Transgender people need reliable census data to inform future planning for our needs.

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While transgender people have become much more visible in recent years, our numbers are harder to quantify. In 2011 GIRES reported that:

1% of […] employees and service users may be experiencing some degree of gender variance. At some stage, about 0.2% may undergo transition.

However, those figures were based on samples and estimates, and the GIRES research was completed eight years ago. Society has since moved on, and reliable data is needed, not least to inform the future needs of transgender people for specialist healthcare services.

The 2021 UK census needs to provide that data. However, sensitivity around the issues – and routine conflation of sex and gender – means that census questions must be carefully designed.

In England and Wales, the Office of National Statistics has already conducted extensive research and in December 2017, they reported that:

As a result of this work, we are still considering whether and how to collect information on gender identity, alongside continuing to collect information on male or female. This is particularly complex in meeting a respondent need for gender identity, a user need to measure the size of the transgender population while ensuring an accurate estimate of the male and female population.

Our research so far gives us confidence that collecting gender doesn’t have a negative impact on collecting information on male and female. We also know that there is a strong information need for separate information on the transgender population.

Further testing is planned in order to refine the question design and inform our recommendation about the inclusion of such a question or questions in the 2021 Census. To be clear, we have never suggested that people would not be able to report themselves as male or female. We have and will continue to collect this vital information.

In a recent consultation north of the border, the devolved Scottish Government heard that the sex question was not straightforward. In their evidence, the Equality Network and Scottish Trans Alliance said:

[In 2011] trans women were able to select “female”, and trans men were able to select “male”, regardless of whether or not they had received a Gender Recognition Certificate. The sex question recorded how they lived and identified, rather than either their legal sex (the sex on their birth certificate) or details about their physical sex characteristics. We welcomed this as being the appropriate way to apply the question to trans men and women.

There is no change proposed to this, and guidance will continue to be provided to transgender people to complete the sex question in line with how they are living. This will ensure continuity with the previous census, in the data collected within the sex question.

However, we do think that a change to the sex question is required. We recommend that a third option is added to this question, to ensure that non-binary people are also able to respond in a way that reflects how they live, rather than being limited to two options that do not accurately record this. This will ensure consistency in the guidance provided to transgender respondents, and provide non-binary people with the same opportunity to respond in a way that respects and affirms their lived reality, as is currently the case for trans men and trans women. This is particularly important as the sex question is a mandatory question on the Census, and there are no plans to change this. If there continue to be only “male” and “female” options, this will mean non-binary people are either forced to give an inaccurate answer, or will be more likely to not complete the Census.

Within this response, reference is made to:

• details about physical sex characteristics, presumably at birth (biological sex);
• the sex recorded on birth certificates (legal sex);
• how people live (social sex).

Social sex conflates the concepts of sex and gender to such an extent that the Equality Network suggested a third option for non-binary people. However, being male or female is rather more than how people might choose to identify. Those terms indicate our roles in procreation, something we share with other mammals. Biological sex is also the root of sexism and by ignoring sex we also ignore sexism. That would be a reckless oversight.

For trans people waiting years for medical treatment, transgender is more than a pink and blue flag, or a tick-box on a census. It is a massive part of our lives that can have a profound impact on us and our families. The wait times are now appalling. One Gender Identity Clinic reports on their website without irony or apology that:

Our current waiting time from receiving your referral to your first appointment is approximately 30 months. Following your first appointment, you can expect to begin treatment from around a further 26 months, however, each person will have different needs.

To generate maximum utility the census needs to step back and de-conflate sex from gender. Ideally – in order to provide fundamental data – it would ask two compulsory questions:

• what is your biological sex as recorded at birth? (male / female)
• what is your legal sex as shown on certified copies of your birth certificate? (male / female)

and one optional question

• what is your self-identified gender identity? (man / woman / non-binary / other)

By cross-checking answers the government would collect all the information they need in order to assess the experience and needs of transgender people, with or without legal gender recognition through a Gender Recognition Certificate (GRC).

However, the first question above would be problematic because the census is completed by household, so GRC holders would need to disclose the fact to the reporting individual. It also appears to be regressive since the previous 2011 census accepted target gender in response to the sex question.

It would be therefore appropriate to ask just two questions. A compulsory question on sex, and an optional question on gender identity:

• what is your sex? (as shown on copies of your birth certificate – male / female)
• what is your self-identified gender identity? (man / woman / non-binary / other)

Those questions would collect the same information, apart from a relatively small number of people with a GRC who had changed their legal sex. Those people would already be known to the government and their numbers can be accounted for separately.

Self-identified gender identity cannot be used in place of sex, because sex and gender are not the same. Sex is a protected characteristic under the 2010 Equality Act, and the government must be able to investigate the census according to sex. Sex is also binary and while some individuals do not identify with the gendered constructs that apply to their sex, they still have a sex. Corbett v Corbett (1970) established that sex is based in biology and not psychology.

When asking about sex, allowing alternative responses to male-female conflates it with gender. While sex may be difficult to identify in a very small number of intersex people, everyone is either male or female without exception. Intersex people do exist but they confirm the binary because individual intersex conditions apply to either males or females, and never both. For example MRKH is exclusive to females while Klinefelter syndrome only applies to males. Biological sex is binary and – currently – legal sex is also binary.

The census must offer that further optional question on gender identity to identify the transgender population, and then assess our prevalence and experience in society. Only by asking the questions separately can this information be gathered to assess the current situation and plan for future needs of transgender people. Non-binary people face specific challenges; they can be identified effectively by the question on gender identity, and not sex. Furthermore the experience of non-binary people may differ according to biological sex, but we would only know if sex and non-binary identity were collected through separate questions.

I am cautious about restricting the gender identity question to a man, woman or non-binary. As our understanding of transgender people develops, and language changes, individuals may use different terms to identify themselves. Non-binary covers people who identify with neither gender (non-gendered), both genders concurrently (bi-gendered), all genders (pan-gendered), and those whose identities change with time (gender fluid). Since the categories may change with time an “other” response along with a write-in box may be prudent.

The fluidity of the situation provides further reason for my concern not to conflate the questions on sex and gender identity. Sex is observable reality, and is the basis of the procreation of our species. Gender identity is not properly understood and it cannot be defined without recourse to circular reasoning or sexist stereotypes. Even legislators have resorted to circular reasoning. For example, the State of Massachusetts defined it as:

a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.

If the compulsory question on sex allowed any alternative to male and female, it would also create an opportunity for public confusion, or even disobedience. Gender is a spectrum and we are all a unique mixture of masculine and feminine qualities so, arguably we could all choose to identify as non-binary should we wish. If large numbers of people checked the “non-binary” box on a whim, or out of mischief, the integrity of the census would be compromised.

The purpose of the census is not to validate identities or protect feelings; it is to collect data to inform present and future needs, including those applicable to transgender people such as myself. It is vital therefore to collect information on gender identity separately from information on sex, and recognise that sex remains a male-female binary in terms of both biology and law.

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This piece was developed from my submission to the Culture, Tourism, Europe and External Affairs Committee of the Scottish Parliament when they consulted on the Census (Amendment) (Scotland) Bill in 2018.