A straightforward binary question, not a choice

Fair Play for Women won.

Fair Play For Women have today won their High Court challenge against the Office for National Statistics. The ONS has conceded that the proper meaning of Sex in the Census means sex as recognised by law.

The High Court has now ordered “What is your sex” means sex “as recorded on a birth certificate or Gender Recognition Certificate”. The substantive hearing listed for 18 March is vacated and ONS must pay costs of both sides.

The Guidance accompanying the question “What is your sex?” is now published, on a final basis, and directs everyone to answer according to their legal sex for the remainder of the Census.

Jason Coppel QC for Fair Play For Women argued that the sex question in the Census is “a straightforward binary question, not a choice” at the initial hearing on 9 March.

It occurs to me that it’s a seriously important thing in life to know the difference between what you can choose and what you can’t. There’s a lot you can choose, including in how your sex influences your behavior, but what you can choose is not infinite. Knowing that difference save a lot of time and effort, and spares the rest of us a lot of endlessly stupid conversations.

Sir James Eadie QC for the ONS had argued that sex was an ‘umbrella term’ that includes a range of concepts such as ‘lived’ and ‘self-identified’ sex. He also claimed that asking about a person’s sex as recognised by law risks a breach of Article 8 of the Human Rights Act, which relates to privacy. The judge Mr Justice Swift disagreed. He stated that Fair Play For Women had a “strongly arguable case” and granted an interim order that forced ONS to immediately change its Guidance.

This case establishes that sex is a distinct concept in law, not something shaped by how a person feels, and that organisations need not worry about asking people their sex when they need to do so.

Dr Nicola Williams, director of Fair Play For Women, said

“Being male or female is a biological reality that affects all our lives. That’s why it’s important to collect accurate data on sex in the Census. Sex data gets corrupted if the ONS conflates sex with the idea of a feeling, called gender identity, under the question ‘What is your sex?’.”

“It is also wholly unnecessary because a new question has been added to this census specifically about gender identity. We welcome this separate question on gender identity. We simply want accurate data on sex to be collected too. ONS plans would have seen gender identity recorded twice and sex getting muddled.”

High five to FPFW.

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