Census (Amendment) (Scotland) Bill: Stage 1

– in the Scottish Parliament on 28th February 2019.

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Photo of Linda Fabiani Linda Fabiani Scottish National Party

The next item of business is a debate on motion S5M-16038, in the name of Fiona Hyslop, on the Census Amendment (Scotland) Bill. I call Fiona Hyslop to speak to and move the motion.

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

I am very pleased to open this stage 1 debate on the Census (Amendment) (Scotland) Bill.

I am looking forward to what I know will be an interesting debate. The Culture, Tourism, Europe and External Affairs Committee’s consideration of the bill through stage 1 has been comprehensive. The evidence from stakeholders has been excellent and has provided varying views on very sensitive matters. I am grateful to everyone who has contributed thus far to the bill. Today is another step on its journey.

Before I talk about the bill, I will take a moment to speak more generally about the census. Scotland’s next census will be taken on Sunday 21 March 2021, subject to approval by the Scottish Parliament. It will be the 22nd census to take place and the 17th to be managed independently in Scotland. In 2021 it will also be, for the first time, conducted predominantly online.

Our country has relied on the census for more than 200 years and is the only survey of its kind to ask everyone in Scotland the same questions at the same time. No other survey provides the richness and range of information that the census provides.

The key aspects of the census are that it counts people, that it has to be credible, that people must have confidence in it, and that it must be consistent with comparators. The census tells us who we are and how we live and work in Scotland. In telling that story, the census cannot lead society—it should reflect the society in which we live. We are very proud of the richness of the data that we hold and the consistency of approach that we can demonstrate over 200 years.

The purpose of the bill is to amend the Census Act 1920 in order to allow questions on sexual orientation and prescribed aspects of gender identity—those being of transgender status and history—to be answered on a voluntary basis. The power to ask those questions for answer on a compulsory basis already exists in the 1920 act, but refusing to answer a census question or neglecting to do so is an offence under section 8 of the act, and we want to avoid that for individuals who will answer the new questions. I recognise that they are important but highly personal matters. It is crucial that nobody is, or feels in any way, compelled to answer those important but sensitive questions. Therefore, the bill seeks to mitigate any concerns about intrusion into private life by placing the questions on a voluntary basis, as was done with religion when it was included for the first time in the 2001 census.

I am pleased that the Culture, Tourism, Europe and External Affairs Committee has supported the general principles of the bill.

I wish to stress that the specific census questions are a work in progress. The bill is not about the detail of the questions. The questions that will be set for the 2021 census will be considered as part of the subordinate legislation process, on which engagement with the committee will begin shortly and continue through to next year.

Sexual orientation is already asked about in most Scottish household surveys, and it is proposed that the sexual orientation question for the 2021 census will mirror the question that is already used in other surveys in Scotland and elsewhere in the UK. It is worth noting that a question on sexual orientation was considered for the 2011 census. However, it was not proposed to Parliament because of a lack of public acceptance that the question be asked. Society has changed significantly and rapidly in the 10 years since the last census, so we must ensure that the census in 2021 reflects that. I am therefore happy that the committee recognises that now is the time to ask in the census a question on sexual orientation, to be answered on a voluntary basis.

I have also confirmed my support for the committee recommendation to consider people’s privacy rights when the form is being completed by the head of the household. National Records of Scotland will take into consideration the committee’s direction on consulting organisations that represent young people, including LGBT Youth Scotland. NRS is developing a system involving completion of an individual form in private, with no one else in the household being aware that it has been requested. That will allow individuals to respond in a private and confidential way.

It is widely recognised that there is limited evidence on the experiences of transgender people in Scotland. There is currently no fully tested question with which to collect information. Therefore, the census will be taking a big step forward to ensure that we can develop the evidence that is needed to provide support and protection to Scotland’s transgender population.

The committee highlighted that the current drafting of the bill, particularly in respect of how the term “gender identity” has been used, might give the impression that sex and gender identity are being conflated. The intention behind the bill has never been to conflate sex and gender identity. The committee recommends, and I agree with it, that an amendment is required at stage 2. It supports an amendment that has been proposed by the Equality Network to address the issue. I have confirmed to the committee that we will work with it, the Equality Network and other stakeholders to deliver a solution that commands broad support while providing the degree of flexibility that NRS needs to develop the census questions. Work has already begun on the precise form that the amendment might take. Our and the Equality Network’s current thinking do not seem to be very far apart. I am very pleased that the committee supports the inclusion of the trans status question, which will be answered voluntarily.

A question on sex, asking whether someone is male or female, has been asked in the census since it began in 1801. As part of planning for 2021, NRS has been considering whether that question should include other options. I am aware that there are strong, and often very opposed, views on whether a question on sex should be binary, non-binary, relate to birth certificates or legal sex, or be more focused on self-identification. That has been evident from the evidence in the stage 1 submissions on the bill.

I note that the committee has recommended that the sex question remain binary for 2021. As I said a few moments ago, the wording of the questions will be agreed as part of the subordinate legislation process. However, I note the committee’s clear direction on what it considers is appropriate for the sex question. That will be taken into account as NRS works towards preparation of the subordinate legislation, which will be considered by the committee and Parliament in due course.

NRS is committed to an on-going programme of testing of the question, and it is currently engaging with stakeholders, including those that have given evidence to the committee, in order to understand their needs and concerns. NRS will work closely with the committee over the coming months on that specific question, as well as sharing the proposed full question set and any additional evidence and stakeholder views for consideration before the formal legislative process.

I recognise that the committee considered that it was regrettable that intersex was referred to incorrectly as coming within the umbrella term “trans” in the policy memorandum to the bill, which was unfortunate. In response to the committee’s recommendation that all guidance for 2021 makes it clear that intersex does not fall within trans, NRS will develop guidance in consultation with stakeholders to ensure that the language and terminology are acceptable.

The Government has noted the written evidence from dsdfamilies and it accepts the recommendation in paragraph 119 of the committee’s report. The Government intends later this year to carry out a consultation separate from its census work, which will cover a range of issues, including how to improve information and services for intersex children, children who have variations in sex characteristics and their families.

I recognise that the committee has expressed concern about the lack of engagement with a range of groups and individuals. NRS carried out a public consultation between 8 October 2015 and 15 January 2016 in an effort to understand what information users need from the census in 2021. It is recognised that not all groups were aware of or responded to the public consultation, and the committee made specific reference to women’s groups. No women’s groups responded to the public consultation; indeed, some might well not have been established at the time of the early consultation stage.

However, NRS is now actively engaging with the women’s groups that responded to the committee’s call for evidence, and several helpful and constructive meetings took place in January. As I said to the committee, it is of critical importance that NRS continues to engage with individuals and groups that have an interest in the census. The committee’s work has been very useful in highlighting the census to the groups that have been engaged with so far. Work with stakeholders, including those women’s groups, will continue as part of the question development process. The committee will be fully updated on the NRS’s consultation and progress with the women’s groups prior to any consideration of a draft census order.

The committee made a specific request for details of any consultations that had been held with groups representing intersex people, and it recommended that a specific consultation be held. I have confirmed that NRS did not meet organisations representing intersex people prior to 5 December 2018, but it was aware of meetings that other teams within the Scottish Government were having. However, NRS had a helpful meeting with dsdfamilies in January and is committed to engaging with that organisation and other organisations and experts in the future, so that their views are taken into account. It should be noted that NRS has never intended to have a question or a response option identifying intersex people.

I turn to languages. The committee recommended that consideration be given to the evidence that it received with regard to the language question for the 2021 census. I accepted that recommendation, and the information that the committee received will contribute to the on-going process of user consultation and question testing. However, although some need was identified for data on multilingualism, the aim of the main language question is to identify people for whom English is not their main language, and their level of proficiency in English, in order to support service provision.

I wish to recognise that, in Scotland, we have a strong track record of evidence-based decision making. The census is a key source of high-quality impartial evidence to support those decisions. The matters that we are considering today will allow accurate information to be gathered on important topics in an appropriate way, while recognising individuals’ rights to privacy. I look forward to hearing from Parliament colleagues during the debate.

I move,

That the Parliament agrees to the general principles of the Census (Amendment) (Scotland) Bill.

The Deputy Presiding Officer:

I call Joan McAlpine to speak on behalf of the Culture, Tourism, Europe and External Affairs Committee.

Photo of Joan McAlpine Joan McAlpine Scottish National Party

I welcome the opportunity to speak in the debate as the convener of the Culture, Tourism, Europe and External Affairs Committee and to set out the main findings of our stage 1 report. I thank all those who provided oral and written evidence. The breadth of views gathered and the respectful way in which they were discussed do credit to the committee. I also thank our clerks. This one-page bill has turned out to involve a lot of work, but they have more than risen to the challenge. In addition, I thank committee members for the constructive approach that they took to evaluating the evidence.

