the regulations, as we move towards the detailed questions.
NRS will be working closely with the committee in the run-up to the laying of the census order and census regulations. I am keen to ensure that there is sufficient time to ensure comprehensive understanding of all matters in Scotland’s 2021 census. It may be a one-page bill but it addresses some of the fundamental issues that confront society just now. Today, underlying everybody’s contributions was the idea of equality and the importance of championing equality in this Parliament, and I am very pleased about that.
28 February 2019
Stage 2 - Changes to detail
MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.
Changes to the Bill
MSPs can propose changes to a Bill – these are called 'amendments'. The changes are considered then voted on by the lead committee.
The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.
The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.
How is it decided whether the changes go into the Bill?
When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.
The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.
Depending on the number of amendments, this can be done during one or more meetings.
Meeting on amendments
Documents with the amendments considered at this meeting held on 2 May 2019:
First meeting on amendments transcript
The Convener (Joan McAlpine)
Good morning and welcome to the 13th meeting in 2019 of the Culture, Tourism, Europe and External Affairs Committee. I remind members and the public that they should turn off their mobile phones, and any committee members who are using electronic devices to access their committee papers should ensure that they are switched to silent. We have received apologies from Tavish Scott MSP.
Agenda item 1 is stage 2 consideration of the Census (Amendment) (Scotland) Bill. I welcome to the meeting the Cabinet Secretary for Culture, Tourism and External Affairs, Fiona Hyslop, and her officials.
Section 1—Particulars about gender identity and sexual orientation may be gathered in census
Amendment 1, in the name of the cabinet secretary, is grouped with amendments 2 to 4.
The Cabinet Secretary for Culture, Tourism and External Affairs (Fiona Hyslop)
In my response to the committee’s stage 1 report and during the stage 1 debate on the bill in Parliament on 28 February, I committed to lodging amendments to address the perceived conflation of sex and gender identity in the bill as introduced. Amendments 1 to 4 have been lodged to deal with that issue, as highlighted by the committee.
In its report, the committee supported the Equality Network’s proposal that the bill be amended and, as I have previously confirmed, our thinking on the approach was not that different. I undertook to ensure that my officials engaged with stakeholders in developing the amendments, and I confirm to the committee that National Records of Scotland worked with the Equality Network and others on the specific text of the amendments before they were lodged. National Records of Scotland also wrote to other interested stakeholders, including the women’s groups that responded to the committee’s call for evidence at stage 1, to highlight the suggested amendments and seek their views. No issues were raised by any of those stakeholders—indeed, there was only support for the amendments.
As the committee knows, I lodged the amendments much earlier than usual—in fact, before the Easter recess—to give the committee and others as much notice as possible. They seek to place transgender matters into the schedule to the Census Act 1920 as an entry on their own alongside religion and sexual orientation, and to remove the provision that would have added the phrase “(including gender identity)” to the paragraph in the schedule that contains the word “sex”. The amendments also seek to continue to ensure that the census order is able to make the question on transgender status and history voluntary, which is one of the bill’s key purposes.
I am pleased that stakeholders, the committee and the Parliament have supported the bill’s general principles. It is vital that nobody is or feels in any way compelled to answer the proposed questions on transgender status and history and sexual orientation, so it is right that those questions be voluntary. It is also critical that all respondents know clearly that the questions being voluntary means that there will be no penalty if they do not answer them, and work is in hand by National Records of Scotland to ensure that that is achieved.
The amendments deal with the issue, which was raised by the committee, of the perceived conflation of sex and gender identity and, as I said, they are supported by the stakeholders that have been consulted. It is also important to point out that amendment 4 explicitly puts the phrase “transgender status and history” into the bill’s long title.
I am pleased to have been able to lodge the amendments in the group. I move amendment 1.
Claire Baker (Mid Scotland and Fife) (Lab)
The amendments, which are very welcome, reflect the wider debate that the committee had. In my view, they give this short bill necessary clarity. I am pleased to see them this morning, and I will support them.
Annabelle Ewing (Cowdenbeath) (SNP)
I echo Claire Baker’s comments. We called for the cabinet secretary to do the very thing that she has just explained to the committee she has done, and that is very welcome. As Ms Baker said, the amendments provide the clarity that the committee has been seeking.
As no other member wishes to speak, I ask the cabinet secretary whether she wishes to wind up.
If agreed to, the amendments will allow the focus of the bill to be achieved. At present there is limited evidence on the experience of transgender people in Scotland and there is no fully tested question with which to collect that information. The bill does not determine the text of the questions to be asked, but it paves the way for them and allows them to be voluntary. The census will take a leading role in gathering the evidence that is needed to support and protect Scotland’s transgender population, and the proposed voluntary question on sexual orientation will mirror that which is already asked in most other Scottish surveys.
Amendment 1 agreed to.
Amendments 2 and 3 moved—[Fiona Hyslop]—and agreed to.
Section 1, as amended, agreed to.
After section 1
Amendment 5, in the name of Jamie Greene, is in a group on its own.
Jamie Greene (West Scotland) (Con)
I welcome the cabinet secretary’s comments on the previous group of amendments. They address many of the issues that the committee and many stakeholders raised with the Government. The changes are welcome although, on a practical level, they are simply changes to wording that replace the term “gender identity” with “transgender status and history”.
When I spoke to the legislation team about my amendments, I said that their purpose was to address two concerns. First, I wanted to make it explicit in the bill that the questions about what was then “gender identity” would be voluntary, and to ensure that there would be no conflation of questions that were statutory and those that were voluntary. Proposed new subsection (2B)(a) in amendment 5 makes that clear.
Secondly, I wanted to address an issue of guidance. We took a lot of evidence on the confusion about the previous census versus the new census. Although I respect the fact that we do not know what the questions will be or how they will be worded, because they are yet to be discussed and tested, and rightly so, it is important to ensure that explicit guidance is given to those who have to complete the census so that it is clear to them which particulars are required. Also, although this is not specifically stated in amendment 5, I hope that guidance will be given on how people should answer the questions. The issue arose from our earlier debate about the conflation of sex and gender identity. In addition, I want to make it clear that neglecting to provide those particulars in the census will not make someone liable to a penalty.
I hope that amendment 5 is not contentious. I am seeking to ensure that the guidance is clear, given that there will be a substantial change between how people whom the change affects completed the census previously and how they might complete it now. I hope that the guidance will be robust and that it will be made clear that, if people choose not to answer the question and give that information, there will be no penalty thereafter.
I move amendment 5.
Has Jamie Greene had any discussions on the matter with the bill team? My understanding is that guidance is always published. I suppose that we will hear from the cabinet secretary whether what Jamie Greene proposes will be included. The amendment might just be a double way of achieving what is already there.
I also have a question that Jamie Greene might not be able to answer, but that the cabinet secretary might. My understanding is that, in previous censuses in which the question was voluntary, it was stated within the document that it was voluntary. That seems to be the best way to make it clear to people that the question is voluntary, rather than their having to look up guidance to get that information. I seek confirmation that the fact that the question is voluntary will be stated next to the question, as it was in 2011, rather than in notes at the beginning. I think that that is what Jamie Greene is trying to achieve. He wants to make it clear to people who are completing the form that the question is voluntary.
Claire Baker is right about that, but the difference between the new census and the previous one is that, previously, people were answering the sex question in terms of their lived sex. If we are to ask additional questions in the new census, I simply want the guidance to make clear to the people who will complete it, whatever wording we end up with, how they should answer the questions. I got feedback from stakeholders that there might have been confusion about the wording of “sex” and “gender identity”. However, the amendments in the previous group might tidy up that situation and make it more obvious. There is already guidance on the census, but I want to ensure that it is robust and explicit in relation to how people should complete any additional questions that the Government puts into the census, and that people do not feel under pressure to answer them.
I thank Jamie Greene for highlighting this important issue. Amendment 5 reflects the main policy driver for the bill, which is to make these sensitive questions voluntary. No one should think that they are answering the questions under the threat of criminal penalty. We have made it clear from the beginning of the process that the purpose of the bill is to remove the criminal penalty from those questions and make them voluntary rather than compulsory. For that reason, I agree with the principle of amendment 5.
It is important that we are explicit and clear to census respondents about which questions are voluntary. That will be made clear before the census takes place, as it will be set out in advance in the census order and it will be made even clearer in the census regulations.
However, I do not think that amendment 5 is necessary. It would require information on whether a question is voluntary to be placed in instructions separate from the form. National Records of Scotland has been developing plans for some time to embed the word “voluntary” into the text of the new questions so that census respondents are not required to cross-refer to separate instructions to find out that information. That is the point that Claire Baker made, and that approach was taken with the religion question in the 2011 census.
There is scope for the addition of similar clear direction in the covering message from the registrar general for Scotland that will appear on the front page of the census questionnaire, including information making it clear that there will be no liability for a penalty if voluntary questions are not completed. The information will also be covered in the supporting online guidance that is being developed for each question, which Jamie Greene mentioned. That guidance will again make it clear that the questions are voluntary and, therefore, refusal or neglect to state particulars will not make a person liable to a penalty under section 8(1) of the Census Act 1920.
