Census guidance on the sex question ruled unlawful

Census day is 21 March 2021. Yesterday, in a challenge brought by Fair Play For Women, the High Court ordered the Office for National Statistics to correct the guidance they provide online about how to answer the question “What is your sex?”  

Until yesterday, the guidance for the 2021 census said: 

If you are considering how to answer, use the sex recorded on one of your legal documents such as a birth certificate, Gender Recognition Certificate, or passport.” 

Most people will have no difficulty answering that question, and won’t need to go looking for online guidance to help them. But for people who identify as trans or non-binary, it’s not quite so straightforward. Should they give their biological sex, or should they answer according to their gender identity? If their gender identity is something other than male or female, how should they deal with the fact that the question only offers those two options? 

What did the old guidance mean? 

The guidance told people that they could answer the question by reference to “one of your legal documents, such as a birth certificate, Gender Recognition Certificate, or passport.”  It takes a GRC to get your sex changed on your birth certificate, but it’s surprisingly easy to change the sex recorded on other official documents: in many cases, you just ask.