The bill seeks to enable questions on gender identity and sexual orientation to be asked in the census for the first time, with responses on a voluntary basis. The committee agreed unanimously that that should be done. During the committee’s scrutiny of the bill, we heard that “sexual orientation” is a well-understood term, but that “gender identity” has no defined meaning in law. In responding to the evidence received by the committee, NRS explained that it would reconsider the terminology that is used in the bill, including whether to replace the term “gender identity” with “trans status”.

Stonewall and the Scottish trans alliance, which advise the Scottish Government, informed the committee that they define transgender as including all the identities that are encompassed under the trans umbrella. The trans umbrella is very broad and encompasses people who have chosen to undergo physical changes and those who have undergone no physical changes but who have a trans identity. To be clear, the trans umbrella includes

“transgender, transsexual, gender-queer ... gender-fluid, non-binary, gender-variant, crossdresser, genderless, agender, nongender, third gender, two-spirit, bi-gender, trans man, trans woman, trans masculine” and

“trans feminine”.

It should be noted that the bill does not address how to frame questions on trans status or trans history in the 2021 census. Parliament will consider that issue, along with other census questions, in secondary legislation that is to come. The committee agreed that such questions would be beneficial to lesbian, gay, bisexual and transgender people, as they would allow Government to better meet their needs.

The committee agreed that, given the sensitivity of the questions, no one should be compelled to answer questions on trans status, trans history or sexual orientation—that must be voluntary. We agreed with LGBT Youth Scotland that young people’s privacy must be protected when the form is completed by the head of the household, and I note what the cabinet secretary said in that regard.

Although the committee supports the bill’s general principles, we have concerns about its drafting. The bill proposes to make changes to the schedule to the Census Act 1920 by inserting the words “including gender identity” after the word “sex” in paragraph 1. The danger is that that appears to conflate two different things.

Sex is a protected characteristic under the Equality Act 2010, whereas the committee heard that gender identity has no defined meaning in law. Gender reassignment is also a protected characteristic under the act, but it is distinct from the protected characteristic of sex.

The sex-based protections in the 2010 act are particularly relevant for women and girls, as they are based on birth sex. For example, the act allows for single-sex services and occupations when that is a proportionate means of protecting the safety, privacy and dignity of females. Some witnesses argued that those protections would be compromised if sex was perceived to be conflated with gender identity. Others disagreed, stating that the act also protects those with gender reassignment.

Accordingly, the committee welcomes the Equality Network’s proposal, which is to remove the words “including gender identity” from the bill, leaving paragraph 1 of the schedule to the 1920 act unchanged. “Trans status/history” would then be added as a category on the same basis as that proposed for “sexual orientation”. That suggestion reflects the committee’s thinking. We note that the cabinet secretary has agreed that amendments are needed and welcome her commitment to lodge an amendment at stage 2. I would welcome clarification from the cabinet secretary in her closing speech that her amendment will have the effect of removing any linkage to the sex question.

The problems with that aspect of the bill seem to be due to the fact that the consultation focused on only a very small number of stakeholders and did not include women’s groups or census data users. In “Scotland’s Census 2021—Sex and Gender Identity Topic Report”, the NRS initially seemed to understand the importance of sex.

Photo of Joan McAlpine Joan McAlpine Scottish National Party

I am sorry, but I cannot, because I am speaking for the committee.

The topic report says:

“Sex ... is a vital input to population, household and other demographic statistics which are used by central and local government to inform resource allocation, target investment, and carry out service planning and delivery.”

The report goes on to say that sex is a protected characteristic, as set out in the 2010 act, and that the data are widely used to inform equality impact assessments.

However, NRS changed the mandatory sex question in 2011 to allow respondents to self-identify as male or female. The change was not mentioned on the census form and appeared only in online guidance.

NRS proposes to continue that approach in 2021 and is considering whether to make the sex question non-binary for the first time—that is, to offer a third option in addition to male and female. For clarity, that is not to be confused with the trans status/history question, but would be a change to the sex question, which has been male/female since 1801.

Some witnesses have suggested that that risks undermining the effectiveness of the data collected. They include Professor Susan McVie OBE, who is co-director of the administrative data research centre in Scotland and a member of the board for official statistics in Scotland. The board advises the Scottish Government, but it was not consulted on the census.

Professor McVie suggested that

“the General Register Office for Scotland got it wrong when it redefined the sex question” to include self-identified gender in 2011.She told us:

“From a research point of view, we know that certain conditions—medical conditions, for example—are sex related”,

regardless

“of a person’s gender identity”.—[

Official Report, Culture, Tourism, Europe and External Affairs Committee,

13 December 2018; c 4-5.]

That position was supported by some clinicians, independent women’s groups, academics and individual women who submitted evidence.

Others stated that it would be distressing for transgender people, including those who identify as non-binary, to answer a question according to their biological sex. They included Scottish trans alliance, Stonewall, individual trans people, gender studies academics and some women’s organisations that advise the Scottish Government, such as Engender.

Significantly, the Office for National Statistics has said that the sex question should remain binary for the 2021 census in England and Wales. Its equality impact assessment for the census states:

“The protected characteristic of sex as defined in the Equality Act 2010 ... is whether a person is a man or a woman. This binary concept of sex is, in turn, fundamental to the Equality Act 2010 definition of sexual orientation and of gender re-assignment, and to the law on marriage and civil partnership and many other matters.”

Our committee agreed, by a majority, that the sex question should remain binary in order to maximise response rates and longitudinal consistency with previous censuses. We unanimously recommended that any guidance on how to answer the sex question—[

Interruption

.] Excuse me—my Surface has gone strange. We unanimously recommended that any guidance on how to answer the sex question must be clearer and consider the importance of sex as a protected characteristic.

The committee also took evidence from dsdfamilies. The group represents those affected by differences in sexual development, which encompasses about 40 different medical conditions and is sometimes called intersex. It was unhappy with the inclusion of the term “intersex’” as a trans identity in the policy memorandum to the bill; it is an umbrella term that relates to a person’s physical sex development, not their gender identity. Furthermore, dsdfamilies explained that the vast majority of people with DSD are clearly male or female. It told the committee that, although some reports claim that 1.7 per cent of the population is affected by some kind of DSD, only a tiny number—one in 5,500 babies—require specialist input to determine their sex. Therefore, in the view of dsdfamilies, the term “intersex” can be confusing.

Although we are aware of intersex campaigners who take a different view, it is concerning that a respected organisation such as dsdfamilies, despite being a Scottish charity, was not initially consulted by NRS. We note that the Government now accepts that a mistake was made, and we welcome the commitment to engage with a wider range of stakeholders, including dsdfamilies, in future.

That example illustrates the wider problem with the consultation on the bill. Although transgender campaigners and some established women’s organisations support the bill, a number of female academics, data users, individual campaigners and newly formed independent female rights organisations have concerns about the conflation of sex and gender and the perceived risk to sex-based protections for women and girls. The broadening of public discourse on these issues must inform future consultation on the topic, and the Scottish Government should reach out to the widest possible constituency and carefully consider all the evidence that the committee has gathered.

In conclusion, the committee supports the bill’s general principles and looks forward to fully scrutinising in due course the forthcoming secondary legislation on the 2021 census.

Photo of Annie Wells Annie Wells Conservative

Society’s attitudes have changed, and it is only right for the census to reflect that. The Scottish Conservatives are happy to support the bill and its general principles at stage 1, with a view to submitting amendments at stage 2.

As we have heard, there is a lot of discussion to be had on the wording of the questions. It will be important to discuss that issue in a lot more detail and to address how the census will define, structure and communicate the voluntary questions on sexual orientation and gender identity.

The purpose of the bill is simple: it is to allow National Records Scotland to alter the census and vary the questions asked in it. As we know, the census is important for many reasons. Completed every 10 years, with the next one in March 2021, it gives us a complete picture of the nation and provides information that is needed by Governments in the UK to develop policy, to plan and run public services and to allocate appropriate funding.

In terms of equality data, the census is extremely useful in providing the basis on which to plan public services. However, it is widely accepted that there are gaps in equality data and that the information is needed so that public authorities can fulfil the public sector equality duty and duly consider the needs of protected groups under the 2010 act.

Although the census covers most equality groups, it has not previously included questions about sexual orientation or gender identity. As social attitudes change and discrimination lessens, it makes sense for the census questions to reflect society’s views.

In 2015, only 18 per cent of people in Scotland expressed the view that sexual relations between two adults of the same sex are always wrong, and only 32 per cent of people said that they would be unhappy for a close relative to marry or form a relationship with someone who has undergone gender reassignment.