In a number of ways, National Records of Scotland plans to ensure that there is a clear message about the voluntary nature of the questions and that that is communicated to census respondents. On that basis, I do not consider Jamie Greene’s amendment 5 to be necessary, although I support the principle and what he is trying to achieve. I will request that the registrar general, Paul Lowe, writes to Jamie Greene, copying in the committee, to provide the necessary reassurance on the approach that NRS will take to achieve that.
I hope that I have provided Jamie Greene and other committee members with enough information to reassure them that National Records of Scotland is alive to the issue that amendment 5 raises, which is indeed the driving purpose of the bill, and that NRS’s plans to communicate the message go further than the provisions that Jamie Greene suggests. On that basis, I ask Jamie Greene not to press amendment 5.
I thank the cabinet secretary for those comments and reassurances. Naturally, I do not want my amendment to have any unintended consequences with respect to what is printed in the guidance or in the census questionnaire. Those reassurances are welcome and they address the issues that were the premise of the amendment, so I will seek to withdraw it.
Amendment 5, by agreement, withdrawn.
Amendment 6, in the name of Jamie Greene, is in a group on its own.09:15
I will start by talking about the general purpose of amendment 6. The bill has opened up a wide-ranging social discussion on gender identity issues in Scotland, but, as I said in relation to amendment 5, we do not yet know what the look and feel of the finalised census questions on those issues will be.
I thank the Parliament’s legislation team, who kindly assisted me with the drafting of amendment 6, which provides for a review of the outcomes of the next census. It places on the Scottish ministers a duty to come back and take a stock check of the success or otherwise of the proposed voluntary questions on transgender status and sexual orientation. The purposes of such a review would be to check whether the questions were the right ones, whether they were worded in such a way as to elicit the best response rates and whether their inclusion altered those rates. The committee has discussed the fact that a core aim of the census is to encourage maximum response and the fact that none of the additional questions should affect that. We think that there should also be generic feedback from those census users for whom such questions are relevant on whether they feel that the questions have adequately reflected their needs.
I appreciate that, between now and stage 3, the wording of the questions will go through a tremendous amount of testing and focus, which is welcome. However, I still think that it would be helpful if, after the next census takes place, we were to analyse the implications of the changes that we make for the undertaking of the whole exercise. We should then make recommendations on future changes to the census, such as the addition of new questions, whether they be changes to the ones that we are adding now or ones that we choose to add as society changes and we consider it important that the Government should seek additional voluntary information from people.
The intention behind amendment 6 is not to make things difficult in any way or to create an undue burden as regards post-legislative scrutiny. It is simply that, as the proposed additional questions have been controversial, it will be helpful both to census users and to the Government to be able to look back and decide whether they feel comfortable that the added questions have met the data collection requirements of public services.
I move amendment 6.
Ross Greer (West Scotland) (Green)
I have a question that I hope both Jamie Greene and the cabinet secretary will be able to address. I do not think that any member would disagree with the need for a review after the next census, but my question is about the scope of amendment 6. My understanding is that the review for which it provides would cover only questions that might be changed in the process, which is to say those on sexual orientation and transgender status and history. Depending on what is in the census order, there may be further changes to the next census. Would it not make more sense for any review of that census to cover any changes in it, and so go beyond the scope of amendment 6?
Ross Greer has made a good point and his suggestion is helpful. As he pointed out, the difficulty with proposed subsection (2)(a) in amendment 6 is that the Scottish ministers’ report
“must consider the implications of the changes to the census arising out of this Act”,
which relates specifically to the changes that we are making in the bill. From my discussion with the legislation team, I understood that my amendment could do only that. I think that widening it to include future changes that might be made to the next census would indeed be helpful. Perhaps we could address that technical issue later on.
If it is possible to widen the scope of the amendment, I will be happy to do so, and that might address the issues. I would not want to limit the scope to what is in the amendment, but it is a good starting point. If it is technically possible to widen it at stage 3, I will be happy to do so, but I will need to seek guidance on that.
I appreciate that we are all trying to get this right and ensure that the census does the job that it is supposed to do. As we are talking about official statistics, would it be for the Scottish ministers or the registrar general, who I think completes a report, to produce the proposed report? I am not clear about whether the amendment proposes the best process; I think that it would be for the registrar general to widen his report as necessary.
The amendment says:
“The Scottish Ministers must ... prepare a report on matters mentioned”
“lay ... that report before the Scottish Parliament.”
I am sure that, with the wide range of assistance that ministers have from their directorates, ministers might choose to employ the registrar general’s assistance, but the duty would be on ministers rather than the registrar general. I was advised that that was the best way to ensure that Parliament received the report.
I appreciate the amendment’s intention. We had a wide-ranging discussion about the bill, but I am not convinced that the two voluntary questions that the amendment focuses on were where the controversy or debate lay in the committee. The bill limits the focus to those two matters, and I am concerned about attaching a report to those two questions but not covering other changes, unless there is an overall report. I am not convinced of the need to single out the two questions as being different from other questions; that is not where the issues that we discussed lay.
I am happy to respond. Your points are similar to Ross Greer’s feedback. My impression was that I could request the laying of a report only in relation to the changes that the bill will make, as opposed to those in future bills that have not yet been introduced.
I agree that it would be helpful to have a much wider review of the next census in a report to Parliament, but the amendment goes as far as I can go in relation to the bill. I am sympathetic to the notion that we could request a wider review post the census that would give feedback on the success or otherwise of any changes.
I understand the rationale behind the amendment and I agree that the important changes to the census that arise from the bill should be evaluated. However, section 4 of the 1920 act already obliges the registrar general to prepare and lay before Parliament reports on the census returns. Those reports provide information on the data that the census has gathered. National Records of Scotland is also developing plans for an overall report on the operation of the census, as was produced following the 2011 census, to cover a range of matters, including all the new questions. The bill’s implications will be covered by that.
For important reasons, I cannot support the amendment, which would place a one-off obligation on the Scottish ministers to report on
“the implications of the changes to the census”
that the bill will bring about. The amendment focuses on the new voluntary questions on sexual orientation and transgender status and would not encompass other new questions, such as those on veterans. National Records of Scotland plans to report on all the new questions in the 2021 census and not just on the new questions that the bill will make voluntary—Ross Greer and Claire Baker referred to that point. To be fair to Jamie Greene, he had to deal with the scope of the bill, whose purpose is only to ensure that there is no criminal penalty for not answering the voluntary questions.
Importantly, Jamie Greene’s amendment would place the obligation to report on the Scottish ministers rather than on the registrar general. As I said, the obligation to report on census returns and lay those reports before the Parliament falls on the registrar general, as is set out in section 4(1) of the 1920 act. Annabelle Ewing referred to that point.
There are a number of reasons why placing a new obligation on the Scottish ministers to report on
“the implications of the changes to the census”
that the bill will bring about would be inappropriate. The most significant of those is the involvement of ministers in the production of statistical reports, which is something that must remain independent. I cannot support the proposal in that regard. I believe—and I think that Parliament would agree with me—that anything that is involved in the reporting, production and operation of the gathering of statistics should be independent of whoever the Government minister of the day is. That does not stop ministers responding to the report of National Records of Scotland and, of course, the committee can review the census and its operations.
I also consider the amendment to be unnecessary, as the registrar general is already legally obliged to report on the census returns. However, again, I will request that the registrar general, Paul Lowe, writes to Jamie Greene and the committee to provide the necessary assurance around the approach that National Records of Scotland will be taking to achieve the sensible principles of the amendment. As I said, the registrar general has a duty to report to Parliament in that regard.
I hope that I have provided Jamie Greene and the committee with enough information to provide reassurance that National Records of Scotland is alive to the issues that are raised in the amendment and that its plans for the analysis and consideration of the 2021 census go further than the provisions that are suggested in the amendment. Therefore, I ask Jamie Greene not to press the amendment.
I thank committee colleagues for their comments and I thank the cabinet secretary for her kind comments on the premise of the amendment, within the limited scope of the legislation.
I am grateful to receive confirmation that the registrar general’s obligations already include the requirement to report back to Parliament. However, to pose a theoretical situation, I would like to know what the Scottish Government’s next steps would be in terms of changes to future censuses if, after the next census, the strong feedback was that the wording of the questions had not widely been well received by those to whom those questions matter. What would be the process in that regard? Would ministers have the ability to change the questions easily if it was felt that we did not get it right this time? I think that we all agree that it is important that we get it right—that is what sparked my amendment—so I hope that the cabinet secretary will reflect on that.
On the basis of the information that has been given today, I am happy to withdraw the amendment.
Amendment 6, by agreement, withdrawn.
Sections 2 and 3 agreed to.
Amendment 4 moved—[Fiona Hyslop]—and agreed to.
Long title, as amended, agreed to.
That ends stage 2 consideration of the bill.09:28 Meeting suspended.
09:33 On resuming—
2 May 2019
Additional related information from the Scottish Government on the Bill
Revised explanation of the Bill (Revised Explanatory Notes)
More information on the powers the Scottish Parliament is giving Scottish Ministers to make secondary legislation related to this Bill (Revised Delegated Powers Memorandum)
Stage 3 - Final amendments and vote
MSPs can propose further amendments to the Bill and then vote on each of these. Finally, they vote on whether the Bill should become law.
