SNP’s sexual identity question in census ‘unlawful’, court told
ALLOWING people to ‘self identify’ as a different sex on this year’s census is unlawful, a court was told yesterday.
The Scottish Government wants to allow people to answer the question on what sex they are based on their own view of what their gender is.
However, Advocate Roddy Dunlop, QC, yesterday told judge Lord Sandison that the plans, set out by Scottish Ministers, are against the law.
Mr Dunlop, who is acting for campaign group Fair Play for Women, said that preexisting legislation and case law surrounding the issue meant there are only two lawful courses of action to be taken with answering questions on sex.
The campaign group won a court challenge south of the Border last March, when a judge ordered that similar guidance be withdrawn days before the census in England and Wales.
Mr Dunlop said the first lawful course of action to be taken is for people to base their answer upon what is recorded on their birth certificate.
He told Lord Sandison the second lawful course of action would be for people to answer the question based upon what is on their gender recognition certificate.
People can acquire a gender recognition certificate if they can demonstrate that they are 18, have lived in their acquired gender for two years and have or had gender dysphoria.
The NHS website defines gender dysphoria as the ‘sense of unease that a person may have because of a mismatch between their biological sex and their gender identity’.
Gender recognition certificates arose as a consequence of the Gender Recognition Act 2004.
Yesterday, Mr Dunlop told the Court of Session in Edinburgh: ‘The distinction between sex and gender is recognised in law – for example in the Equality Act 2010 which protects sex and gender reassignment individually and separately as protected characin teristics. The position of the petitioner is you have the sex you’re born with and you have a gender recognition certificate – those are the two legal possibilities.’
A proposal by Scottish Ministers states people can enter a different sex to the one registered on their birth certificate – regardless of whether they have obtained a gender recognition certificate.
The proposal has been published guidance issued by the National Records of Scotland in August.
Transgender rights activists have welcomed the move, believing it will have no impact on the quality of data. They believe people should be able to answer in a way that reflects their normal everyday experiences.
But Fair Play for Women’s legal team say the guidelines fall foul of the 1920 Census Act and have launched judicial review proceedings. They want Lord Sandison to quash the guidance issued by the National Records of Scotland as it ‘approves unlawful conduct’.
They also want the court to issue an interdict preventing it from being ‘disseminated’.
Mr Dunlop said the Scottish Government was unable to alter the terms of the 1920 Census Act. He said the legislation meant people could only answer the question on sex based on their own biological identities or by having a gender recognition certificate.
Scottish Ministers are contesting the action.
The hearing continues.
‘It approves unlawful conduct’