The purpose of the bill is to reflect this more open society. It aims to amend the 1920 act so that answering questions on prescribed aspects of gender identity—on trans status and trans history—and on sexual orientation is made voluntary.

It goes without saying that that all needs to be done with care. To ensure data quality, information should not be collected if it is not reliable or if people have difficulties with providing accurate answers. Given the need for individual privacy, it is right that such questions are answered on a voluntary basis, as was done with questions on religion in the 2011 census. Given the sensitivity of the questions, that is the correct approach.

It is reassuring that the development and testing of the census questions will continue, and I am pleased that the inclusion and wording of questions will be subject to the Scottish Parliament’s approval.

Although the inclusion or wording of any such questions is not within the bill’s scope—those matters are left to regulations that will appear in due course—I will comment on those issues, given the interest from third sector organisations on how such questions might be framed and understood.

I note the committee’s concerns about the conflation of sex and gender identity as well as the concern that there was a lack of clarity in—and a lack of awareness of—the online guidance concerning the self-identification approach in 2011.

Although I recognise the valid and strongly held views of stakeholders on the mandatory sex question, I am inclined at this point to agree with the committee recommendation that the mandatory sex question should remain binary. I add that I was not present at the committee’s evidence sessions.

Ahead of 2021, I hope that we will have complete clarity about the approach that will be taken. That is particularly important given the census’s primary purpose—to collect robust data—and the Scottish Government’s obligation to act in accordance with the 2010 act, under which sex is a protected characteristic.

I note the recommendation that trans status should be added as a category for census questions on the same basis that is proposed for sexual orientation. As the bill progresses, I hope that further work will be carried out to bring about a consensus of understanding across the chamber on what is meant by “sex” and “gender identity” in the context of those census questions.

Clarity remains key to ensuring that appropriate responses will be given. The Law Society of Scotland has highlighted that that is a necessity for everyone involved when it comes to the questions that are being asked, for the benefit of those answering the questions and those interpreting and using the data.

Key stakeholders need to be aware of the relevant guidelines that will be put in place and must be consulted beforehand so that the guidelines meet all their requirements. It is clear that the wording of the questions is still very much subject to debate.

Although the inclusion of the question on sexual orientation has not prompted any obvious concern, as the cabinet secretary mentioned, it will be important to consider how it may impact young people in particular when the form is being completed by the head of the household. I am pleased that that will be looked at.

I also note the clarification from the cabinet secretary that intersex people will not be included within the term “trans”, recognising that their needs are different, and I welcome the commitment to ensuring that future guidance clarifies that.

I reiterate the Scottish Conservatives’ support for the bill at stage 1. Although the inclusion or wording of any such questions is not within the bill’s scope, it is clear that further work needs to be done. As the development and testing of the census questions continue, I hope to see more clarity in the coming months. There has been a lot of stakeholder interest in the bill; it is vital that we strike a balanced approach that supports the census’s goal of harnessing the most accurate and effective data.

The Deputy Presiding Officer:

Claire Baker has a generous six minutes.

Photo of Claire Baker Claire Baker Labour

I am pleased to open for Scottish Labour in this stage 1 debate on the Census (Amendment) (Scotland) Bill. I am fortunate enough to be a member of the Culture, Tourism, Europe and External Affairs Committee, which listened to all the evidence and prepared the report that is being discussed.

I thank all the organisations and individuals who contacted us with briefings and comments before the debate.

The census has taken place every 10 years since the Census Act 1920 was passed. It is an important exercise in understanding the nature of our population and it informs the work of public bodies in making key decisions about resource allocation, policy development and how services are planned. The census has changed over the years to reflect changes in society and to ensure that the information that is gathered remains relevant. Since 1999, it has been the Parliament’s responsibility to scrutinise the census, particularly when new questions are introduced. Any cabinet secretary might expect the process to be straightforward, and it has perhaps been surprising to see how contentious the framing of questions can be.

The bill is slightly different. It is necessary because, unlike the majority of the questions, which are compulsory in nature, the proposed questions are to be answered on a voluntary basis. There was agreement across the committee and in the evidence that we received that it is appropriate for questions on sexual orientation and transgender status to be answered on a voluntary basis, which is similar to the treatment of questions that are asked about religion. It is important that the overall census completion rate remains high and that people feel comfortable about answering the questions. The bill will also ensure that a non-response to such questions does not lead to a penalty such as would apply to non-responses to other questions. Introducing voluntary questions on the proposed subjects is the bill’s purpose—we should not lose sight of that fact—and Labour will support its general principles today.

The census is designed to reflect society and to keep pace with changing mores and expectations. Currently, there is no reliable data on the size of the transgender population in Scotland, and data on sexual orientation is gathered only from surveys, which can provide only an estimate. More accurate data would enable better planning of appropriate services and greater recognition of the need for services for the groups of people involved, who might be underrepresented and poorly served. The Equality Network and the Scottish trans alliance cautioned that the questions might not lead to an accurate account of the population, as the questions are sensitive and people might not wish to answer them. However, the data will still be valuable, and it should enable a better understanding of the population over the years, as it is collected.

The stage 1 report raises a number of significant issues that the cabinet secretary must reflect on, and I welcome her comments this afternoon. The discussion at stage 1 in committee was dominated by the concern, expressed by some witnesses, that the bill conflates sex and gender as a forerunner to a proposal to change the compulsory sex question in the census. The debate was divisive and it was difficult to achieve consensus, but there was growing agreement that the bill’s drafting is problematic.

Following its evidence session, National Records of Scotland wrote to the committee, stating that

“the intention behind the Census Bill was not to conflate the matters of sex and gender identity” although the bill’s wording strongly suggests that. NRS also expressed the view that the power to ask questions on the issues already exists. Given that fact, the insertion of the words “(including gender identity)” through section 1 seems redundant and unnecessary. That has led to the conclusion that sex and gender identity are being conflated.

The cabinet secretary argued that the term “gender identity” is being used as a way of future proofing the provisions, that it is understood as a term and that it could be an umbrella term to enable future questions in this area to be introduced. However, I disagree. The evidence that the committee heard made it clear that there is a lack of agreement on the definition of gender identity.

Consideration of the Gender Recognition Act 2004 is on-going, and, although the rights of transgender people are being debated and consideration is being given to the recognition of those of no gender, the public debate about the issues is being conflated with the discussion about the bill. In those circumstances, it is not appropriate to use a catch-all term for any future questions. Future questions should be specified and scrutinised by Parliament, and this short bill must be amended to make that clear.

A proposed change to the binary sex question has been the key area of debate, although it is not part of the bill. It is regrettable that the committee could not achieve consensus in its stage 1 report—even more so given that the division related to something that is not in the legislation. As a member of the committee who abstained, I asked myself what the vote would have achieved at that stage, when the debate and evidence were divisive as well as contradictory and when consensus was lacking.

The Government needs to decide whether to produce a census order that would change the sex question, at which point the Parliament would consider the question and the evidence in detail and make a decision. I am concerned that holding a vote on the matter at stage 1 was pre-emptive and that the Government’s response to the stage 1 report lacks clarity. However, the vote gave the cabinet secretary a clear indication of the majority view of the committee.

The stage 1 report is also critical of the consultation. I do not believe that it was the intention of National Records of Scotland to exclude anyone—or any group—from involvement; I got the impression that it just completely failed to see that there may be a debate and that there may be more than one point of view on the sex question. I welcome the fact that wider consultation is now being undertaken.

We support the general principles of the bill, but we agree with the committee that it needs to be amended significantly to clarify its intention. The Scottish Government must seriously reflect on the wider discussion that took place in considering any further changes.

Photo of Ross Greer Ross Greer Green

The bill might be very short, but it is an important piece of legislation and I am happy to support its principles at stage 1, as are the Greens.

The bill’s purpose is to ensure that everyone feels able to accurately complete the census. It allows questions about sexuality and trans status—or, as has been covered, gender identity—to be asked appropriately as voluntary rather than mandatory questions. Although we have made immense progress as a society, we are still not free of bigotry. We are still a society in which some people feel that they need to hide parts of their identity and lived reality. We must respect that, which is why I welcome the cabinet secretary’s comments—particularly those with regard to young people.

It would be inappropriate to compel someone to answer a question on something as intensely personal as their sexuality or their trans status. At the same time, however, the opportunity to collect that data from people who are happy to provide it is an opportunity to meet the needs of those who can, too often, go unnoticed and supported. What is proposed is a small change to something that happens once a decade, but it is part of a process to ensure that people’s identities are respected, particularly when they engage with public services. There is a contrast between the size of the bill—it is a single page—and the significance of the census and the effect that it has.