Final debate on the Bill
Once they've debated the amendments, the MSPs discuss the final version of the Bill.
Final debate on the Bill transcript
The Presiding Officer (Ken Macintosh)
The next item of business is a stage 3 debate on motion S5M-17645, in the name of Fiona Hyslop, on the Census (Amendment) (Scotland) Bill.
Before the debate begins, the Presiding Officer must make a determination on whether any provision of the bill relates to a protected subject matter; that is, whether it modifies the electoral system or the franchise for Scottish parliamentary elections. This bill, in my view, does no such thing. Therefore, the bill does not require a supermajority to be passed at stage 3.15:42
The Cabinet Secretary for Culture, Tourism and External Affairs (Fiona Hyslop)
I am very pleased to open this stage 3 debate on the Census (Amendment) (Scotland) Bill. The deliberations of the Culture, Tourism, Europe and External Affairs Committee through stages 1 and 2 have been considered. Although the bill might not have been extensive in terms of its size, it is certainly very important for Scotland’s 2021 census, as has been demonstrated in the evidence that has been provided by stakeholders. I reiterate my gratitude to everyone who has contributed to the bill process.
I also highlight again why it is important to support Scotland’s census, which will include the provisions in the bill. The next census will be held on Sunday 21 March 2021, subject to the approval of the Scottish Parliament. It will be the 22nd census since 1801 and the 17th to be managed independently here in Scotland. It will be the first census since the Scottish Government pledged to make public services digital first. We are building a platform to enable people to complete the census form online, and we expect the majority of responses to be online, with support being made available for those who need it.
Scotland has relied for more than 200 years on the information that the census has given us, and it remains the best way to gather information that Government, councils, the national health service and others need. The information that we will gather will help us to understand who lives in Scotland and what sort of homes we have. It is the official count of every person and household in the country and it is the only questionnaire of its kind that asks everyone the same questions at the same time. No other survey provides the richness and range of information that the census provides.
The Scottish Government and other public bodies use census information to help them to make decisions, including decisions on how money will be spent on the schools in which our children are educated, on the roads that we drive on every day, and on the hospitals on which we rely.
The key quality aspects of census data are that it must be able to count the whole population, it must be credible, people must have confidence in it and it needs to be consistent with comparators. We are very proud of the richness of the data that we hold and the consistency of approach that we can demonstrate over the past 200 years.
National Records of Scotland has responsibility for Scotland’s census on behalf of the registrar general for Scotland. Work is well under way to ensure that the 2021 census is secure and that privacy is protected. Census records have been held securely and confidentially for 100 years.
The census tells us who we are and how we live and work in Scotland. In telling that story, it must reflect society—it is not a vehicle to lead change in society. National Records of Scotland has consulted extensively with groups all over Scotland in order to develop questions and to test them to ensure that they are acceptable to the public.
By asking questions that reflect Scotland as it is today, we will ensure that the census will continue to be a vital source of information for decades to come. The final decision about what questions are asked in 2021 will be for the Scottish Parliament.
Collecting census information is a substantial undertaking, as is producing outputs from that information. It takes considerable time to ensure that the information is complete and is of the quality that is required of national statistics. NRS will carry out a thorough process of capturing, coding and cleaning the data, and then ensuring that it is complete. It will then apply rigorous controls to the data, to ensure that we protect the confidentiality of the data and deliver on the legal commitments that have been made. That will take time, but it is essential to ensure the robustness of the data that is used across services.
NRS has announced its intention to publish the first set of estimates from the 2021 census within a year of census day, which would be considerably earlier than was the case for the 2011 census.
Jamie Greene (West Scotland) (Con)
What is the public consultation process? How will members of the public be able to engage in forming and stress testing the new questions?
There are two elements: users’ needs and the need for population data. The consultation commenced years and years ago. The questions have been developed over a considerable time, as has the stress testing. There are different elements to the consultation. There is consultation on the questions—there are questions on Gaelic for example—and the census form contains sections that relate to different communities. Development of the questions has taken place over recent years and latterly, in recent weeks and months.
Jamie Greene is a member of the Culture, Tourism, Europe and External Affairs Committee. I have encouraged officials from National Records of Scotland to keep the committee abreast of all the process related to, and progress on, the census.
I am about to move on to the content of the bill, but the whole census project goes far wider and deeper. Obviously, Jamie Greene will be aware that the fact that the census will be digital will also have an implication for stress testing. Its being digital adds a new dynamic to the census.
All remaining outputs should be published over the two years following the first set of estimates, including those on sexual orientation and transgender status and history. It is essential that we have quality data, so we must use the required time to achieve that. The bill is an important part of that. I am sure that everyone knows that the purpose of the bill is to amend the Census Act 1920, to allow questions on sexual orientation and transgender status and history to be answered on a voluntary basis.
It is widely recognised that there is limited evidence on the experiences of transgender people in Scotland, and there is no fully tested question with which to collect information. Therefore, the census will take a big step forward in order to ensure that we can develop the evidence that is needed to provide support and protection for Scotland’s transgender population.
Sexual orientation is already asked about in most household surveys in Scotland, and it is proposed that the sexual orientation question for the 2021 census will mirror the question that is already used in those other surveys and elsewhere in the United Kingdom.
Society has changed significantly and rapidly in the years since the last census, so we must ensure that the census in 2021 reflects that. As I just reported in my response to Jamie Greene, the need for collecting the information was arrived at through a process of consultation and research. National Records of Scotland has worked, and continues to work, with stakeholders to understand the needs and concerns of the relevant communities.
The power to ask such questions to be answered on a compulsory basis already exists in the Census Act 1920. Refusing or neglecting to answer a census question is an offence under section 8 of that act. We want to ensure that non-completion of the questions that are to be answered voluntarily will not result in the penalties that exist for non-compliance in respect of mandatory questions. It is critical that nobody is, or in any way feels, compelled to answer such important but sensitive questions. The bill therefore seeks to mitigate any concerns about intrusion into private life by making answering the questions voluntary, as was the case with religion when it was included for the first time in the 2001 census.
I am pleased that the Culture, Tourism, Europe and External Affairs Committee supported the general principles of the bill in its stage 1 report. I was likewise pleased by the support of parliamentary colleagues at the stage 1 debate on 28 February. In my stage 1 response to the committee and Parliament, I committed to lodging amendments at stage 2 to address the perceived conflation of sex and gender identity in the bill. I delivered on that commitment and, I am glad to say, the committee accepted the amendments.
National Records of Scotland worked with the Equality Network and others on the specific text of the amendments before they were lodged. That work included consulting other interested stakeholders—including the women’s groups that responded to the committee’s call for evidence at stage 1—to highlight the suggested amendments and to seek people’s views on them. I am pleased to say that only support for them was received.
The amendments placed transgender status and history into schedule 1 of the Census Act 1920 as an entry on its own alongside religion and sexual orientation, and removed the provision in the bill that would have added “including gender identity” to the paragraph in that schedule that contains the word “sex”. The amendments have ensured that the census order will be available to make the question on transgender status and history voluntary, which is one of the key purposes of the bill.
The census bill will allow questions on sexual orientation and transgender status and history to be voluntary. However, there is still a subordinate legislation process to follow, which will very soon be under way, to ensure that the questions are included in our 2021 census. I am grateful for the support of Parliament up to this point, and I look forward to the further extensive engagement that lies ahead.
That the Parliament agrees that the Census (Amendment) (Scotland) Bill be passed.15:53
Jamie Greene (West Scotland) (Con)
I thank fellow members of the Culture, Tourism, Europe and External Affairs Committee, and the staff who work with the committee, for getting the bill to where it is. The reality is that never before—at least not since I joined this Parliament—has a one-page, 23-line bill caused so much debate and discourse, and attracted so much correspondence and controversy.
However, before I get on to the complex issues around sexuality, sex and transgender identity, let us start with the basics. What is a census and what is it for? One definition of “census” is:
“the procedure of systematically acquiring and recording information about all members of a given population”.
We can thank the Romans for that. What did they ever do for us?
As we know, in the modern age the census is important for many reasons. Completed every 10 years—with the next one coming in March 2021—it gives us a complete picture of the nation, as well as the sort of information that Governments need in order to develop policy, and to plan public services and how it will allocate funding to them.
The last census in 2011 was changed from the previous one—that is not unusual—and questions were added on race. That was a voluntary addition. The census changes, society changes, Governments change and attitudes—I hope—change, too.
The purpose of the bill is simple—it will allow National Records of Scotland to alter the census and vary the questions that it asks. It proposes to add two additional voluntary questions—on transgender status and history, and sexual orientation. We do not know what those questions will be or what guidance will go with them. We will address that when we have to. Answering the questions will be voluntary—not mandatory. People will not be forced to answer them, and there will be no penalty for not answering them. Answering the questions will not redefine one’s sex or change it legally. The questions will not confer additional rights or freedoms on anyone, nor will they remove anyone’s existing rights or freedoms.
The stage 1 report recommended
“that the mandatory sex question”
in the census
“should remain binary.”
