Mr Justice Swift today ruled in favour of a legal challenge by Fair Play for Women (FPFW) against the Office for National Statistics (ONS) in a contentious interim hearing ahead of a judicial review about whether gender identity or legal sex should dictate the answer to the question “what is your sex?”
In a ruling with important implications, the High Court found that FPFW had a “strongly arguable case” and doubted the ONS’s claim that it should act as the sole arbiter of what the census question meant. The Judge went onto say that there could be no dispute that sex was an important demographic variable and ordered that guidance on the question of sex be amended in line with his ruling.
The ruling will come as a blow to the ONS who have faced mounting criticism over its changing stance on this issue and accusations it is unduly influenced by Stonewall. Speaking on Radio 4’s Today programme on 22 January this year, Professor Ian Diamond, the UK’s chief statistician said “The sex question is very simply your legal sex, there is then subsequently a question later which asks about gender identity”. Legal sex in this context means sex registered at birth (unless changed with a Gender Recognition Certificate obtained under the 2004 Act of the same name). In an apparent change of position, by the 17th February the ONS released material on the question of sex guiding participants to answer the question on the basis of “legal documents… such as a passport”.
A passport is different legally from a GRC and birth certificate because the sex information on a passport can be changed with a GP’s letter, rather than a GRC. Concern was also raised as to the use of the words “legal documents” on the basis the words could be interpreted to mean a far greater number of sources than birth certificate or GRC. It was this change which prompted Fair Play for Women to bring an action by way of judicial review against the ONS on 19th February. In a testament to the strength of feeling on this issue, FPFW were able to raise £100,000 in two weeks by way of a crowdfunder.
Despite knowing a judicial review was in the offing the ONS launched the online census on 22 February, 27 days before the official census day of 21st March in a move described by FPFW as “dirty tricks”. They argue that there was no mention of this move in any public communications on the matter and that it could only sensibly be interpreted as a litigation tactic designed to thwart the forthcoming judicial review. As a result, the High Court today considered the issue of the online guidance on an interim/emergency basis in advance of the full judicial review on the issue. Speaking to this issue, Mr Justice Swift expressed surprise that the one fifth of households had completed the census already when census day is 21st March.
It’s not the first time disputes in this area have arisen, as far back as 18th December 2019, 72 academics working in statistics and date voiced their concerns in a public letter over the public policy implications citing data reliability and development of sex specific social and medical services as two areas affected. According to a government response to a consultation on the Gender Recognition Act 2004 on 22nd September 2020 the official position is that the sex-based definitions should be regulated by the Act.
Dennis Kavanagh is a legal commentator and barrister (non-practising).