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Trans men and women will be allowed to self-identify on Scottish census, court rules

Trans men and women will still be able to self-identify as their lived sex on the Scottish census, a court has ruled.

The Court of Session has upheld guidance supplied by the Scottish Government for transgender people filling out the questionnaire. It says they can fill out a question about what sex they are according to how they live their lives, instead of what their birth certificate states.

A group called Fair Play for Women applied for a judicial review to have the guidance scrapped, bringing the case to court on 2 February. 

Fair Play For Women objected to the fact the census guidance does not tell trans women and trans men that they must answer with the sex recorded on their birth certificate or gender recognition certificate — a legal document trans people can apply for when they’ve lived in their gender under certain terms and conditions. 

Lord Sandison, who delivered the ruling on Thursday, ruled ministers acted within their lawful powers by approving the trans-inclusive guidance for the question in the next Scottish census in March.

This clearly states 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

Vic Valentine, Scottish Trans manager

In the written ruling, he said that the way sex and gender are recognised by different public authorities – for example, DVLA and the passport office, reflects “the modern reality that sex was not generally now regarded as a pure matter of biology, but was instead a much more nuanced concept.”

Scottish Trans Alliance, who were granted permission to intervene in the case, argued trans men and trans women would be impacted if the guidance were to be scrapped.

The campaign group said 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.

“We are pleased that Lord Sandison has held that the guidance produced to go alongside the census is lawful,” Scottish Trans manager, Vic Valentine, said. 

“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. 

Valentine added the ruling is an “important decision” for the transgender community at large.

“This clearly states 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,” they added.

Scottish Trans were represented pro bono by the Scottish Just Law Centre at JustRight Scotland; Kay Springham QC was instructed as advocate. 

They argued that if the guidance was struck down, “it would be a backwards step, with potential harmful consequences to trans inclusion and equality.”

“We are pleased to have been able to support Scottish Trans to intervene in this case and that the written intervention provided helpful evidence to the court,” Jen Ang, director at JustRight Scotland said. 

“We look forward to continuing to support individuals and organisations in Scotland to participate in important legal cases, like this one – sharing their evidence and experience on issues of discrimination and inequality.”

Every household in Scotland is requested to fill out the census every ten years. People can complete the census online from 1 March.

Photo Credit: iStock/Sitthiphong

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