I, along with another member, abstained from that recommendation. That was not because I took a view on it during the discourse on the stage 1 report, but because, in my view, that was not what the bill was about or what it proposed. That was not the question that the committee was asked to respond to. The committee had a point to make with that recommendation, and it made its point.
The debate around the conflation of the terms “sex”, “gender” and “gender identity” is complex. That there has been so much fuss about a simple bill and that so much debate has come out of it might strike an observer as being slightly odd. I have a thought on that. It comes down to one thing: timing. Many members will be aware that a wider conversation is taking place about gender recognition legislation, the content of which we are yet to see. The subject inevitably stirs up emotions. I see the bill as something of a precursor to that debate, which will be wide ranging.
Let me go back to the real questions of why we need the data, who needs it, and what we are going to do with it. In the early days of the bill, a member of the Scottish Parliament said to me that it is none of Government’s business to ask such questions. To be fair, I have some sympathy with the notion of minimal Government interference in people’s private lives, but I think that the voluntary questions are useful additions to the census, and I will be happy to answer one of them, albeit digitally.
It is interesting that, when the Office for National Statistics looked at the legislation in England and Wales, it said that the inclusion of a “Prefer not to say” option might improve the response rate. We shall see what questions are put before us.
There is a shortage of meaningful data when it comes to information about the lesbian, gay, bisexual and transgender community in Scotland. Our public services need such data for making funding decisions and delivering service plans across health, education and social care services. We frequently hear that all those areas are underdelivering in the community.
As a co-convener of the Parliament’s cross-party group on LGBTI+, I find that much of the research that I am presented with comes from third sector organisations such as Stonewall and LGBT Youth Scotland. Robust national data would allow public bodies to make better decisions. That is important, because we know from research that LGBT young people in Scotland experience higher levels of mental health problems, that nearly half of LGBT young people rate their school experience as bad, and that a quarter of LGBT people face issues in their place of employment. The data will help the Government to make decisions.
After the bill has been passed, Parliament will have two tasks ahead of it. First, NRS will present us with the new voluntary questions for our approval. It is absolutely right that the questions should be the right ones, that they make sense, and that they are accompanied by appropriate guidance on how to answer them. A person who identified themselves in the old census using the sex question may now use the new voluntary questions as a means of doing that. We have to ensure that high levels of data are returned and that the quality of the data is reliable. Therefore, the devil will be very much in the detail.
The second and more important task ahead of us relates to the more difficult debate on gender recognition. That is not a debate for today, so all that I will say on the matter for now is this: please let everyone’s voice be heard in it. Let us collectively, as a Parliament, condemn threatening or abusive behaviour wherever it appears, and from whomever it comes. If we are going to get it right—we must get it right—we must lead by example. I will do my bit, and hope that we will all do our bit.15:59
Claire Baker (Mid Scotland and Fife) (Lab)
I am pleased that we are debating the Census (Amendment) (Scotland) Bill at stage 3, as part of the preparation for the 2021 census. As the opening speaker for Labour, and as a member of the Culture, Tourism, Europe and External Affairs Committee, I thank everyone who provided evidence throughout the bill’s stages and those who provided briefings for today’s debate.
During the stage 1 debate, I highlighted a number of drafting issues with the bill, and I am pleased that they were addressed by amendments at stage 2. We now have an important bill in the evolution of the census, and there is recognition of the need for relevance through the introduction of questions on sexual orientation and transgender status and history in an appropriate manner.
However, it has not been a smooth journey. The bill’s progress took place against the backdrop of anticipated changes to the Gender Recognition Act 2004. At times, the debate has been too divisive, aggressive and intolerant of alternative views. There will be time for parliamentary scrutiny and debate, and it is our duty to approach that work in an inclusive and responsible manner.
I return to today’s bill and the census. The bill suggested that the terms of sex and gender would be conflated, which appeared to pre-empt the decision on any proposed changes to the sex question. The guidance that was provided with the bill added to such concerns, as the policy memorandum said:
“Looking forward to 2021, consultation has identified the need for a more inclusive approach to measuring sex. The sex question being proposed for the 2021 Census will continue to be one of self-identification and will provide non-binary response options.”
National Records of Scotland provided additional written evidence to the committee, which said:
“We are currently considering whether or not to have a non-binary response option for the sex question, but it is too early to say if this will be the final proposal as testing and consultation continues.”
That position was confirmed by the cabinet secretary during her evidence. The lack of clarity during our scrutiny of the bill was unfortunate, and it resulted in the committee taking considerable evidence on that issue, even though it is not the subject of the bill. However, important matters were raised that should inform National Records of Scotland in how it takes forward the next stages of the census.
There are questions to be addressed about the changes that were made to the guidance that was provided for the 2011 census, which made it clear that trans people should answer with their self-identified sex. It is important to recognise that the sex question is mandatory, and that answering it was difficult for transgender people; answering the question with their lived identity is consistent with how they present in other areas of their lives. However, there are arguments that the change has introduced a degree of uncertainty into the data that is gathered, and that sex and gender identity are now conflated into one question. The committee heard a proposal that there should be two questions—one on sex and one on gender identity.
I understand the concerns that were raised by the Equality Network, which said that reversing the position that was taken in 2011 would be highly problematic. Transgender people have legal rights to privacy, dignity and respect, and the organisation argued that it is not appropriate to insist that people disclose their biological sex at birth. Murray Blackburn Mackenzie argued that such an approach damages data integrity and quality, and that it sets a precedent for other data-gathering exercises and surveys, resulting in the loss of robust data on the protected characteristic of sex.
How do we resolve the situation that has already been created? We can reflect that there should have been discussion and scrutiny prior to the changes in 2011, and we can learn from that experience, but I would be hesitant about reversing the decision.
By including questions on trans status and history, the bill should enable policy makers and anyone else who is interested in the data to cross-reference responses and extrapolate figures based on sex and on gender identity. At the next stages of the census process, I would like reassurances on that point.
The committee, by majority, voted to retain a binary sex question. Although I abstained on the vote, given that the issue was not the focus of our work at hand, a majority of committee members were persuaded by the evidence that we heard from experts who use the information that is gathered from the census.
I raised an issue on that matter at stage 2, to which the cabinet secretary might wish to respond. I understand that the choice with which a non-binary person is presented does not reflect their lived experience. However, the NRS said that it would just assign a sex to the respondent. It said:
“If we ask a non-binary question—that is the big if and is obviously something for the committee to take a view on—we do not propose to produce outputs on a non-binary basis. In our conversations with stakeholders, we have always been consistent that it is about allowing people to respond in a way that reflects how they identify but that we will still produce outputs on a male and female basis.”—[Official Report, Culture, Tourism, Europe and External Affairs Committee, 20 December 2018; c 43.]
I would welcome clarity on what purpose a change to the binary question would serve. The response from NRS also makes assumptions about the number of people who would chose a non-binary term. I appreciate that NRS will undertake testing of the questions, but the number of people who will respond to the question, and how, is unknown. I ask the cabinet secretary to respond to those issues in her closing remarks.
I look forward to this afternoon’s debate.16:04
Ross Greer (West Scotland) (Green)
Given the volume of amendments to some other recent bills, it has been a while since we have reached a stage 3 debate and been in the position of saying essentially the same things that we said at stage 1. However, despite the much wider debate that specific census questions play into, the Census (Amendment) (Scotland) Bill is not a contentious bill. It is short and really quite simple, and the Greens support it from the point of view of both effective data collection and the improvements that it makes in ensuring that Scotland is a country where everyone is treated with dignity and respect by the state.
The bill’s purpose is to ensure that everyone feels able to accurately complete the census—a principle that finds consensus here in Parliament. It will allow questions in future editions of the census regarding sexuality and what we are now referring to as trans status and history to be asked appropriately—namely as voluntary questions, rather than mandatory ones.
Compelling someone to provide an answer on something as intensely personal as their sexuality or trans status would be wrong even if we lived in a society that was free from bigotry, but it is clear that we do not live in such a society, as was brutally illustrated by the monstrous attack on two queer women on a London night bus just last week and in the stories that members of the trans community told outside this Parliament just a few hours ago.
At the same time, though, the opportunity to collect that data from those who are happy to provide it is an opportunity to meet the needs of those who too often go unnoticed and unsupported. It is a small change to something that happens once a decade, but it is part of a process to ensure that people’s identities are respected, particularly when they engage with public services.
During its stage 1 deliberations, the committee received submissions in support of the bill and of trans inclusion more broadly from many national and long-standing equality organisations including the Scottish trans alliance, Stonewall Scotland, Engender, Rape Crisis Scotland, Scottish Women’s Aid, Close the Gap and Equate Scotland. I particularly thank the Equality Network for its evidence, for its helpful suggestion of an amendment, which the committee agreed with and the Government delivered on, and for its work in organising the powerful rally outside Parliament today, where the voices of trans people and their supporters across the Parliament were heard.
As I mentioned in the stage 1 debate, though, I am not the only one to have been frustrated and saddened by the process surrounding the bill and our committee consideration of it. I acknowledge that National Records of Scotland asked the committee to consider the potential questions, which will come through the census order after the bill is passed, but we should acknowledge the upset and anxiety that have been caused to many vulnerable people by the digression of the debate into matters that are outwith the scope of the bill.