The committee received submissions in support of the bill and the principle of trans inclusion from many national and long-standing equality organisations including the Equality Network, the Scottish trans alliance, Stonewall Scotland, Engender, Rape Crisis Scotland, Scottish Women’s Aid, Close the Gap and Equate Scotland. I thank them all, particularly for their supplementary evidence as the debate very quickly evolved into areas that we were not necessarily expecting.

I know that I am not the only one to have been, at times, frustrated and disappointed by the stage 1 process and by what I see—Claire Baker also mentioned it—as the digression of the debate into matters that are outwith the scope of the bill. At times, the validity and existence of trans and non-binary people were called into question, and I know the upset and anxiety that that caused many vulnerable people, some of whom have been in touch with me throughout the process.

What should have been a small, technical change to the Census Act 1920 to ensure appropriate wording became, instead, a much wider equalities debate that we were not prepared for. It became a debate about trans inclusion and whether trans-inclusion measures impact on the rights of cisgender women. It saddens me that we took oral evidence from only one trans person. That would have been adequate for what we thought, at the start, was a relatively technical process on a technical bill, but it was not adequate for the much wider equalities debate that evolved.

Although much of the debate centred around whether trans-inclusion measures undermine the rights of cis women, we did not invite any of the long-standing national women’s organisations to give evidence at the committee. Nevertheless, I appreciated their collective written submissions—particularly, as I said, the latter ones as the debate evolved. As I have stated, those women’s organisations are supportive of the bill. They also have decades of experience of trans inclusion. I wish that that had been reflected more in our stage 1 report.

Legitimate concerns that should be addressed were raised in the broader debate on the introduction of trans-inclusion measures. How trans-inclusion measures intersect with services for women, particularly women-only spaces, is one such concern. Scottish Women’s Aid and Rape Crisis Scotland have highlighted that their experience of providing support services in a trans-inclusive manner for women who have experienced violence has given them a huge amount of evidence, which they can contribute to the debate. Their letter to the committee stated:

“It is very clear to us that trans inclusion in our own organisations has not given rise to substantive concerns or challenges. Rather, trans women have added to our movements through their support, voluntary work and as staff members”.

Some questions that were raised—particularly those regarding data reliability and comparability—were very much within the scope of the bill. It was suggested that questions that were completed on the basis of self-identification, which was existing practice in the 2011 census, and the inclusion of a third option in the sex question, which would be a change, would harm the overall dataset and, in turn, affect the planning of sex-based services, for example. Some of those fears are misplaced. I point, in particular, to the submission from the head of engagement for NHS National Services Scotland, which is the body that oversees the patient information database. The national health service uses its own data, rather than the census data, in service planning, and it already collects patient data on the basis of self-identification without issue. The coalition of national women’s organisations, which has extensive experience of that type of data, also stated that collecting that information in a trans-inclusive fashion would be beneficial.

I dissented from the committee’s conclusion in favour of a binary sex question. Like the respected women’s and equalities organisations that I have mentioned, I support a third option whose inclusion would allow more people to complete the census. As the NRS found, it would increase response rates, despite reports to the contrary. It would allow us to gather valuable data on a small and vulnerable group about whom we cannot practically gather such information in any other way. Further, it would not negatively affect anyone else. For all other purposes, that tiny number of people would be randomly redistributed into the male and female categories. Why should we not make a change that would positively benefit a small and vulnerable group at no cost?

As the legislative process moves forward, I hope that all members take the opportunity to listen to those whose lives and identities we are discussing. One role of this Parliament should be to lift up the voices of Scotland’s most marginalised. The bill is an opportunity to do just that, which is why I support its principles.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

I am grateful to the committee for its work on the bill. I do not sit on the committee, but I have been keeping abreast of the developments on the bill from afar.

We live in more enlightened times—a fact that was brought home to me two weeks ago, when our seven-year-old son Kit came to me and said, “Dad, what is trans?” I scratched my head about that, but he is an inquisitive and mature boy, so I asked him if he remembered the family from Australia who had visited us in the summer with their little boy Hamish, who was Kit’s age. I asked whether he had noticed that Hamish always wore girls’ clothes. He said that he recognised that, and I explained that, although Hamish was born a little boy, he felt more like a little girl, which is what trans is. Kit stopped and said, “Oh my God! Do you mean to tell me that Hamish is from Australia?” I like to think that that level of acceptance is felt right across the board, wholesale, by our children and young people—the new generation. We should reflect that enlightenment in public policy, which is where this debate stems from.

As Ross Greer articulated, a tension exists between cisgender women and the intersectionality of the trans community. I have been dismayed by some of the arguments in that debate, which have been characterised by hyperbole at times. At its most extreme, there was the suggestion that the advancement of trans rights represents a threat to public safety, which is reminiscent of arguments that were used against gay men in the 1980s. Such arguments are as inaccurate today as they were then.

For my party, the bill stems from first principles. Trans men are men, trans women are women and non-binary is valid. How we reflect that in the conduct of public policy matters, and how we see and count those people is incredibly important in furthering their rights and their inclusion in our society.

It is clear where the fault lines in the debate lie. In 2011, for the first time, the guidance offered people the option to fill in the mandatory sex question irrespective of the details on their birth certificate. For the trans community, that represented a significant breakthrough, and I have sympathy with Stonewall’s concern that changing the guidance and removing that latitude would be a retrograde step. Many people found the 2011 census liberating. They were no longer anchored to their birth identity and to all the trauma that they had been through in the process of shedding their connection to that. Finally, society could understand and include them for who they were.

If there is a need to collect empirical evidence at birth, the Government needs to be clear about how it will square that circle. I ask the Government to work further with Stonewall and the Equality Network to find a way to address that empirical need without rowing back against the tide of the advancement of trans rights and inclusion.

I recognise the arguments about the importance of not having a mandatory binary sex question. That is important for people who do not define as male or female and for people who were born intersex, who would struggle to answer a mandatory binary question. Perhaps we will consider that issue as we go forward.

As I have said, our trans community deserves to be seen and to be counted. Being seen and being counted are the first steps to people having their rights realised, whoever they are in our society. That happened when women got the vote and when homosexuality was made legal. The people in those marginalised communities were recognised as full citizens and for who they were. The bill concerns the way in which we count our population in the census, which is a fundamental cornerstone in the advancement of equality in this nation.

Photo of Christine Grahame Christine Grahame Scottish National Party

There is time in hand, so I can give all members who speak in the open debate five minutes. I call Stewart Stevenson—I do not think that he will have any problem with that.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

Thank you, Presiding Officer. Some invitations are more welcome than others, and that is one of them.

I have not been part of the consideration of the bill until now. I am a data user of censuses, but I am also a user of censuses. In other words, my interest in genealogy means that I read a census every week, but the censuses that I read are all 100 years old. That is of some, limited interest to today’s debate.

The Scottish Parliament information centre tells us:

“The information on equality groups in the Census can be used to monitor discrimination and to plan public services.”

That is, of course, correct, but during the debate we need to bear in mind that the census is a statistical survey. It is not about identifying the responses and needs of individuals; it is about identifying the needs of communities—often quite small communities—to ensure that public services are provided appropriately.

SPICe also says:

“The information collected must be ‘authoritative, accurate and comparable’ for all parts of Scotland”.

There is a difficulty in that description of what we are trying to do. The information should certainly be authoritative, it should perhaps be accurate and it should almost certainly be comparable. Retaining the question on whether someone’s birth identity is male or female helps with comparability, but we must remember that, at birth, the parent registers the birth and the gender of the infant.

I have an example from exactly 150 years ago. A child called Keith—I will not use the second name, because there will be living descendants—was registered, as we would expect, as a male, but in the census three years later and in every subsequent census, Keith was shown as female. In 1905, Keith married a man and gave birth to children. An error was probably made in 1869, when Keith was born. When someone dies, there needs to be medical information on their death certificate, but there is no medical requirement to provide information about gender to someone who is registering a birth. Therefore, there are some difficulties with the authoritative aspect of the census information. As the example that I have given shows, it is possible for someone to have something on their birth certificate and to put something else on the census. There has always been that possibility.

Who fills out the census? In broad terms, it is the head of the household. I welcome the indication that there will be a way for individuals to provide information that they might not want to share with the head of the household at that point. However, the question is voluntary, so we will not get the information from everybody for whom there might be a particular answer, and we will not necessarily get an answer from people who do not choose to use the separate system that allows them to respond individually.

That opens up a much broader question—for which I have no direct answer—of how, statistically, we can rely on information from a self-selected group, using a self-selected description. It is possible to deal with that, but I hope that the National Records of Scotland finds out, perhaps through sampling, how the answers that we get represent the underlying reality, because the statistics that come from the census are important for the planning of services.

