Thread by @fairplaywomen

#FPFWvONSCensus

Judge: Mr Justice Swift
Defence Counsel: Sir James Edie QC
Claimant Counsel: Mr Jason Coppel QC

/1

Permission for live tweeting granted by the Judge.
Some IT technical issues delaying the start of the hearing /2

Claimants Counsel sets out the legal arguments.
Census law mandates citizens to answer "What is your sex" according to their legal sex (birth or acquired by GRC).

Guidance conflates and confuses the concepts of sex and gender identity /3

JC explains that the Guidance says sex on passport and other documents is not legal sex. Gender markers can be updated according to self-declared gender identity and NOT legal sex /4

Explaining how small misclassifications of males as females can have large distorting effects on female stats. Gives examples regarding crime, education and employment. /5

In 2016 ONS said in its research paper "sex, as biologically determined, is one of the most important variables collected.. it is critical that data collected for gender identity does not adversely impact sex data"

This is the claimants case. That is now does. /6

In the ONS Equality Impact Assessment the defendant emphasises the importance of collecting accurate data on sex. /7

JC touches on Iain Bells claim of 'lengthy process of evaluation' that led to the guidance. But points out that Ian Diamond (head of ONS) said on BBC Radio 4 on 28th January it would be legal sex. Plus Bell himself wrote to Prof Sullivan saying ONS had "settled on legal sex" /8

So at end of January ONS position was that Guidance should refer to legal sex (birth and GRC only). But when guidance published on 12th Feb is said something different. No explanation from defendant about what changed this fundamental change of position /9

Claimant sent pre-action letter on the 19th February. But Census went 'live' on 22nd. Judge questions how people know they can submit as off 22nd Feb. JC explains how people are guided to fill on Census day (21st March) /10

Judge surprised that Census website went live a month before Census day. JC explains that people have to change any early submissions if things change before census day. Judge says "if there's a problem with withdrawing Guidance now it's one of the ONS's own making" /11

Defendant claims we delayed bringing the case - we should have known they would bring this guidance - this is despite the head of ONS saying it would be legal sex at start of Feb. /12

JC explains Census Order states that one of the 'demographic particulars' that must be asked is 'sex' with options of either male or female. It is a crime not to provide an answer. This is a factual question not one of 'what best describes your sex' /13

Judge says "ONS doesn't get to choose what sex is". ONS must simply do as its required to by the Census Order. JC says: The question must be "what IS your sex" /14

The Guidance allows a choice of correct answers - sex on birth certificate can be different to sex on passport. This must be wrong because there can only be one right answer. /15

JC refers to definition of sex in normal language and law. Common law position (Bellinger) is that sex is a matter of biological sex. Judges questioning if/how GRA2004 has changed that interpretation. /16

JC says meaning of male and female has not changed - it can only be sex at birth or what it becomes under GRA2004. It CANNOT be a matter of self-identity /17

Defendant did not ask itself "what does the legalisation means in relation to male and female". It is a strong case that sex is not self-identified. /18

JC now turns to request for interim relief (order to force ONS to remove guidance now pending full JR). It must be in the public interest. Claimant is not asking judge to stop the census. Just to remove unlawful guidance so it can proceed lawfully /19

JC says granting interim relief is better than keeping unlawful guidance in place because i) ONS will not be collecting the data its required to and people will be answering incorrectly ii) important data on birth sex gets lost. /20

Legal sex = birth sex (for all but 6000 people). /21

Defendant has claimed birth sex is not lost because can be imputed from answers on the gender identity question. We dispute this because GI question is voluntary and non-specific answers won't help deduce sex at birth. /22

ONS has never said that collecting sex data is not necessary because is can be imputed from the gender identity question. It is simply wrong to say this. /23

JC says correcting online guidance is simple. Gives example of how twitter account gave out wrong guidance and then the next day corrected it. Shows how easy it is to make corrections quickly. /24

Judge: options open could be interim declaratory relief confirming sex = legal sex or to order removal of the words 'such as' and 'passport' from the existing guidance. /25

Sir James now sets out ONS's defence.
Sex must be a matter of statutory interpretation.
The answer is only constrained only by what the respondent believes their sex to be. It is not related to what's on documents. /26

The Census law uses "umbrella terms". It does not constrain the definition of sex. There could be a range of possible concepts of sex; social, legal, physical etc. It isn't restricted to birth certificate and GRC only /27

Judge "I'm having difficulty understanding" /28

JE: "Sex can include a range of possible concepts; biological, social and so on". A 'modern dictionary definition' includes social aspects of sex. /29

JE: Umbrella terms such as race, ethnicity, sex means ONS can ask a range of questions about these topics.

[not clear here if ONS thinks 'age' is an umbrella term 'you're only as old as you feel']

/30

Census is designed to elicit useful data on different topics. Judges asks why did Census amendment add a new gender identity question if it could have been asked under the umbrella of sex. /31

JE says that was so gender identity could be voluntary rather than mandatory (like sex is) /32

JE: Bellinger defines male and female in reference to marriage only. It cannot be used as a definition for other legislation /33

JE: Sex is not an 'Hermetically sealed concept' in census law. It could include 'passport sex'. /34

Jackie Weaver strikes! Claimant Counsel has disappeared and is now in the waiting room /35

He's back! /36

JE: says sex can be a matter of social identification.