At times, the very validity and existence of trans and non-binary people was called into question. I feel some shame that my Parliament has caused some of my friends stress and a fear that their rights, rather than being enhanced, could be rolled back. What should have been a small technical amendment to the Census Act 1920 to ensure appropriate wording has become an avenue through which a major debate has played out—and, to be frank, I do not think that it has played out in a way that any of us can be happy with. We can do better than the false framing of trans rights versus women’s rights, as all Scotland’s leading women’s organisations have so ably shown us.
I hope and expect that, when the Gender Recognition Act 2004 comes before us, we will do better than to hear evidence from just a single trans person. I certainly hope that those women’s organisations, such as Scottish Women’s Aid and Rape Crisis Scotland, will be invited to present their wealth of evidence and experience, showing that their trans-inclusion measures have not undermined the rights of cisgender women.
Legitimate concerns were raised through the consideration of the bill and they should be addressed in the broader debate on the introduction of trans-inclusion measures. How such measures intersect with services for women, including women-only spaces, is one example. As Scottish Women’s Aid and Rape Crisis Scotland highlighted in their written evidence once it became clear that that was where the debate had turned, their experience in providing support services in a trans-inclusive manner for women who have experienced violence has given them rich evidence. Their letter to the committee stated:
“It is very clear to us that trans inclusion in our own organisations has not given rise to substantive concerns or challenges. Rather, trans women have added to our movements through their support, voluntary work and as staff members”.
Some questions that were raised were very much within scope, particularly around data reliability and comparability. It was suggested that questions being completed on the basis of self-identification, which is existing practice, and the inclusion of a third option in the sex question would harm the overall data set and in turn affect, for example, planning of sex-based services. I believe that the fears there are misplaced. I point in particular to the submission from the head of engagement for NHS National Services Scotland, which is the body that oversees the patient information database. The NHS uses its own data rather than the census data in service planning, and it already collects patient data on the basis of self-identification without issue. The coalition of national women’s organisations, which has extensive experience with that type of data, stated that collecting the information in a trans-inclusive fashion would be beneficial.
I dissented from the committee’s stage 1 conclusion in favour of a binary sex question. Like the respected women’s and equalities organisations that I mentioned, I support a third option. Its inclusion would allow more people to complete the census and, as National Records of Scotland found, it would increase response rates, despite the conclusion in the committee’s stage 1 report claiming the contrary. That option could allow us to gather valuable data on a small and vulnerable group for whom we cannot practically gather that information in any other way, and it would not negatively affect anyone else.
I do not know whether Mr Greer noticed but, in the evidence that we received, National Records of Scotland said that, if there was a third option, it would just assign a sex, so it seems as if the NRS would not actually gather any data on the group that presented as non-binary.
That is why I said that the option “could” allow us to collect that valuable data. That is a choice that could be made. It is a policy choice for National Records of Scotland or the Scottish Government. Alternatively, the Parliament could make a decision on whether to reallocate the people whose data is collected in that group between the male and female categories. The point is that the collection of the data does not negatively affect anyone else. Indeed, for all other purposes, as the member mentioned, that random redistribution into male and female categories will happen. Therefore my question remains: why not make a change that positively benefits a small and vulnerable group at no cost?
As Claire Baker did, I ask the cabinet secretary to reflect in her closing remarks on whether the sex question—whether or not it has a non-binary option—will continue to be on the basis of lived sex, as has been the case previously.
I hope that, as the process moves forward, all members take the opportunity to listen to those whose lives and identities we are discussing. One role of the Parliament is to lift up the voices of Scotland’s most marginalised, and the bill is one small opportunity to do just that, which is why I support it.16:11
Tavish Scott (Shetland Islands) (LD)
As others have observantly noted, the bill is somewhat short, with only three sections, so I am more confident than usual that everyone in the debate will genuinely have read the whole thing, which is possibly not something that we will be able to say about the Planning (Scotland) Bill when we consider it next week. However, as the cabinet secretary correctly observed, the bill’s brevity does not translate into a lack of importance. Getting the census right is a once-in-a-decade task that is laid before the Parliament of the time. Just as with the previous census, the results of the next one will be reflected on for many decades to come.
Before I deal with a couple of points in the bill, I want to associate myself with the motion that was recently lodged by Jenny Marra and widely supported by members across the Parliament. As Jamie Greene and Ross Greer said, one issue that has hit the headlines or has at least been a feature of social media traffic is the importance of the census producing accurate information about sex and gender identity as a precursor to the wider legislative proposals that the Parliament will consider on those matters in due course.
This national Parliament, above all places, should not tolerate threats, intimidation and physical violence against women who articulate a view on the definitions of sex and gender. We must surely make a joint, concerted and strong stand against what happened recently at the University of Edinburgh in that regard, as Jenny Marra’s motion rightly does. Someone who was involved in the university debate told me:
“This whole situation is distressing, and most distressing of all is the sense that those of us arguing for a rational debate, that allows arguments against simply replacing sex with gender identity across law and public policy to be properly heard, are being left vulnerable to defamation and threats of violence.”
Any sympathy that I have for an argument evaporates when some of those who purport to make it behave in the way in which I understand happened. We cannot and should not tolerate that. That is not the Scotland that I want and it is surely not the Scotland that the Parliament wants. A rational debate about rights needs to be just that—rational.
It is important to be clear on what we are talking about today. As a result of the bill, the 2021 census will be equipped to gather more data about people’s gender identification and sexual orientation. Of course, the actual questions that will be asked will be considered via secondary legislation in the form of a census order, and no doubt there will be further important debates on exactly how those questions are worded, which will be for later. However, during this debate, I have listened to those who have argued about how we shape the bill in order to get the census right.
Arguments have been made about the importance of robust data, and it is important to reflect on the policy memorandum, which explains that
“Government, local authorities, health services, the education and academic communities, the third sector, commercial businesses, and others need reliable information on the number and characteristics of people and households if they are to conduct many of their activities effectively.”
That seemed to me to reflect the overwhelming weight of evidence that I and committee colleagues heard over recent weeks. Ensuring that bodies are equipped with robust data in order to carry out their services is therefore the overwhelming purpose of the census.
There have already been important reflections during the debate about how we ensure that the data is robust, with Ross Greer adding his perspective on that. I recognise the arguments that have been made about the importance of representation. The census will collect information that will be relied on. It is important, therefore, that the snapshot that will be taken is able to accurately reflect Scottish society as it is at the time.
The trans community needs to be included in the census. That community deserves not just to be seen in the census but to be counted accurately in it. Those are the first steps to people having their rights realised, whoever they are and in whatever way, across Scotland. Our records do not know enough about the trans community. With the passing of the bill before us and other bills that will come, that will surely change and change for the better.
I believe that the bill is capable of doing what it was set out to do. That is surely to design a census that collects important sociodemographic information that is used in the design and delivery of public services. On that principle, we will very much support this measure.16:16
Joan McAlpine (South Scotland) (SNP)
Before I start, I associate myself with the remarks of Claire Baker, Jamie Greene and Tavish Scott in urging a civilised debate on these matters and in condemning all violence or threats of violence against women, as outlined in Jenny Marra’s motion.
I thank the committee clerks and all the witnesses who gave evidence for our scrutiny of the bill.
I support the bill. Both sexual orientation and gender reassignment are protected characteristics under the Equality Act 2010, and it is appropriate to ask about them in the census on a voluntary basis.
Sexual orientation should be simple to quantify and data should be produced that is useful to our understanding of society. Trans status is more complex. As well as including transsexuals who have surgery after psychological therapy, Stonewall’s trans umbrella includes people with no medical treatment who refute the contention that they have a psychological condition. It includes transvestites and non-binary identities, and it will be interesting to see how the census question captures meaningful information about this very different group of individuals.
I want to explain briefly why some feminists find the concept of gender identity problematic. In her book “The Second Sex”, the philosopher Simone de Beauvoir argued that gender was a social construct, not something innate. Some so-called feminine characteristics such as passivity, concern for appearance and types of dress are roles that we adopt, not who we are. Feminists believe that a boy can like pink and play with dolls, and he is still a boy; and that a girl can like toy trucks and crop her hair, and she is still a girl. To suggest that those who do not conform to those gender stereotypes must be a different sex is troubling for some feminists.
I reject the concept of innate gender identity, but I will vote for the bill in a spirit of pragmatism and compromise. I accept that, for a growing number of people, identity is of deep personal significance.
Sex is a protected characteristic under the Equality Act 2010, and it has been a census question for 200 years. It is particularly important for women that sex is recorded accurately, because it is women who face most discrimination based on their sex. We also need to record sex to plan services such as health. The book “Invisible Women: Exposing data bias in a world designed for men” by Caroline Criado Perez—a favourite of the First Minister—demonstrates that bodies differ not just in terms of reproductive systems but in many other ways, for example in the presentation of heart disease.
The proposed non-binary sex question was rejected by the majority of the committee and, crucially, by the Office for National Statistics. The ONS conducted a robust equality impact assessment on the census, whereas the same exercise by NRS was inadequate. For example, it did not consider sex as a separate characteristic.
