Court rejects appeal and upholds Census guidance allowing trans men and women to self-identify their lived sex.
Three judges in the Inner House of the Court of Session today upheld a judgement last week in the Outer House, that Scottish Ministers acted within their lawful powers by approving trans-inclusive guidance for the ‘sex question’ on the next Scottish Census. The guidance says that trans men and trans women can answer the sex question in line with how they live their lives, whether or not they’ve changed the sex on their birth certificate.
The judgement means that the Census can now open next week for people to respond, with the trans-inclusive guidance in place. Similar guidance was issued (without challenge) for the last Census in 2011, meaning that there will be data consistency.
A group called ‘Fair Play for Women’ (FPFW) had applied for a Judicial Review to have the guidance scrapped, because they objected to the fact it does not tell trans women and trans men that they must answer with the sex recorded on their birth certificate or gender recognition certificate.
The case was originally heard by Lord Sandison on 2nd February 2022, and his judgement rejecting the FPFW petition was issued on 17th February. FPFW then appealed, and Lady Dorrian, Lord Malcolm and Lord Boyd heard the appeal yesterday. They issued their judgement today, and full reasons for it are expected to be issued tomorrow.
Scottish Trans were granted permission to intervene in the original hearing, in the public interest. Scottish Trans provided the Court with a perspective of how trans men and trans women would be impacted if the guidance were to be scrapped, and why it was the right thing, both in law and for producing the best quality data, to count trans men and trans women as who they are on Census Day.
Vic Valentine, Scottish Trans manager says:
“We are pleased that three judges have now upheld Lord Sandison’s ruling that the guidance produced to go alongside the Census is lawful. Scotland’s Census is meant to count everyone in Scotland as who they are on Census Day, and the guidance provided reassures trans men and trans women that this is the same for them as it is for everyone else. This is an important decision: clearly stating that all trans men and trans women are able to be counted on the Census as who they are, not just those who have changed the sex on their birth certificate.
“To change the sex on their birth certificate, a trans woman or trans man has to go through a stressful, lengthy and difficult process of applying for a Gender Recognition Certificate, that often takes many years. Yet trans men and trans women can update all of their other identity documents, be seen by family and friends as a man or woman, and be living their lives for many years completely as themselves before applying for one.
“We believe trans men and trans women who have not changed the sex on their birth certificate have the right to have their identity respected, recognised, and counted too, and welcome this decision.”
Scottish Trans were represented as interveners in the first hearing pro bono by the Scottish Just Law Centre at JustRight Scotland; Kay Springham QC was instructed as advocate.