Hansard

Before I start, I associate myself with the remarks of Claire Baker, Jamie Greene and Tavish Scott in urging a civilised debate on these matters and in condemning all violence or threats of violence against women, as outlined in Jenny Marra’s motion.

I thank the committee clerks and all the witnesses who gave evidence for our scrutiny of the bill.

I support the bill. Both sexual orientation and gender reassignment are protected characteristics under the Equality Act 2010, and it is appropriate to ask about them in the census on a voluntary basis.

Sexual orientation should be simple to quantify and data should be produced that is useful to our understanding of society. Trans status is more complex. As well as including transsexuals who have surgery after psychological therapy, Stonewall’s trans umbrella includes people with no medical treatment who refute the contention that they have a psychological condition. It includes transvestites and non-binary identities, and it will be interesting to see how the census question captures meaningful information about this very different group of individuals.

I want to explain briefly why some feminists find the concept of gender identity problematic. In her book “The Second Sex”, the philosopher Simone de Beauvoir argued that gender was a social construct, not something innate. Some so-called feminine characteristics such as passivity, concern for appearance and types of dress are roles that we adopt, not who we are. Feminists believe that a boy can like pink and play with dolls, and he is still a boy; and that a girl can like toy trucks and crop her hair, and she is still a girl. To suggest that those who do not conform to those gender stereotypes must be a different sex is troubling for some feminists.

I reject the concept of innate gender identity, but I will vote for the bill in a spirit of pragmatism and compromise. I accept that, for a growing number of people, identity is of deep personal significance.

Sex is a protected characteristic under the Equality Act 2010, and it has been a census question for 200 years. It is particularly important for women that sex is recorded accurately, because it is women who face most discrimination based on their sex. We also need to record sex to plan services such as health. The book “Invisible Women: Exposing data bias in a world designed for men” by Caroline Criado Perez—a favourite of the First Minister—demonstrates that bodies differ not just in terms of reproductive systems but in many other ways, for example in the presentation of heart disease.

The proposed non-binary sex question was rejected by the majority of the committee and, crucially, by the Office for National Statistics. The ONS conducted a robust equality impact assessment on the census, whereas the same exercise by NRS was inadequate. For example, it did not consider sex as a separate characteristic.

The sex question should also be based on biological sex, in my view. In 2011, without any public scrutiny, the census included online guidance that said that the sex question could, for the first time, be answered according to how people felt. The briefing from Murray Blackburn Mackenzie points out that that decision was based on a flawed private consultant’s report that erroneously said that sex included gender reassignment. It also points out that as we have no idea how many trans-identifying people—including non-binary—live in Scotland, no amount of testing by NRS can tell us how the data might be affected in 2021 by a self-identifying sex question.

Professor Susan McVie, chair of quantitative criminology at the University of Edinburgh, who sits on the Government’s board for official statistics, told the committee that the self-identified question in 2011 was a mistake. In a further letter this week, she said:

“The conflation of sex and gender identity goes against existing inequalities legislation and risks the construction of inaccurate and corrupted data.”

The inclusion of a trans question for the first time means that people can express their identity and answer the sex question accurately. I am not convinced by briefings that refer to “lived sex”. There is no definition of “lived sex” in either law or biology.

It has been suggested that feelings may be hurt if transgender people have to answer a question on biological sex, but there are other census questions that people could find distressing, such as those on mental health or disability. People answer them knowing that the census remains confidential for 100 years. Trans people will, of course, have to reference their birth sex on other occasions—not least in relation to medical treatment.

I hope that the cabinet secretary will take my points on board and, more importantly, the expertise of Professor McVie, Murray Blackburn MacKenzie and the Office for National Statistics. The census is the gold standard of statistics, and it is important that it is committed to both accuracy and material reality.