Voluntary questions were introduced in the 1891 census, when for the first time there was a question about whether someone spoke Gaelic, which they did not have to answer. There is nothing new about a voluntary question, and we can do that in the bill, as we did then.

I trust my colleagues as we take the bill forward—I will not be playing any part in it. It is important that there is a clear distinction between physical sex and how people wish to be recognised and treated. The human right in our society to be able to choose how one is treated goes to the heart of this debate, and I very much welcome the fact that a tiny legal provision—it is really only a couple of lines in a very small bill—will leverage big consequences for quite a lot of people in our society. It is right and proper that we take this forward in the way that we are planning to and that we continue to engage to make sure that the questions that we ask give us answers that, statistically, help us to respond to a wide range of diverse needs that we did not recognise and certainly did not talk about in the past.

Photo of Jamie Halcro Johnston Jamie Halcro Johnston Conservative

I apologise for having to leave the chamber briefly during the opening speeches.

At a length of one side of A4 paper, this is certainly one of the shortest bills that I have been invited to speak on in the chamber. However, within the bill’s short sections, there are a number of sensitive issues that merit discussion today. The bill touches on matters of individual identity and how they relate not only to the public being engaged with the census but to the eventual users of the data that it brings together.

There are questions of approach here. The evidence that was presented to the Culture, Tourism, Europe and External Affairs Committee shows that the bill remains controversial. I express my thanks to the committee, its clerking team and those who gave evidence for producing such a comprehensive stage 1 report.

One key objective of the bill, on which there seems to be wide agreement, is to make additional questions voluntary. As with sexual orientation, it is clear that a number of people will not feel comfortable disclosing details of a certain nature.

On the proposals for additional areas of questioning, the National Records of Scotland indicated its view in a letter to the committee that the power to ask questions on gender identity already exists and is covered by the Census Act 1920. The precise wording will be considered later. A stage 1 debate is not the place to thrash out the substance of such questions in any great detail. Indeed, it has been suggested that the bill is perhaps not the appropriate place either. We can, however, look at the basis for proposing such questions and for, in essence, expanding the scope of the census further into areas of gender identity and sexual orientation.

The census has a long history in the United Kingdom, having been conducted every 10 years since 1801, barring 1941, when we were in the midst of the second world war. We can look back even further into the past to see much earlier historical precedents. John Rickman, the statistician most responsible for the first modern census, pointed out that

“the intimate knowledge of any country must form the rational basis of legislation”.

Every administration in our history has valued accurate data on its population.

Today, questions on sex, gender and identity significantly provide an understanding of groupings within society and can protect against discrimination. The nature of how those questions are asked has undoubtedly been the key area of interest for those responding to the committee in written submissions. Many of those submissions are detailed and well considered, but they present very different viewpoints. A message that comes through is that, as the bill progresses, we are going to have to consider and tackle some of those core issues. A thread that connects those differing viewpoints is questions about clarity and accuracy of data that must be answered.

The committee has recognised the shortcomings in the most recent census. Supporting guidance indicated how transgender people could answer questions about sex, but that was published only online and was not part of the census form. There seems to have been a very real capacity for confusion and it is right that the committee calls for “absolute clarity” in the approach ahead of 2021.

Where voluntary questions are ill conceived, there is also the potential for lower response levels.

As we approach the bill, we should recognise that there are strong, honestly held, competing views about parts of it. It is likely that they will garner the largest share of public attention and commentary.

One area where we can join together is to insist that there are plans in place to ensure that questions are statistically useful, that they are clear to respondents and that we take a consistent and rational approach to implementing voluntary questions.

I have little doubt that there will be further discussion in relation to the questions that the bill enables and I hope that an approach can be found that respects the views of all those who are involved.

Photo of Kenneth Gibson Kenneth Gibson Scottish National Party

As a member of the Culture, Tourism, Europe and External Affairs Committee, I am pleased to speak in today’s debate.

One might wonder at the amount of evidence that has been taken in respect of a one-page bill. However, that is because the consultation threw up important questions around sex and gender identity, as we have heard this afternoon.

The bill’s purpose is straightforward: to make answering census questions about prescribed aspects of gender identity and sexual orientation voluntary. Given the sensitivity of such questions and concerns that some respondents might understandably have about intrusion into their private lives, the voluntary nature of the questions is of the utmost importance.

Since the 2011 census, extensive research, including the National Records of Scotland’s “Census 2021 Topic Consultation Report”, has built a strong case to justify the inclusion of questions on sexual orientation and gender identity. That is relevant to the public sector equality duty that is placed on authorities to eliminate discrimination and advance equality of opportunity.

Robust data on sexual orientation and gender identity will inform future policy and ensure best practice across Scotland. For example, accurate information on the size and geographic spread of the transgender population will help us to plan gender dysphoria services more effectively, thereby ensuring that resources are placed where their impact can be optimised.

To gather that data, the bill adds gender identity and sexual orientation to the schedule of matters about which particulars might require to be given. It also provides a power to prescribe aspects of gender identity, such as transgender or trans history, for the purpose of making questions about those aspects voluntary. Of course, the precise form of the questions will be considered as part of the census order and census regulations procedure set, which is usually scrutinised by Parliament the year before the census takes place. It is not within the scope of the bill.

I am pleased that the cabinet secretary confirmed that she will work with the committee after stage 3 and throughout 2019, so that we may properly scrutinise the census questions before they are formally considered by Parliament. That will allow a more evidence-led approach, to ensure that the questions are as robust as possible. Undeniably, these are sensitive issues and, during evidence sessions, I was impressed by the measured and considered tone that witnesses used, despite their—at times—diametrically opposite opinions.

Based on evidence from contributors ranging from academia to equality organisations to women’s groups, our report makes key recommendations, some pertaining to the precise question forms rather than the Census (Amendment) (Scotland) Bill.

First, we recommend that the mandatory sex question in the 2021 census should remain binary. That is based on the evidence of organisations such as Woman’s Place UK, which maintains that

“An individual’s biological sex is an immutable characteristic” and that, because sex is a protected characteristic under the Equality Act 2010, it should not be conflated with gender identity. I trust that the Government will heed the committee’s clear view on the phrasing of the mandatory sex question and take it forward as subordinate legislation is developed.

I am pleased that the Government is committed to amending the Census (Amendment) (Scotland) Bill at stage 2 to ensure that gender identity and sex are not conflated.

As the Equality Network suggested, if “including gender identity” was removed from the bill, that would leave paragraph 1 of the schedule to the Census Act 1920 regarding the mandatory sex question unchanged. “Trans status” could then be added as a category on the same basis that is proposed for “sexual orientation”.

Another key recommendation is for all guidance relating to the 2021 census to clarify that intersex does not fall within the term “trans”. Again, I am pleased that the Government has confirmed that the NRS will work with stakeholders to develop guidance that uses the appropriate language and terminology. The evidence emphasised that intersex should not be viewed within the prism of gender identity; it is a medical condition. I particularly thank dsdfamilies, which is an information and support charity that promotes the rights and wellbeing of children with physical sex developmental differences, for its illuminating evidence.

I support the principles of the bill and, given the societal shifts that Scotland has experienced since 2011, I believe that changes to the census are appropriate.

Thanks to the thoughtful contributions of all parties, we now have the opportunity to remedy some of the deficiencies that were highlighted by the committee’s report. I look forward to working with colleagues and the cabinet secretary to develop the census order.

Photo of Pauline McNeill Pauline McNeill Labour

The census is vital and it gives us a complete picture—or at least, it should.

G iven that it is conducted only every 10 years, it is important that we get it right. It is an analysis of the character of society and it has vital information on which to make decisions about budgets and about society. I commend Joan McAlpine for an excellent speech on behalf of the committee; it showed how diverse and complex the issues can get, but I well understood everything that she said.

If we want central and local government to offer the best and most responsive public services, policies must be based on high-quality evidence. Moreover, data on sex and gender, as well as ethnic group data, can help to identify the extent and nature of disadvantage in the UK, which is an issue that we are all signed up to tackle. Engender has noted that public authorities are increasingly sharing with it their confusion around how to gather service user data around sex and gender. It has pointed out that the census has an important role in setting a precedent:

“Because of its scale, the census plays an important normative role in shaping how information is gathered in other more frequent or localised data gathering.”

I am grateful to Engender for an excellent briefing on the issue.

As others have said, it is important that people can feel comfortable about answering questions on sexual orientation and transgender status. It is right that the proposed questions are to be voluntary, which is reflected in the committee’s agreement on that issue. I am pleased that the committee took on board the concerns raised by witnesses that the bill at times appears to conflate sex and gender identity, even if that was not the intention, and I am pleased that those concerns will be addressed at stage 2—we need to be clear that there is a big difference.