The sex question should also be based on biological sex, in my view. In 2011, without any public scrutiny, the census included online guidance that said that the sex question could, for the first time, be answered according to how people felt. The briefing from Murray Blackburn Mackenzie points out that that decision was based on a flawed private consultant’s report that erroneously said that sex included gender reassignment. It also points out that as we have no idea how many trans-identifying people—including non-binary—live in Scotland, no amount of testing by NRS can tell us how the data might be affected in 2021 by a self-identifying sex question.
Professor Susan McVie, chair of quantitative criminology at the University of Edinburgh, who sits on the Government’s board for official statistics, told the committee that the self-identified question in 2011 was a mistake. In a further letter this week, she said:
“The conflation of sex and gender identity goes against existing inequalities legislation and risks the construction of inaccurate and corrupted data.”
The inclusion of a trans question for the first time means that people can express their identity and answer the sex question accurately. I am not convinced by briefings that refer to “lived sex”. There is no definition of “lived sex” in either law or biology.
It has been suggested that feelings may be hurt if transgender people have to answer a question on biological sex, but there are other census questions that people could find distressing, such as those on mental health or disability. People answer them knowing that the census remains confidential for 100 years. Trans people will, of course, have to reference their birth sex on other occasions—not least in relation to medical treatment.
I hope that the cabinet secretary will take my points on board and, more importantly, the expertise of Professor McVie, Murray Blackburn MacKenzie and the Office for National Statistics. The census is the gold standard of statistics, and it is important that it is committed to both accuracy and material reality.
The Presiding Officer
I call Annie Wells, to be followed by Stuart McMillan. I encourage members to keep to four minutes.16:21
Annie Wells (Glasgow) (Con)
I thank all the organisations that kindly sent briefings ahead of the debate. It is only right that the census reflects the views of modern-day society, which is why I will support the bill at stage 3 today.
Things have moved forward since stage 1, and I am pleased to see that clarity has been provided during stage 2 on how questions on sexual orientation and gender identity will be formatted. I welcome further engagement on the wording of such questions, and the fact that the Parliament will have the opportunity to consider future questions once they are finalised.
The census is no insignificant task. Completed every 10 years—the next one is scheduled for March 2021—it gives us a complete picture of the nation, providing information that is needed by Governments in the UK to develop policy, plan and run public services, and allocate funding.
The census provides an opportunity to build on existing data so that public authorities can fulfil the public sector equality duty and consider the full needs of protected groups under the Equality Act 2010. Times have moved on. More and more people are openly identifying as LGBT, and it is only right that the census reflects that. The bill will allow National Records of Scotland to alter the current census to vary the questions it asks, resulting in the inclusion of questions on prescribed aspects of gender identity and sexual orientation.
It goes without saying that that all needs to be done with care and consideration. After all, the purpose of the census is to collect data that is accurate and reliable. Questions should be clear and straightforward, and given the need for individuals’ privacy, they should be answered only on a voluntary basis without the threat of penalty. We have to understand that not everyone will feel comfortable with providing the information, and that in homes where the form is being completed by the head of the household, young people in particular may not want to disclose their sexual orientation or gender identity. I am therefore pleased that those questions will be voluntary, and that National Records of Scotland has committed to ensuring that individuals can submit a private response to the census to replace any response submitted on their behalf.
I am also pleased that, at stage 2, the cabinet secretary altered the bill to place trans status and history as an entry on their own, alongside religion and sexual orientation, removing concerns about the perceived conflation of gender and sex.
It is reassuring to see that NRS worked with the Equality Network and others on the specific text of the amendments before they were lodged and that no issues were raised with stakeholders, including the women’s groups that provided evidence at stage 1. Significantly, it is also welcome that, given that the actual inclusion or wording of any such questions is not within the scope of the bill, that will be subject to further engagement with NRS and stakeholders.
I am also reassured by the fact that the Scottish Parliament will have the right to consider and reject a future question should it see fit, meaning that all evidence can again be duly considered.
I reiterate my support for the bill at stage 3. This is a short but much-needed bill that will allow the census to reflect modern society. I hope that, by passing the bill, we can build on existing equality data and assist public authorities in fulfilling the needs of protected groups.16:25
Stuart McMillan (Greenock and Inverclyde) (SNP)
The bill, which is largely technical in nature, has caused a stir in terms of public debate. The bill simply seeks to amend the enabling powers in the 1920 act and, as has been stated by the cabinet secretary, a period of informal engagement with the committee regarding the questions will begin after stage 3.
My focus today is solely on the contents of the bill and what it is intended to do, but I will touch on one other aspect. I welcome the passage of the bill through Parliament and recognise how important it is to help keep the census up to date with society. During the passage of the bill, I realised that I was the only committee member who was on the committee that scrutinised the order for the 2011 census 10 years ago. I was struck by how much society has changed in those 10 years. Society is more open and tolerant, but there is still a long way to go. The bill, which will allow the census to deal with today’s society and beyond, is therefore important.
Ross Greer touched on the aspect of the census that concerns the voluntary question on transgender status, and talked about the issue of the NHS using its own data. Section 17 of the policy memorandum touches on the issue of the lack of data around people’s transgender status. I can understand why the NHS will want to use its own data. First, other data is not there at the moment; and, secondly, when the census takes place in 2021, it will record the data at that time, and things will change hugely in the ensuing 10 years.
During the stage 1 debate on 28 February, I quoted paragraphs 11 and 75 of the committee’s report. Paragraph 11 says:
“The Committee agrees that there has been considerable social change with regard to issues concerning sexual orientation since 2011.”
Paragraph 75 contains this quotation from the cabinet secretary:
“The census does not lead public opinion; the census has to reflect society as it is just now and ask questions that maximise the response rate so that the data can be used.”
Those statements were absolutely correct at that time; they are now; and they will be in future.
The bill recognises the importance and sensitivity of the new questions and it tries to mitigate concerns about intrusion into private life by placing the questions on a voluntary basis. The main policy aim of the bill is not to facilitate the asking of questions about transgender matters and sexual orientation but to make answering those questions voluntary, just as the religion question was placed on a voluntary basis by the Census (Amendment) (Scotland) Act 2000. The other census questions are compulsory.
I am genuinely pleased that this technical bill will be passed today, and that we will have a census that is fit for 2021—a census that can be delivered, that people can fill out, from which data can be gathered and that people can trust and have faith in. As colleagues have indicated, there will be plenty of time to discuss the gender recognition issues.
I echo the calls from colleagues across the chamber for people to carry out these discussions with respect and in a calm and professional manner. People’s views will differ, and it is important that all views are heard.16:30
Tom Arthur (Renfrewshire South) (SNP)
Given some of the issues that we have touched on in the debate so far, it would be easier either to speak only for 30 seconds or for 30 minutes. I thank the committee for its work and endeavours in getting to a point at which we can debate at stage 3 without any amendments. I thank the organisations that gave evidence to the committee and provided briefings ahead of the debate. They have helped to inform my understanding.
To some extent, the bill’s importance and significance are in inverse relation to its size. Many members have touched on that point, including Jamie Greene and Ross Greer, who described it as a short and simple bill. However, issues that are short and simple can perhaps find the fissures in our public discourse and considerably expand them. I agree entirely with the general principles of the bill; to an extent, the debate is a rehash of the debate that we had at stage 1. The bill places on a statutory footing the voluntary questions about sexual orientation and trans history, which is welcome.
I welcome the fact that the 2021 census will be predominantly digital, with provisions in place for people who are not able to participate digitally. It will be interesting to see the implications that that has for expediting the production of the data. I will be fascinated to see the data that emerges from the census. The 2021 census comes at a significant time not just for Scotland but for the world. I do not want to talk about tension but, in many quarters, a strong dialogue is taking place between different generations. Generation Z—those born in 1996—are now coming of age. Millennials like me, born between 1980 and 1986, are not quite at the knacker’s yard, although it sometimes feels like we are heading that way. Do not worry—I will not go on to generation X, the baby boomers or the silent generation. I say “Hi” to James Dornan.
When it comes to shaping public policy, the data from the census has significant real-world implications. As Tavish Scott said, every decade, we have a task in getting the census absolutely right. The process of the bill has been commendable. I hope that the tenor that has characterised how the bill has moved through Parliament will inform the conversations and discussions that we will have in the next parliamentary year, when we look at the census order. I do not envy those who are charged with devising questions, as it is a complex issue. Identity is a complex issue. However, although a census is an event, it is also a cumulative, intergenerational process.
The 2011 census included a welcome question on carers, and, in that census, 429,000 people identified as carers. In a subsequent Scottish health and care experience survey, 759,000 people identified as carers. There were a number of complex reasons for that. During carers week, it is appropriate to highlight that not everyone who is a carer realises that they are a carer, so there is a constant need for work and guidance to help people to understand the questions that they are being asked and to understand the relevance to their circumstances and experiences. I hope that, as we progress towards the census and consider the questions later in this parliamentary session, we will continue to take a moderate and considered approach.16:34
Pauline McNeill (Glasgow) (Lab)
I join other members in thanking the committee for its hard work in reaching this point and making things relatively straightforward for the rest of us. I associate myself with the remarks of Tavish Scott and others about the importance of having such a debate with respect and dignity, which should be applied universally.
