Hansard

I am pleased that we are debating the Census (Amendment) (Scotland) Bill at stage 3, as part of the preparation for the 2021 census. As the opening speaker for Labour, and as a member of the Culture, Tourism, Europe and External Affairs Committee, I thank everyone who provided evidence throughout the bill’s stages and those who provided briefings for today’s debate.

During the stage 1 debate, I highlighted a number of drafting issues with the bill, and I am pleased that they were addressed by amendments at stage 2. We now have an important bill in the evolution of the census, and there is recognition of the need for relevance through the introduction of questions on sexual orientation and transgender status and history in an appropriate manner.

However, it has not been a smooth journey. The bill’s progress took place against the backdrop of anticipated changes to the Gender Recognition Act 2004. At times, the debate has been too divisive, aggressive and intolerant of alternative views. There will be time for parliamentary scrutiny and debate, and it is our duty to approach that work in an inclusive and responsible manner.

I return to today’s bill and the census. The bill suggested that the terms of sex and gender would be conflated, which appeared to pre-empt the decision on any proposed changes to the sex question. The guidance that was provided with the bill added to such concerns, as the policy memorandum said:

“Looking forward to 2021, consultation has identified the need for a more inclusive approach to measuring sex. The sex question being proposed for the 2021 Census will continue to be one of self-identification and will provide non-binary response options.”

National Records of Scotland provided additional written evidence to the committee, which said:

“We are currently considering whether or not to have a non-binary response option for the sex question, but it is too early to say if this will be the final proposal as testing and consultation continues.”

That position was confirmed by the cabinet secretary during her evidence. The lack of clarity during our scrutiny of the bill was unfortunate, and it resulted in the committee taking considerable evidence on that issue, even though it is not the subject of the bill. However, important matters were raised that should inform National Records of Scotland in how it takes forward the next stages of the census.

There are questions to be addressed about the changes that were made to the guidance that was provided for the 2011 census, which made it clear that trans people should answer with their self-identified sex. It is important to recognise that the sex question is mandatory, and that answering it was difficult for transgender people; answering the question with their lived identity is consistent with how they present in other areas of their lives. However, there are arguments that the change has introduced a degree of uncertainty into the data that is gathered, and that sex and gender identity are now conflated into one question. The committee heard a proposal that there should be two questions—one on sex and one on gender identity.

I understand the concerns that were raised by the Equality Network, which said that reversing the position that was taken in 2011 would be highly problematic. Transgender people have legal rights to privacy, dignity and respect, and the organisation argued that it is not appropriate to insist that people disclose their biological sex at birth. Murray Blackburn Mackenzie argued that such an approach damages data integrity and quality, and that it sets a precedent for other data-gathering exercises and surveys, resulting in the loss of robust data on the protected characteristic of sex.

How do we resolve the situation that has already been created? We can reflect that there should have been discussion and scrutiny prior to the changes in 2011, and we can learn from that experience, but I would be hesitant about reversing the decision.

By including questions on trans status and history, the bill should enable policy makers and anyone else who is interested in the data to cross-reference responses and extrapolate figures based on sex and on gender identity. At the next stages of the census process, I would like reassurances on that point.

The committee, by majority, voted to retain a binary sex question. Although I abstained on the vote, given that the issue was not the focus of our work at hand, a majority of committee members were persuaded by the evidence that we heard from experts who use the information that is gathered from the census.

I raised an issue on that matter at stage 2, to which the cabinet secretary might wish to respond. I understand that the choice with which a non-binary person is presented does not reflect their lived experience. However, the NRS said that it would just assign a sex to the respondent. It said:

“If we ask a non-binary question—that is the big if and is obviously something for the committee to take a view on—we do not propose to produce outputs on a non-binary basis. In our conversations with stakeholders, we have always been consistent that it is about allowing people to respond in a way that reflects how they identify but that we will still produce outputs on a male and female basis.”—[Official Report, Culture, Tourism, Europe and External Affairs Committee, 20 December 2018; c 43.]

I would welcome clarity on what purpose a change to the binary question would serve. The response from NRS also makes assumptions about the number of people who would chose a non-binary term. I appreciate that NRS will undertake testing of the questions, but the number of people who will respond to the question, and how, is unknown. I ask the cabinet secretary to respond to those issues in her closing remarks.

I look forward to this afternoon’s debate.