In a survey by LGTB Youth Scotland in 2017, 85 per cent of LGBT young people said that transphobia was a problem for Scotland and 41 per cent of transgender young people said they had experienced a hate crime or hate incident in the previous year. Given the high level of concern that was raised, it is important that we try to gather the best data that we can and, at a minimum, we try to find out as comprehensively as possible how many people in Scotland identify as transgender. I have long believed that, in its work on equality, this Parliament has a job to do to focus on the rights and needs of the transgender community, and I would welcome finding out the extent of the transgender community through the census.

I also welcome the cabinet secretary’s clarification that “intersex” people will not be included within the term “trans”—to be perfectly honest, I am astonished that a policy memorandum could have mixed up the two. Those two groups should not be and cannot be thought of as one. Other members have described how an intersex person is quite a distinct person.

In my closing remarks, I will speak about the LGBT Youth Scotland recommendation on the question of the privacy of young people—and, in fact, any person in a household. I ask the cabinet secretary in her summing up to speak about what the definition of a household will be in these days of equality. This is one of the most important issues to try to resolve, and the suggestion from LGBT Youth Scotland is that another process could run alongside the census, which would be voluntary. I am absolutely in favour of that; we have to give quite a bit of thought to how to make sure that the data is matched properly and there is no loss of data as a result of the process. I am 100 per cent behind this idea, but I want to make sure that the data matches.

I welcome the committee’s recommendation that the Scottish Government should

“further consult with a range of organisations representing ‘intersex’ people in order to improve the information and specialist services that are available to support children and families of people who have differences of sex development.”

I thank the committee for its excellent work.

Photo of Stuart McMillan Stuart McMillan Scottish National Party

I associate myself with the committee convener’s comments regarding everyone who provided evidence and participated in the stage 1 process.

I have genuinely found the bill to be fascinating and enlightening in equal measure. The strength of the evidence that we heard certainly provided me with a lot to think about and to try to fully comprehend. I did not expect the extent of the evidence to be as broad as it was, given that the bill is so short and relates mainly to facilitating the process of asking a voluntary question.

I am content with the report that our committee has produced and equally so with the cabinet secretary’s response in her letter of 25 February. The cabinet secretary has appreciated the genuine concerns that were raised by those who gave evidence and in the committee’s subsequent report. I am pleased that, at this early stage, she has confirmed that amendments will be forthcoming at stage 2.

I will highlight a few aspects of the report, starting with paragraphs 120 to 129 on consultation. I found the lack of consultation by NRS, in particular with women’s groups, as mentioned in paragraphs 120 and 121, concerning. I thought that there must have been strong reasons for that to have been the case. The cabinet secretary’s reply was helpful in that regard and states:

“No women’s groups responded to the public consultation and some were not established at this early consultation stage.”

As the NRS consultation took place between 8 October 2015 and 15 January 2016, it is possible that, with the upcoming parliamentary elections, the various groups that were in existence may have been focusing on other issues, including the development of their own manifestos. However, having received no response from any of them, I would have hoped that NRS would have gone back to them after the 2016 election. The work is clearly now under way and I am genuinely thankful and pleased that that is the case.

The remainder of my comments have the following two points as their backdrop. First, paragraph 11 of the report states:

The Committee agrees that there has been considerable social change with regard to issues concerning sexual orientation since 2011.”

Secondly, paragraph 75 of the report contains a quote from the cabinet secretary:

“The census does not lead public opinion; the census has to reflect society as it is just now and ask questions that maximise the response rate so that the data can be used.”—[

Official Report, Culture, Tourism, Europe and External Affairs Committee,

20 December 2018; c 45.]

Clearly, the 2011 census would have been appropriate at that time, but it is right that the census goes through a rigorous analysis and process before it next takes place. The committee divided on one issue: whether the mandatory sex question should be binary. It is clearly a defining issue for many people and I appreciate the strength of feeling on both sides of the debate. My decision came down to three points: the ease of gathering the data; how the information gathered will be analysed and used; and the consistency of data gathering. I appreciate that the recommendation will have disappointed, and potentially angered, some people and organisations. However, I believe that the recommendation was made with the best of intentions by those who voted for it. I also believe that my colleagues who took a different position did so for exactly the same reasons.

The evidence that we heard from Professor Susan McVie of the University of Edinburgh was very powerful. Paragraph 60 of the report contains a quote from her evidence:

“It is a fundamental property of research that, in designing a questionnaire, you need to be extremely clear about what you are measuring. Possibly controversially, I think that the General Register Office for Scotland got it wrong when it redesigned the census in 2011 and conflated sex and gender identity”.—[

Official Report

,

Culture, Tourism, Europe and External Affairs Committee

, 13 December 2018; c 4.]

It therefore came as a surprise to read in the cabinet secretary’s letter that the NRS testing seemed to indicate that a non-binary question would lead to a higher response rate. I would be grateful if the NRS could provide further information regarding the testing results and the suggestion of maintaining a binary sex question.

The conflation of sex and gender identity became apparent during the early stages of the committee’s scrutiny, therefore I am sure that it came as no surprise to many people that we highlighted it in paragraph 9 of our report.

Some of my colleagues have touched on DSD Families. I had not heard of DSD Families beforehand and I am grateful for the briefing that we received from it. I was genuinely humbled by what I heard about the challenges that are faced by those individuals and families every single day.

As the cabinet secretary indicated in her evidence and in her letter, the policy memorandum to the bill will thankfully be amended to reflect more accurate descriptions of intersex and trans people. I am also pleased that the committee’s recommendation in paragraph 119 of the report will be progressed.

I welcome the progress of the bill and the amendments that will be introduced at stage 2, and I am pleased to vote in favour of the general principles of the bill.

Photo of Annabelle Ewing Annabelle Ewing Scottish National Party

As a member of the Culture, Tourism, Europe and External Affairs Committee, I am pleased to have been called to speak in this stage 1 debate on the Census (Amendment) (Scotland) Bill.

As we have heard, the bill is very short, with three sections on one page. Notwithstanding that, it has—as we have also heard—generated quite a lot of discussion, given the wider issues that have been raised were not intended to be within the scope of the bill.

Before I turn to some of those wider issues, it is important that I focus at the outset on the purpose of the bill. Its purpose is to ensure that certain questions can be answered on a voluntary basis in the next census, which is scheduled for Sunday 21 March 2021. Indeed, it is the desire to make answering the questions voluntary that triggers the need, paradoxically, for primary legislation.

In the bill as drafted, the questions concerned relate to gender identity and sexual orientation, as we have heard. It was felt that, in the interests of privacy and because of potential sensitivities, it would be best to pose the questions to be answered voluntarily. As we have heard, there has been widespread support for that approach from a range of public bodies, the Law Society of Scotland, various equalities organisations and others. It is worth noting that, when a question on religion was introduced for the first time in the 2001 census, it was included to be answered on a voluntary basis, as we have heard. Therefore, there is precedent for the approach.

Where the bill has generated rather more discussion, that discussion has resulted from what can be regarded only as confusing—if not technically defective—drafting. Specifically, there is a reference to amending the relevant schedule to the Census Act 1920 by inserting the words “including gender identity” after the word “sex” in respect of what broad subject headings questions can be asked on. It was flagged up that that conflates gender identity with sex. Further to the concerns that have been raised, the committee has sought clarification that the bill will be amended at stage 2 to delete that confusing reference. I am pleased to note that, in her evidence, the cabinet secretary agreed to reflect specifically on that point.

That initially flawed approach, together with some rather precipitate comments in the policy memorandum about decisions that will be for the Parliament to make in due course, in respect of the subsequent census draft order, have led to a wider discussion about the binary nature of sex and the mandatory sex question in the census. The mandatory question is not within the scope of the bill.

Evidence was received in that regard from a number of people and organisations, and various points were raised. Evidence was received on the scientifically grounded theory of human sexual dimorphism, and evidence was received that reminded the committee that sex is a protected characteristic under the Equality Act 2010, and highlighted that conflating sex with gender identity is a social construct that is becoming more widespread. Dr Kath Murray commented on the impact of that trend. She stated:

“This blurring, which has the effect of changing what it means to be female, has implications for the protection of women’s rights.”

I am afraid that, in four and a half minutes, I cannot go into the wider issues that the evidence raised.

The Deputy Presiding Officer:

You have five minutes.

