ONS concede defeat over sex question

The Office for National Statistics have been forced into an embarrassing eleventh hour climbdown by campaign group Fair Play for Women following their defeat at an interim hearing at the High Court on 9th March reported here by Lesbian and Gay News. The ONS were due to repeat their argument that “what is your sex?” is a “difficult question” and that sex itself is an “umbrella term” encompassing self-identification at a judicial review hearing tomorrow but backed down agreeing to pay FPFW’s substantial court costs.

The crowdfunded case by FPFW means the guidance provided on the question “what is your sex” refers those taking the survey only to birth or gender recognition certificates, rather than the wider range of documents the ONS originally prescribed and which would have opened the door to self-identity. The case is likely to raise serious questions over the use of taxpayer money and the extent to which the guidance on the question was influenced by Stonewall, (not least because the ONS is a member of the Stonewall “diversity champion” scheme). The case may also call into question the judgment of Cabinet Office Minister Michael Gove, as it is his department (also Stonewall champions) which bears overall responsibility for the census and while the Cabinet Office did not lodge detailed grounds for the 9th March interim hearing, the Minister opposed the application.

Despite the fact the government’s legal advice is private, the climbdown is most likely to have been the result of an assessment that the ONS would go on to lose the case. While the census will now proceed with lawful guidance, the absence of the final hearing tomorrow or a Court of Appeal judgment after that means that the wider questions of legal definition of sex by public bodies is still an open one. FPFW point out that the Equality and Human Rights Commission and NHS England (both Stonewall champions) also supported the ONS position in meetings in 2020. The resolution here is therefore unlikely to be the last time the courts are invited to rule on the increasingly political and tense question of how sex should be defined in law.

The resulting position is perhaps an unhappy one with some voices on social media saying they intend to complete the census on the basis of self-identification, a move that may in fact serve to skew figures (and therefore public service provision) inaccurately and away from their interests. Critics may well argue this is a natural side effect of the ONS choosing to fight this matter in court. The litigation undoubtedly raised the temperature on an already difficult issue and seems all the more pointless in view of the fact the census already asks a voluntary question on gender identity. 

The case also raises serious questions over the ONS decision to press ahead with releasing the guidance having received a pre-action letter indicating that a judicial review would follow a failure to act lawfully – a move which necessitated an announcement that participants could re submit their completed censuses.

The case highlights the growing importance and power of crowd funded legal actions with a figure close to £100,000 raised by FPFW in an extremely short time frame. Knowing that campaign groups can swiftly mobilise the public to fund successful litigation is likely to be an important development in this tense and increasingly litigated area of public policy. Decision makers may be well advised to look beyond their traditional normal stakeholder meetings and consider the reaction of the general public.  

Dennis Kavanagh is a legal commentator and barrister (non-practising).