Introduction

The case of Fair Play for Women Ltd v Registrar General for Scotland and the Scottish Ministers ([2022] ScotCS CSIH_7) addressed the legality of guidance issued by the National Records of Scotland concerning the completion of national census returns. Specifically, the dispute centered on whether individuals are legally compelled to answer the census question "What is your sex?" based solely on the sex recorded on their birth or Gender Recognition Certificates (GRC), or if they may use alternative legal documents such as passports.

The petitioners, Fair Play for Women Ltd, challenged the guidance, arguing that allowing respondents to reference documents other than their birth certificate or GRC for the sex question could lead to unlawful answers. The respondents, including the Registrar General for Scotland and Scottish Ministers, defended the guidance as being within legal bounds and reflective of evolving understandings of sex and gender.

Summary of the Judgment

The Scottish Court of Session's Inner House, comprising Lord Malcolm, Lord Boyd of Duncansby, and delivered by Lady Dorrian, upheld the guidance issued by the National Records of Scotland. The court determined that there is no statutory requirement mandating that the sex reported on the census must strictly adhere to the sex listed on a birth certificate or GRC. Instead, the term "sex" should be interpreted based on its ordinary and contextual meaning, allowing for flexibility in responses that reflect an individual's lived reality.

The court concluded that the guidance did not sanction or authorize unlawful conduct, as it did not compel individuals to provide false information if they chose to reference alternative legal documents like passports. Consequently, the reclaiming motion brought forth by Fair Play for Women Ltd was refused.

Analysis

Precedents Cited

The judgment referenced several key cases to contextualize the interpretation of "sex" and "gender" within legal frameworks:

• R (Elan-Cane) v Secretary of State for the Home Department [2022] 2 WLR 133: Addressed issues related to non-binary gender identification and the refusal of a non-gendered marker on passports.
• Chief Constable of West Yorkshire Police v A (No.2) [2005] 1 AC 51: Discussed the definition of sex in the context of legal responsibilities and rights.
• Bellinger v Bellinger [2003] 2 AC 467: Focused on the capacity to marry and the implications of sex classification on legal rights.
• R(N) v Walsall Metropolitan Borough Council [2014] PTSR 1356: Emphasized the importance of updating legislative interpretations to reflect societal changes.

These precedents collectively underscore the judiciary's approach to balancing statutory interpretations with evolving societal understandings of sex and gender.

Legal Reasoning

The court's legal reasoning hinged on several core principles:

• Statutory Interpretation: In the absence of a specific definition within the Census Act 1920, the court adopted the ordinary and contextual meaning of "sex." This approach aligns with the principle that legislation should be interpreted in a manner that reflects contemporary societal norms.
• Purpose of the Census: Recognizing that the census serves as a tool for population data collection rather than conferring legal rights, the court deemed flexibility in responses appropriate.
• Distinction Between Sex and Gender: While acknowledging the traditional binary understanding of sex, the court accepted that public usage often conflates "sex" and "gender," necessitating a more nuanced interpretation in contexts like the census.
• Legislative Evolution: Referencing R(N) v Walsall Metropolitan Borough Council, the court emphasized that legislation must adapt to societal changes and should not be interpreted as static texts.

The court also addressed the petitioners' concerns about potential unlawful conduct but determined that the guidance did not explicitly mandate false reporting, thereby not authorizing any unlawful act.

Impact

This judgment has significant implications for future censuses and similar data collection efforts:

• Enhanced Flexibility: Allows individuals to answer the sex question based on a range of legal documents, reflecting their current gender identity.
• Legal Clarity: Clarifies that census responses regarding sex need not be strictly bound to birth certificates or GRCs, reducing legal ambiguities.
• Precedent for Future Cases: Sets a benchmark for how courts may interpret statutory terms related to sex and gender in other legislative contexts.
• Support for Transgender Rights: Reinforces the recognition of diverse gender identities in official data collection, aligning with contemporary human rights perspectives.

Additionally, the decision highlights the judiciary's role in ensuring that long-standing legislation remains relevant and adaptable to societal transformations.

Complex Concepts Simplified

Conclusion

The Fair Play for Women Ltd v Registrar General for Scotland judgment marks a pivotal moment in the interpretation of "sex" within statutory contexts. By affirming that the term should be understood through its ordinary and contextual meaning, the court acknowledged the evolving societal understanding of sex and gender. This decision not only upholds the flexibility and relevance of the Census Act 1920 in contemporary times but also reinforces the legal system's capacity to adapt to changing social norms without necessitating rigid, outdated definitions.

Moreover, the judgment underscores the importance of legislative frameworks that accommodate diversity and ensure that official data collection methods are inclusive and reflective of the population's true demographics. As societal understandings continue to evolve, this case serves as a foundation for future legal interpretations that balance tradition with progress, ensuring that laws remain both fair and applicable in a dynamic world.