Scottish Government guidance that allows people to ‘self-declare’ as a member of the opposite sex in the national census is unlawful, Fair Play for Women (FPFW) has argued at a judicial review.
Representing FPFW, Roddy Dunlop QC told the Court of Session that abandoning the legal requirement for people to enter their legal sex on the census undermines legislation put in place by the UK Parliament.
The new guidance from the National Records of Scotland (NRS) permits respondents to enter a different sex to the one on their birth certificate, without having first obtained a Gender Recognition Certificate.
‘Binary and immutable’
Dunlop said: “The concept of sex is generally associated with the idea of biological differences which are binary and immutable.”
He continued: “If that’s so, it’s simply impossible for the court to hold ‘well, the world has moved on and there’s now a general appreciation that people can change their sex’. There is not such a general appreciation.”
The Dean of the Faculty of Advocates argued the “suggestion” that a “person’s sex may change just as soon as that person self-identifies with a different gender entirely undercuts the statutory regime that Parliament has deliberately put in place”.
Douglas Ross QC, representing the Scottish Government, claimed the idea that sex is “fixed and immutable” from birth was “rigid and unaccommodating”.
Ignores the law
Recently it emerged that the Equality and Human Rights Commission (EHRC) notified the NRS in November that requiring a person to enter their legal sex on the census return would not be in breach of their right to privacy under the Equality Act.
In a letter to the NRS, EHRC Chief Executive Marcial Boo said “where there is a requirement in statute such as for the census” any “potential interference with Article 8 rights arising from collecting data on sex and trans status is likely to be justified”.
Director of FPFW Nicola Williams described the revelation as “outrageous“. She added: “The High Court in England backed our position, and we are confident that the Scottish court will see it the same way.”
Court of Session judge Lord Sandison is expected to give a written opinion shortly.
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