Photo of Annabelle Ewing Annabelle Ewing Scottish National Party

Great. My time is going up. Nonetheless, I do not have time to go into the issues in as much detail as I would like. However, it is worth pointing out that Amy Wilson, who is the head of census statistics at National Records of Scotland, said in evidence that even if there were to be a non-binary sex question, the NRS would just

“randomly assign people back into the male and female categories”—[

Official Report, Culture, Tourism, Europe and External Affairs Committee,

20 December 2018; c 43.]

and that it would still produce outputs on a male and female basis. That rather begs the question what the point would be of including a non-binary question in a census that is supposed to adhere to the highest statistical standards and provide longitudinal consistency.

The ONS in England and Wales has proposed that the mandatory sex question remain binary for the 2021 census. As we have heard, the committee recommended—by six votes to one with two abstentions—that the mandatory sex question remain binary. I entirely support that recommendation.

I very much welcome the cabinet secretary’s commitment to consider further how people’s privacy can be respected when they are completing the census in their own households, which is a point that I raised at committee.

Photo of Claire Baker Claire Baker Labour

This has been an interesting debate that has provided Parliament with an insight into the broader issues that the committee has been considering through this fairly humble bill. It might be surprising, given the degree of debate, that the expectation is that the bill will pass at stage 1, as the committee recommends.

Although the sex question has been a key focus of the debate, members have identified other issues. Pauline McNeill talked about the LGBT Youth Scotland briefing that we received, which was very helpful and highlighted the growing need for the census to support confidentiality because questions are becoming more intimate. I urge the cabinet secretary to consider the proposals from LGBT Youth Scotland, and I welcome her comments on privacy rights, on which I will reflect.

Annie Wells raised the issue of the 2011 self-identification model. Guidance was provided in the 2011 census that allowed self-identification on the sex question for transgender men and women. That was available only if the person sought it online, which raised the question how widely understood the position was. The committee heard evidence that the approach in the 2011 census compromised the data, and it heard counter-evidence on the extent of that impact. That is an issue on which the cabinet secretary needs to reflect.

I looked at the Gender Representation on Public Boards (Scotland) Act 2018, which was recently passed. It has quite a prescriptive transgender definition, because it states that the term “woman” includes someone who has

“the protected characteristic of gender reassignment” only if

“the person is living as a woman” and intends to undergo gender reassignment.

The guidance for the 2011 census was different, in that it enabled self-identification as a different gender. I wonder where all that fits with the ongoing review of the Gender Recognition Act 2004. The lack of consistency is problematic.

Although the debate about whether to change the existing binary question was a key concern of the committee and the witnesses, the committee was taking evidence in the dark. It was unclear what the Government’s intention was: today’s debate has not made it any clearer.

The Scottish Government and NRS have created a situation that, it appears, they did not anticipate or prepare for. The policy memorandum to the bill says, in the section concerning the sex question, that

“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.”

However, following its appearance at the committee at the end of our evidence-taking sessions, NRS wrote to say:

“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.”

The cabinet secretary said:

“the policy memorandum says that the 2021 sex question will have a non-binary response option. It should have said that that approach is being considered and tested.”—[

Official Report, Culture, Tourism, Europe and External Affairs Committee,

20 December 2018; c 28.]

The lack of clarity was very unhelpful, and that area of debate has dominated the evidence, even though it is not part of the bill. As the convener outlined, the ONS has confirmed that there will be no change to the question in its forthcoming census.

Ross Greer outlined the arguments supporting a change to the sex question. I understand that it would enable people to answer the question based on how they live their lives. I appreciate the feelings of a non-binary person that the choice that is presented does not reflect their lived experience. However, NRS said in evidence that it would then 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. We have discussed with stakeholder groups the fact that we would randomly assign people back into the male and female categories because, as the numbers are expected to be very small, that will not affect the statistical distributions.”—[

Official Report, Culture, Tourism, Europe and External Affairs Committee,

20 December 2018; c 43.]

That begs a question about how that information contributes to the data that is collected by the census, which I understand is the purpose of the census. I would welcome clarity on what purpose a change to the binary question would serve. Perhaps the cabinet secretary will respond to that. There is also an assumption by the NRS that the numbers will be very small, but I am not sure that the committee was convinced that we could be confident of that. Therefore, there is a lack of consensus on the approach, which makes it problematic.

As others have said, only now, for the 2021 census, is it being proposed that a voluntary question on sexual orientation be included. The policy memorandum gives as the reason for that:

“A question on sexual orientation was considered for inclusion in the 2011 census. However, the level of public acceptance of the question was not considered sufficient to merit its inclusion in that census.”

Given the evidence that the committee heard, there are clearly still questions to be answered about the level of public acceptance of a change to the binary sex question. Consideration must be given to other ways for the census to meet the needs of non-binary people, so a two-stage question has been suggested.

Stuart McMillan talked about inadequacies in the consultation. The debate has really grown since changes to the Gender Recognition Act 2004 were proposed, which is the nub of the debate. It is unfortunate that the census will come before resolution of that issue.

Mr McMillan also said that the census does not lead public opinion, which is different from the view of Ross Greer. I might be misrepresenting him, but he seemed to talk about the census moving the debate forward and taking a lead on the equalities agenda. Perhaps the cabinet secretary will provide clarity on her views about the purpose of the census.

The debate at committee has been a microcosm of the wider debate that is taking place around possible changes to the Gender Recognition Act 2004, but we should not lose sight of other issues that impact on LGBT people. The briefing from LGBT Health and Wellbeing highlights some of those issues. The LGBT population is subject to multiple disadvantages; for example, 74 per cent of LGBT Health and Wellbeing’s service users report disability, compared with 20 per cent of the general population, and 27 per cent report unemployment, compared with 3.7 per cent of the general population.

We know that prejudice towards the LGBT community exists, and that physical assault and verbal assault are too common. Access to appropriate health services is not always easy, and people can face isolation from their families and communities. Although I fully recognise the concerns that have been expressed about enabling self-identification for trans people, and what that means in terms of women’s spaces and women’s rights, we must also recognise that members of the LGBT community are themselves often vulnerable and open to exploitation and assault. We need to chart a path through that debate in a sensitive and understanding manner, while recognising and addressing everyone’s concerns about the impact of the changes and working to achieve understanding and consensus.

Photo of Alexander Stewart Alexander Stewart Conservative

I am pleased to have the opportunity to contribute to this important debate on stage 1 of the Census (Amendment) (Scotland) Bill and to close on behalf of the Scottish Conservatives.

It is clear that, as our society changes over time, we must adapt the way in which we record information and reflect those changes. The Equality Act 2010 requires public authorities to fulfil certain public sector equality duties. Public bodies should aim to eliminate discrimination, harassment and victimisation, advance equality of opportunity between different groups and foster good relations between them. That is very much the theme of where we are today.

It is vital that we have a rich set of data and information that will allow public bodies to fulfil their equality duties. The bill, with its introduction of the two voluntary questions, will undoubtedly help to plug some of the information gaps that have been recognised, particularly in relation to sexual orientation and gender identity.

Submissions from a wide range of organisations and individuals have shown how much they support the inclusion of those questions. As a member of the committee, I pay tribute to the many individuals who gave us oral and written evidence. It is right that those questions are voluntary, as sexual orientation and gender identity can be challenging for many individuals at different stages of their lives.

As we know and have heard, LGBT people often face discrimination and abuse, with the result that they find themselves alienated, discriminated against and challenged. We need to do all that we can to address that, but making it compulsory to answer questions on sexual orientation and gender identity and threatening people with a fine for non-compliance is not what we should be doing. We should make sure that people feel that their views and opinions are taken on board and recognised.

It is worth noting that the UK Government’s white paper on the 2021 census, which was published last year, reaches similar conclusions on the issue of questions about sexual orientation and gender identity. As with the Scottish Government’s proposed approach, it will not be compulsory for people to give their sexual orientation or gender identity if they do not wish to do so. Ministers have indicated that the right not to answer those two questions should be made clear in legislation before the census is taken.

As other members have said, it is important to note that the bill will not change how people legally change their gender; that is not what we are discussing. The issue of gender identity will be debated separately when the Scottish Government’s proposed gender identity bill comes before the Parliament.

It has been an interesting debate in which there have been many passionate contributions from members who feel strongly about where we are. My colleague Annie Wells noted the committee’s concerns about the conflation of sex and gender identity, as well as its concern that there was a lack of awareness of the online guidance on the approach to self-identification that was taken in 2011 and a lack of clarity surrounding that guidance.

I am delighted that the cabinet secretary has taken on board the fact that the consultation process must be robust and that further consultation requires to be done to ensure that people have confidence in the process. Some individuals and organisations felt that there had been a lack of consultation, and that has now been acknowledged.