The purpose of the bill is to allow questions on sexual orientation and prescribed aspects of gender identity to be answered on a voluntary basis. It is a big step but an essential one, because no one should be fined for not answering. As the cabinet secretary said, the bill will be followed by Scottish statutory instruments. There is always a catch—there are always SSIs.
Had the member been listening to the debate—I noticed that she was in conversation with her colleague for the first three quarters of an hour—she would know that it is not the same procedure as for any other SSI. The Census (Amendment) (Scotland) Bill introduces a different procedure that is not like any other procedure. When the final questions come, the role of the Parliament and, particularly, the committee will be quite different from their role in relation to regular SSIs.
Oh, well—that will teach me. I apologise to the cabinet secretary if she thought I was being flippant. I did not mean to be.
I recognise the importance of the census as a tool in understanding the make-up of society. We are fortunate that we have been running it for 100 years. All of Scotland’s citizens should feel able to complete the census. At the same time, the data collection purpose of the census allows Governments to adopt appropriate policies in providing services to the population.
In a helpful briefing, Stonewall outlined some of the important purposes of the bill as being to enable us to have authoritative data on lesbian, gay, bisexual and transgender people; to assist local authorities in meeting their statutory requirements, which change over time; and to inform the planning of service provision to advance LGBT equality. The data can be used to build an evidence base and to measure progress towards meeting equality outcomes, which is important. We lack that kind of information, and we need it to decide how to shape services for the LGBT community.
We desperately need the data for trans people, who face difficulties in their daily lives. As an MSP, I recently took on the case of a transgender woman who was advised, seven days before an employment tribunal, that she would no longer get the legal representation that she had been promised. I believe that there are issues for transgender people that are deeply rooted in employment law. It is a real experience for those people, and we should consider giving support in that regard. In a survey that was carried out in 2017, LGBT Scotland found that transphobia was seen as an issue by 85 per cent of LGBT people and that 41 per cent of young trans people had experienced a hate crime in the previous year.
In the previous debate—when I was listening—I asked the cabinet secretary whether she could clarify the definition of a household and be sensitive to the fact that many LGBT young people are not comfortable with telling their family what their identity is, so that we can be sure that we deal with that question correctly. I look forward to receiving an answer to that question.
Will the member take an intervention? Oh, she has finished.
The Presiding Officer
Perhaps the cabinet secretary can add that point to her concluding comments.16:38
Annabelle Ewing (Cowdenbeath) (SNP)
I am pleased to speak in this stage 3 debate on the Census (Amendment) (Scotland) Bill. I, too, thank the committee clerks and the Scottish Parliament information centre for all their hard work in connection with the bill.
As we have heard, it was not matters within the formal scope of the bill that were at issue, but wider matters regarding the wording of the mandatory sex question. That will fall to be agreed through secondary legislation, which I understand will be introduced next year.
Before turning to that issue, it is important to stress that there was consensus around the purpose of the bill. Specifically, all committee members supported the introduction of voluntary questions as to sexual orientation and trans status and history. The only issue that arose concerned the rather confusing drafting in the original version of the bill, which risked conflating sex with gender identity. However, the cabinet secretary made it clear that it was never the intention behind the bill to conflate sex and gender identity, and, as promised, she lodged amendments at stage 2 to rectify matters.
The cabinet secretary also confirmed her support for the committee’s recommendation that an individual’s privacy rights should be respected when they are completing the form. I am pleased to note—it will perhaps give Pauline McNeill some relief to know—that National Records of Scotland is developing a system to allow individuals to complete forms in private, which is important progress.
As I understand the position, the next steps on the bill will be for the committee and wider stakeholders to have close engagement on the wording of the voluntary questions. I look forward to that process.
It would be remiss of me not to mention the wider debate that was generated on the mandatory sex question, even though, as I have said, it is not within the formal scope of the bill. Although the committee recognised the strongly held views on the matter, it nonetheless recommended—by a vote of six members in favour to one against, with two abstentions—that the mandatory sex question should remain binary. I entirely support that recommendation.
In that regard, evidence was received on the scientifically grounded theory of human sexual dimorphism, and we were reminded that sex is a protected characteristic under the Equality Act 2010. Witnesses also queried how any other approach could ensure that the census would adhere to the highest statistical standards and provide longitudinal consistency. As the committee’s convener has mentioned, Professor Susan McVie, the chair of quantitative criminology at the University of Edinburgh, has today said in a letter to committee members:
“The conflation of sex and gender identity goes against existing inequalities legislation and risks the construction of inaccurate and corrupted data that are not fit for the purposes for which the Census and other official data sources are required.”
It is important to reiterate the point that I made at stage 1 about how National Records of Scotland would proceed if there were to be a non-binary question under the mandatory sex question heading. Claire Baker has also raised the matter in this afternoon’s debate. However, the point gets to the crux of the matter, so I will mention again that the head of census statistics at National Records of Scotland, Amy Wilson, said in evidence to the committee that it would
“randomly assign people back into the male and female categories”
“still produce outputs on a male and female basis.”—[Official Report, Culture, Tourism, Europe and External Affairs Committee, 20 December 2018; c 43.]
That begs the question of what the point would be of including such a non-binary question in our national census—incidentally, a route that the ONS has recommended against being taken in England and Wales. That debate is for another day, but, given the considerable amount of evidence that was received on the subject, I felt it important to make mention of the issue this afternoon.
In conclusion, I stress my support for the Census (Amendment) (Scotland) Bill, and I look forward to voting for it at decision time.
The Presiding Officer
We move to the closing speeches.16:42
The debate has been interesting and has inspired conversations, as well as speeches in the chamber. While a debate is the final stage of the passing of a bill, in many ways this one has been the opening conversation on future debates on gender identity and the census, reform of the Gender Recognition Act 2004, and transgender rights. Although the debate has been wide ranging, we should not lose sight of what the bill will achieve. If it is passed, the census that will take place in 2021 will, for the first time, collect information on a person’s sexual orientation and transgender status and history—if they wish to answer the relevant questions.
The census strives to be accessible and relevant and to maintain integrity in its data. It is important that such questions are asked on a voluntary basis, which is a position that is widely supported. I understand that work is on-going to ensure individual respondents’ confidentiality and sensitivity to their needs, and I would appreciate an update on that work.
The census is important for public bodies to be able to make key decisions about resource allocation, policy development and how services are planned. By gathering such additional information, the needs of the LGBT community could be better served and understood, as Jamie Greene highlighted in his opening speech.
I return to the sex question. It is interesting to look at the work of the ONS, which is considering the same issue. It has concluded that there would be a risk to the data collected on sex if a third response option were to be added to that question. However, Ross Greer set out his belief that that question should be included and made arguments in support of his position.
As we are agreeing today, voluntary questions will be added on transgender identity, and the ONS thinks that it can meet the needs of that group. As Annabelle Ewing has just stated, the committee has proposed that the sex question in the Scottish census should remain unchanged. It is interesting that, depending on the results of its testing, the ONS proposes to add a caveat to its sex question, to explain that a gender question will follow later in the questionnaire. It has said that that has been found to increase acceptability among the transgender and non-binary populations. It would be interesting to hear whether that option has been explored in Scotland.
It is concerning that elements of the debate have become toxic. The situation has involved misrepresentation and accusations, which presents the Parliament with a challenging environment in which to consider the reforms to the Gender Recognition Act 2004, which form a parallel issue to the debate that has added an intensity to the discussion of the bill that was perhaps not expected.
Murray Blackburn Mackenzie’s briefing sets out concerns about what it describes as “Losing sight of women’s interests”. Joan McAlpine raised those issues. There is concern that the protected characteristic of sex is being diminished and even ignored. Those points must not be dismissed; they need to be addressed. We must not close down debate, and open debate must take place without fear or threat to anyone.
I have heard the comment this afternoon that society is changing but, to ensure that Scotland is a safe, welcoming and respectful country for everyone, we need to make progress with understanding and work to achieve consensus. Reform of the GRA is necessary and, although I accept that that is not the cabinet secretary’s responsibility, the Government needs to be clear about its intentions and bring the debate for parliamentary scrutiny.
The debate that is dominating public discourse often does not recognise other issues that affect LGBT people. The LGBT population is subject to multiple disadvantages in the workplace, in education and in civic Scotland. We know that prejudice exists towards the LGBT community and that physical and verbal assault is all too common. Access to appropriate health services is not always easy, and that is compounded by Scotland’s geography. As Pauline McNeill highlighted, LGBT Youth Scotland has reported that 84 per cent of LGBT young people and 96 per cent of trans young people feel that they have experienced a mental health problem.
LGBT people can face isolation from their families and communities. I fully recognise the concerns that have been expressed about what changes to the GRA will mean for women and girls and for women’s rights, but we must recognise that LGBT communities are often vulnerable and open to exploitation and assault. We need to chart a path through the debate in a sensitive and understanding manner that recognises and addresses the concerns of everyone about the impact of the proposed changes.16:47
Alexander Stewart (Mid Scotland and Fife) (Con)
I am pleased to close for the Scottish Conservatives in the stage 3 debate on the bill. It has been interesting to hear the contributions from across the chamber. As a member of the committee that considered the bill, I welcome the progress that has been made and thank all who contributed, gave evidence, supported the process and gave us briefings. The depth of feeling is obvious.
