High Court: ONS must change census guidance on ‘legal sex’

The High Court has told the Office for National Statistics (ONS) that it must alter its guidance on answering the question on sex in the 2021 census.

Campaign group Fair Play for Women, which brought the court case, argued that the guidance could allow “sex self-identification through the back door”. The judge said he was satisfied that the campaigners were “more likely than not to succeed” regarding the legal meaning of sex as defined in the legislation.

The interim ruling was made ahead of a full judicial review next week. The review will be held three days before Census day on 21 March.


Plans to allow people to ‘self-identify’ as someone of the opposite sex on this year’s census were abandoned.

Respondents are required to enter their “legal sex” for the household questionnaire, rather than being able to choose their ‘preferred option’.

But ONS guidance stated that respondents should use the sex recorded on one of their legal documents “such as birth certificate, Gender Recognition Certificate, or passport” when answering the question “What is your sex?”

Conflation, confusion

Fair Play for Women said that only a birth certificate or Gender Recognition Certificate should be used, as a person’s sex could be changed on other documents without a formal legal process.

The lawyer representing the group, Jason Coppel QC, said the guidance “conflates and confuses” sex with gender identity and risked “distorting” data collected by the ONS on the question of sex.

more likely than not to succeed

Mr Justice Swift, in granting a judicial review, ordered the ONS to remove the words “such as” and “passport”. He also said that the group had a “strongly arguable case” on the “mismatch” between the guidance and legislation over legal sex.

‘Sex means sex’

Dr Nicola Williams, from Fair Play for Women, welcomed the High Court ruling and said it served as a warning to all public authorities that “you can’t just decide for yourselves what sex is”.

sex means sex, it’s not the same as gender identity

She continued: “This is a line in the sand to say that sex means sex, it’s not the same as gender identity.”

Dr Williams also said: “If we don’t have good data on sex we can’t monitor inequalities due to sex, and if we can’t measure it, we can’t make good policies to remedy it.”

For the first time in the history of the national survey, people over the age of 16 will be able to indicate their ‘gender identity’ in an additional, optional question.

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