Annie Wells also commented on the cabinet secretary’s clarification that intersex people will not be covered by the term “trans”. I welcome the recognition that their needs are different and the commitment that further guidance on the issue will be provided.

Joan McAlpine talked about how important it is to protect the privacy of young people in the census process. That is vital. We must ensure that the data that we collect is robust, but we must also protect individuals who feel threatened or who face a conflict. The information that we provide in that regard must be clear.

Claire Baker highlighted the fact that there was agreement across the committee on many aspects of the bill but that it is necessary to have accurate data. The complexity of the issue must be looked at, and changes will have to be made at stage 2.

Alex Cole-Hamilton said that we live in enlightened times and that it is vital that we recognise people’s rights. The policy behind the bill matters. The bill might only be small, but it matters. We must support communities and individuals who feel marginalised and threatened.

Jamie Halcro Johnston talked about the sensitive nature of the bill and the committee’s approach to it. We appreciate the fact that censuses have been going on since 1801, but it is important that the data that is collected is accurate, because there have been shortcomings in the past that should not be repeated in the future.

Annabelle Ewing spoke about the evidence that the committee received. We received a lot of evidence from different organisations and individuals who feel passionately about the census process and wanted to get their views and opinions across. The members of the committee certainly heard that. The importance of the fact that sex is a protected characteristic has also come through. It is vital that we get the right information and that people’s privacy is protected during the process.

The Scottish Conservatives agree with the broad principles of the bill, but we would like a number of important changes to be made. For example, we would like further clarification to be provided on the distinction between mandatory and voluntary questions and on how the voluntary questions on issues such as gender identity will be defined and structured.

We will support the bill at stage 1, but we will consider lodging amendments at stage 2. Stakeholders have made it quite clear that we need to take on their views and opinions so that we take a balanced approach. The idea of the census is to collect the correct data and make it available for everyone to use. It is therefore vital that we do all that we can to take a balanced approach. As I have said, we owe our support to those individuals who have come forward and told us what they believe.

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

I am grateful to my parliamentary colleagues here today for a sensible debate on very sensitive matters. The committee and I recognise that there are strong views on the issues—some of them have been demonstrated today—but it is vital that the debate is conducted in a respectful manner, as it has been in this parliamentary debate.

The Census (Amendment) (Scotland) Bill has been the first opportunity for Parliament to get involved in the 2021 census, but this really is just the start of our journey. Jamie Halcro Johnston, I think, mentioned that stage 1 is perhaps not the time to be discussing the content of the questions—which is true—and that the bill is not necessarily the place to discuss the wider issues of gender recognition, which some members have touched on, but we are where we are. We have to reflect on and address the evidence that was given during the witness sessions, because we will have to work through those issues when we get to deciding on the questions for the regulations.

It is really important to underline the point that most people agree that the time is right to ask two specific questions on sexual orientation and transgender and that answering them should be voluntary. That is the purpose of the bill, but clearly it has stimulated interest in wider census matters.

I am very proud to have portfolio responsibility for the census, and I am very keen to use the next two years to prepare for a successful and meaningful census. It is only 752 days until the census on 21 March 2021, so the clock is very much counting down.

I mentioned in my opening address that the people of Scotland must have confidence in the census, as they will be sharing their personal information—the issues discussed today demonstrate just how sensitive that information is. We must meet their legitimate expectations by ensuring that their data is kept safely and securely. We must also keep the trust of the people of Scotland by asking the most appropriate questions, which reflect our society at this time, and doing so sensitively.

Photo of Maurice Corry Maurice Corry Conservative

Will a question or response option be included in the census to identify armed forces veterans?

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

I am delighted to highlight that we have already agreed to do that. I am surprised that Maurice Corry is not aware of Graeme Dey’s announcement about our intention to include a question on veterans in the census as part of the veterans debate some time ago. Again, that will be subject to the agreement of Parliament.

It is important that we deliver on the trust that we have with the people of Scotland. We have done that over 200 years of data collection, and we should be very proud of our achievements. Some questions have come and gone, but we have always been consistent in our professional approach to the census and tracking the core data.

Although a significant focus on 2021 is on its being the first digital census—it will primarily be online—asking the right questions in the most appropriate way is still at the heart of census. The National Records of Scotland has carried out significant stakeholder engagement over recent years, and continues to take forward that work, to ensure that we have the best possible census.

The discussions on the bill have contributed to that process with, for example, National Records of Scotland now engaging with women’s groups who responded to the committee’s call for evidence. Some of those groups had not even existed at the time of the initial public consultation. I wish to be very clear that no stakeholder has intentionally been excluded from engagement and consultation by NRS; everyone with an interest in census questions is encouraged to engage with the process.

Even though extensive testing of options for the questions was carried out prior to the bill, which included thousands of people across Scotland’s society, some views have emerged recently as a response to the call for evidence. The door is still wide open, and we welcome the views of others.

I will now address a number of points that have been made in the debate. In response to Joan McAlpine’s question about the wording in the bill, I know that the current wording is “sex (including gender identity)”. Associating gender identity with sex can lead to conflation of the two, and we are open to addressing that issue and, indeed, identifying where the transgender question could come into this.

One important point that I should highlight is that, although it looks as if in England and Wales the ONS will continue with a binary sex question, it will be self-identified, as it was in 2011. That is a genuine issue that the committee and, indeed, all of us will have to consider: if we do not have a self-identifying binary question, and if the question itself is mandatory, how will transgender people, in particular, be able to answer it? How do we give them opportunities to address the issue? A non-binary sex question would avoid the kind of male and female self-identification that you would get with a binary question, and such points will have to be considered. The sex question is, as we will remember, mandatory, but how can people answer it if options are not available? The fact is that we need people to complete the census. The important issue, particularly for transgender people, is to have the voluntary question, and I think that we all agree that that is vital.

There were questions about which method would get the best response rate. The committee seemed to assume that a binary question would, but it might surprise members to learn that when more than 5,500 people were tested, the binary sex question had—marginally—the lowest level of response. We have shared that information with the committee, but I would also point out that the two-stage question, which I think Claire Baker referred to, had a much lower response rate, too. Credibility of approach and the ability to count are absolutely important in all of this, and that information will be considered when we come to the next stage of the process and look at the census regulations.

Photo of Joan McAlpine Joan McAlpine Scottish National Party

Does the cabinet secretary recognise that a majority of committee members opposed a non-binary sex question, because of the longitudinal quality of the data? The male/female question has been asked since 1801.

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

Yes, I recognise the longitudinal aspect to this, but the committee also said that a binary question had a higher response rate, and that is not necessarily the case; but we can look again at such questions. The question in the 2011 census was self-identifying, which is something that the committee will have to consider when we come to the next stage of the process and to the questions themselves.

Annie Wells was absolutely right to say that we need clarity and to strike a balance, and on Claire Baker’s very important point about future proofing the census, I have to say that, based on our experience to date, we will probably have to introduce legislation every 10 years in order to debate issues that might be controversial. Those who were around in 2011 will remember that the issue of language was somewhat controversial at the time, and we will need to be able to reflect on such matters.

Ross Greer made some very important points about the issue of equality. However, that brings us back to the question of whether the census should lead the debate or reflect the society in which we live, and I think that it is important for it to reflect society. As always, Stewart Stevenson raised some very interesting issues; indeed, he made the fundamental point that the census is a statistical not an individual service. It is important that it is authoritative and that people have confidence in it.

I have already addressed Stuart McMillan’s point about better response rates. On Pauline McNeill’s question about the definition of the term “householder”, there is such a definition, but given the time and the detail that it goes into, we will send it to Ms McNeill to ensure that she has clarity in that respect.

Everyone who has contributed to the debate has touched on different aspects of the committee’s assessment of and report on the bill. The committee has concluded that the bill’s current drafting, particularly the use of the term “gender identity”, has created some confusion and a perception that sex and gender identity are being conflated. As we do not want that kind of conflation, amendments will be lodged at stage 2 to deal with the issue. I want to make it very clear that it was never our intention to conflate sex and gender identity, and I note the committee’s support for the Equality Network proposal to amend the bill to address the matter. I should say that our thinking on this is very similar to that of the Equality Network.

As members have been aware for some time, section 1 of the Census Act 1920 provides the enabling power that underpins the taking of the census. It allows the making of the census order, which will be the next stage of the regulations, as we move towards the detailed questions.

NRS will be working closely with the committee in the run-up to the laying of the census order and census regulations. I am keen to ensure that there is sufficient time to ensure comprehensive understanding of all matters in Scotland’s 2021 census. It may be a one-page bill but it addresses some of the fundamental issues that confront society just now. Today, underlying everybody’s contributions was the idea of equality and the importance of championing equality in this Parliament, and I am very pleased about that.