This is a short but important bill that will ensure that future censuses collect information that helps us to better understand modern Scotland and the people who live here, as Jamie Greene outlined. We have heard good and balanced speeches from across the chamber—from Tavish Scott, Ross Greer, Claire Baker and Joan McAlpine.
As has been discussed, the Equality Act 2010 requires public sector organisations to consider the needs of groups with protected characteristics when they deliver services and in their employment practices, for example. Organisations must have regard to the need to ensure that individuals are not discriminated against, harassed or victimised; the need to ensure equality of opportunity between groups; and the need to foster good relations between groups, which is vital. My colleague Annie Wells itemised that. We have heard about the strong views that organisations such as Stonewall have expressed in briefings about what should be done and how our debate should be informed.
To perform the duties that are placed on them, public sector bodies require reliable data on protected characteristics. However, significant gaps remain in the data on sexual orientation and gender identity. National Records of Scotland says that there is not currently a reliable data source on the size and locality of the trans community in Scotland. That is a major reason for requiring an update to the census legislation, and I believe that the bill will allow public sector organisations to fulfil their equality duties better.
It is worth noting that similar information is being considered south of the border. A UK Government white paper and the Office for National Statistics recommended that the 2021 census in England and Wales should include questions on sexual orientation and gender identity and that, as with our census, answering should be voluntary.
As my colleagues have outlined, the Scottish Conservatives want to ensure that the guidance on the questions clearly explains the difference between sex and gender identity, which are often conflated, and also that the questions on gender and sexual orientation are voluntary, with no penalties for those who choose not to answer them.
It is welcome that the wording of the questions will be tested, and that there will be consultation and engagement with National Records of Scotland and other stakeholders. However, we were still keen to ensure that a duty was placed on the Scottish ministers to review the success or otherwise of the proposed questions on sexual orientation and gender identity after they have been included as part of the next census. It is vital that that review happens.
At stage 2, Jamie Greene MSP lodged amendments on behalf of the Scottish Conservatives to seek to address some of those issues. Following discussion with the cabinet secretary, she indicated that, although the amendments could be lodged, she supported what they were trying to do and thought that there was little requirement to lodge amendments. We felt that that was appropriate and withdrew our amendments.
As we have already heard in the debate, the proposals have cross-party support and it has been great to hear what we have heard today. It is good for Parliament to have this kind of discussion, and it is good for Scotland to have this kind of discussion.
The changes that will be brought about by the bill also have the backing of organisations outside Holyrood, and we have had briefings from many of those organisations, saying exactly what they feel and what they think that Parliament should be doing to support communities outside Parliament. We had indications from the Law Society of Scotland, which welcomed the clarity that the questions will be voluntary.
In conclusion, we support the bill to include voluntary questions on gender identity and sexual orientation in future censuses, and we are content with the assurances that have been given. This will have a massive impact going forward. We believe that the bill is good for Scotland because it sets out exactly what is required. We look forward to seeing progress once the bill passes.16:52
I am grateful to my parliamentary colleagues here today for another useful debate on these sensitive matters. I am pleased that stakeholders, the committee and Parliament have supported the key principles of the Census (Amendment) (Scotland) Bill throughout the bill process.
It is right that the questions should be voluntary. It is also critical that all census respondents know that voluntary means just that and there will be no penalty for not answering the questions. From the beginning of the process, we have made it clear that the purpose of the bill is to remove criminal penalty from these questions and make them voluntary rather than the standard compulsory.
Work is in hand by National Records of Scotland to ensure that that is communicated, which includes embedding the words “This question is voluntary” in the text of the new questions, so that census respondents are not required to cross-refer to separate instructions to find that information. That was done with the religion question in the 2011 census. After discussions at stage 2, the registrar general also confirmed that he will make it clear in the covering message on the front of the census questionnaire, as well as in the supporting guidance. I am confident that the messaging that the questions are voluntary will be clear.
Stakeholders have been involved throughout the planning for 2021 to ensure that National Records of Scotland will ask the right questions in the right way. National Records of Scotland carried out a public consultation between October 2015 and January 2016 to understand what information users need from the 2021 census. It is worth stressing that the purpose of the census is to identify needs and to ensure that those needs can be met. We have had a number of good contributions about why we need more information, particularly about sexual orientation and transgender issues. A number of the contributors to the debate made that point, including Claire Baker and Jamie Greene and others. Work has been done directly with a wide range of stakeholders, involving thousands of people from across Scottish society.
The bill process has highlighted that we must continue to ensure the identity of all individuals and groups that have an interest in census matters and ensure that new relationships are developed between them and National Records of Scotland.
It is also critical that stakeholders continue to be kept informed and, where possible, are able to influence plans up until census day.
Pauline McNeill raised the issue of households. I replied to her after stage 1 with information, but I will also copy to her the information that we gave to the committee, particularly about the sensitivities for households—especially individuals who may not have come out to the rest of the family but who want to take part in the census—and how work will be done to respect confidentiality and be discreet.
The census bill has been the first direct involvement in Scotland’s 2021 census for the Scottish Parliament and it has clearly stimulated debate and interest in the census as we move forward to the subordinate legislation process. We have the critical requirement that a census order and census regulations have to be in force before we can have a census in 2021, which will involve extensive work by the committee. I appreciate the work that it has put in to date, but a considerable amount of work on those orders and regulations will be required. Work is already being progressed with the Culture, Tourism, Europe and External Affairs Committee to ensure that it has the necessary information this year to thoroughly and appropriately consider these matters.
Passing the census bill will mean that we can ask questions on sexual orientation and transgender status and history on a voluntary basis, but Parliament will still have to agree that the questions will be asked in the 2021 census. I detect from the contributions today that there is a willingness and appreciation that that should be the case. Other questions and other census matters will be considered by the committee and wider Parliament as we progress through the process. The questions are clearly a critical part of the census.
National Records of Scotland is currently planning the whole operation for a successful digital census in 2021. There are only 648 days to go until census day, but the responsibility and influence of Parliament does not end at census day. In my opening speech, I mentioned that National Records of Scotland plans to process and output census data. The registrar general will prepare reports on the census returns, including on data content and operations, and lay them before the Scottish Parliament at the appropriate time after the census.
In addition to those specific reports, the registrar general will prepare a comprehensive report on the overall census operation. It will include an evaluation of the new questions that will be asked in 2021, including the voluntary ones on sexual orientation and transgender status and history, and will also be brought to Parliament for consideration. As members can see, National Records of Scotland has a thorough process in place to collect, process and output census data and also to ensure appropriate consideration and evaluation of those matters.
One issue that was raised in the committee report and in contributions from Ross Greer and Claire Baker is whether the sex question will be on the basis of lived sex. That issue is not the purpose of this bill and, indeed, I agree with Jamie Greene and his approach. The focus of his remarks was specifically on the bill’s content, reflecting the fact that considering the actual wording will come next, as part of the process.
Will the cabinet secretary give way?
I want to make my point here. I have already communicated to the committee that it is really important that people will have confidence in using the census data and also in completing the data honestly. That will be one of the issues with regard to the wording. I stress—and this is the point that I made to Pauline McNeill—that the issue will be for the committee to consider on the basis of all the evidence that is provided, including the further testing that is currently taking place and consultation with stakeholders. Only when those have been done can we determine what the question will be.
That is what is quite different about this process, compared with other processes. When I present the final census order, I will need to know that there will be agreement on the completeness of the order. That is why the NRS will need to work very closely with the committee to share the evidence of what works and look at comparisons with other countries including the rest of the UK and also Australia, Canada and other places where this will be taking place. That is the right way to go. I cannot definitively give Ross Greer or anybody else an answer, because that is the collaborative and co-operative process that will be involved in putting the census together.
I thank everyone who has contributed throughout the process of the census bill and to today’s debate. The 2021 census will be our first predominantly digital census, and for it to be successful, we must ensure that we ask the right questions in the most appropriate way. I repeat my thanks to all those who gave evidence to help to improve the bill during this parliamentary process and particularly to our colleagues in National Records of Scotland and the bill team. I commend the motion in my name.
12 June 2019
Final vote on the Bill
After the final discussion of the Bill, MSPs vote on whether they think it should become law.
Final vote on the Bill transcript
The Presiding Officer (Ken Macintosh)
The first question is, that motion S5M-17645, in the name of Fiona Hyslop, on the Census (Amendment) (Scotland) Bill, be agreed to. As the question is on passing a bill, there will be a division.
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harris, Alison (Central Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 115, Against 0 Abstentions 0.
Motion agreed to,
That the Parliament agrees that the Census (Amendment) (Scotland) Bill be passed.
The Presiding Officer
The Census (Amendment) (Scotland) Bill is therefore passed. [Applause.]
The final question is, that motion S5M-17672, in the name of Graeme Dey, on approval of a Scottish statutory instrument, be agreed to.
Motion agreed to,
That the Parliament agrees that the Private Housing (Tenancies) (Scotland) Act 2016 (Modification of Schedule 1) Regulations 2019 [draft] be approved.
12 June 2019