High Court rules ONS must change census guidance

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(9th March 2021). 

A High Court judge has ordered that the Office for National Statistics (ONS) amend the guidance they provide for how people should answer the question about sex in the census.

Having initially agreed the wording of the “what is your sex” question in the 2021 census, the ONS later changed the guidance for the question to tell people to use the sex “recorded on one of your legal documents such as a birth certificate, Gender Recognition Certificate, or passport.”

Judge Mr Justice Swift said, “I do not doubt that the ONS has the power to publish guidance on the census questionnaire. It is expedient for its functions. However, if guidance is given it must match with the meaning permitted by the act.”

He continued, “This meaning is not the sex someone has identified. I am satisfied that the guidance is wrong. It does not match the question being asked.”

The challenge was brought by Fair Play For Women, who described the guidance as “sex self-identification through the back door.” The group raised £100,000 via a Crowdfunder campaign to bring the case to court.

The ruling today means the guidance must be changed to tell people to use the sex on their birth certificate or gender recognition certificate, rather than include other documents for which someone could self-identify their sex. This is a win for those defending reality, and the importance of collecting reliable data, and acts as a warning to public authorities that they can’t just decide for themselves what sex is.

It maintains the legal meaning of sex as biologically female or male (or legally in the case of those with a GRC) and does not open the door to allowing self-identification of sex. The census has a separate, optional questions about gender identity.

Mr Justice Swift also granted permission to seek a full judicial review, to be heard early next week, to establish if the guidance provided by ONS was unlawful.

 

Read more about our joint campaign Sex in the Census