Judge: What's 'social identification' if its not self-identification? /37

JE: sex can be formally acknowledged by the state as 'passport sex'. You need a letter from a doctor to get one. You can't just turn up at passport office and self-ID as female. /38

JE: There is no such thing as 'legal sex'.
Judge says it means "sex as recognised at law".
Claimant says this means birth certificate or GRC /39

JE: 'Sex' is wide enough to be covered by any document issued by the state. There is no 'sex act' that sets out what sex can be. /40

[hmmmm what's the GRA2004 then?]

[So despite the public consultation on GRA reform and government deciding sex cannot be self-identified. The ONS says you don't need a GRC to have sex legally recognised because it can be what's written on any document] /41

9s
JE: it is possible to have a range of answers [to what is your sex].

JE referring to Hansard now "I don't think we're in Hansard territory are we" says Judge

/42

JE: Looking at Hansard debate on census draft guidance in 2019. It was contemplating that the answer could be self-identified.

Judge "this doesn't really help anyone" /43

JE: Census act says individual must not put a 'false answer'. so its ok as long as individual doesn't think its false when answering /44

JE: There hasn't been a change in position. The form of Guidance was doing to be 'legal/official documents'.

Judge: But Bells email on 28th January suggests 'legal sex according to birth certificates and GRC' /45

Judge "It seems a bit odd" what he writes is "all the more baffling" /46

[how ONS can claims there's been no change in position when we have evidence in writing and on radio that at end of Jan they were saying legal sex!] /47

JE now turns to interim relief. On balance of convenience it should not be granted. If guidance altered it will i) 'people will be unguided by the difficult concept of sex' /48

ii) Undermines expert experience and judgement of the ONS, and the nature and care of that engagement with the trans community. Response rates could be impacted /49

iii) The census has gone 'live'.
Judge - how many people have replied?
Numbers so far among 3 million so far. /50

iv) Nothing to indicate that conflation of sex and gender identity is damaging in statistical terms. /51

Jason Coppel replies:

Defendant does not appear to accept that the guidance is a position on self-identity. It plainly does because passport can be changed on demand (just needing a doctors note - not a diagnosis) /52

Defendants contention that statutory interpretation of sex = sex written on any document is 'hopeless' /53

Bellinger and the GRA2004 defines sex. GRA2004 IS a "sex act" /54

Interim relief: Should be some scepticism on defendants contentions to harmful effect of changing the guidance.

ONS's own evidence has user testing that tested 'no guidance' and this did not cause problems with anyone being able to answer /55

Judge needs time to think about decision. Proposes to deliver judgement at 2pm.

Court adjourned /56

It's now 2pm. Court rises /57

Judge: Is there a serious question to be tried and does the balance of convenience require interim relief? /58

Judge: Time is short. Interim relief now would likely be an effective removal for the whole of the census /59

Judge: There is no dispute that the sex on a passport may be some form of self-identification. The claimant has a strong legal case on this issue. /60

Judge: "I am satisfied that the claimant has a strongly arguable case." /61

Judge: "I consider there is a strongly arguable case that there is a clear distinction in Census legislation between particulars of sex and that of gender identity" /62

Judge: Gender identity question is to capture information about persons own perception of gender. "ONS arguments are not sufficiently persuasive" ..... that sex is an 'umbrella term' /63

Judge: Meaning of 'What is your sex' in the census Act is tolerably clear /64

Judge: I doubt there would be any breach of article 8 human rights, and if there were it would be proportionate and justified. /65

Judge: ONS said definition of sex is a matter for it to decide. The Census act does not prescribe this. "ONS is not the arbiter of what the particulars mean". /66

Judge: "I do not doubt that the ONS has the power to publish guidance on the census questionnaire. It is expedient for its functions. However, if guidance is given it must match with the meaning permitted by the act." /67

Judge: This meaning is not the sex someone has identified. I am satisfied that the guidance is wrong. It does not match the question being asked. /68

Judge: I must consider which option is open to the court if least damaging if court wrongly gives interim relief. /69

Judge: Entire removal of the sentence in the Guidance is unnecessary. Simply necessary to remove reference to documents that do not contain sex. /70

Judge: I do not agree that any staff training required to use changed guidance would be difficult /71

Judge: Guidance is only found on line and can be easily removed /72

Judge: Any person looking at the form will likely realise that the sex question is not a question about gender identity /73

Judge: There is no dispute that sex is an important demographic variable /74

Judge: I find it surprising that ONS says that1/5 of households have already completed the census when it is clear that census day is 21st March /75

Judge: ONS's claim that sex can be worked back from the gender identity question is speculative. "Cart tries to drive the horse" /76

Judge: Interim relief GRANTED!!!!!!!!!!!!!!!!! /77

Judge: Order is that Guidance should be changed to read ..... use birth certificate or GRC /78

Judge: Permission granted to seek judicial review. /79

JE: ONS asks for substantive hearing next week

"As soon as humanly possible" /80

Claimant barrister (Tom Cross) if new evidence is produced by ONS then FPFW must have time to respond.

Judge suggested barristers talk about timings for next week. Judge to look at listing schedule. Reconvene this afternoon to decide the date /81

JE says they may wish to appeal interim relief and can it be listed before a divisional court. /82

Judge: Permission to appeal granted if they need it /83

Judge: resume for directions hearing by 4.30pm for a one day hearing next week. Court adjourned /84

RESULT: guidance to be amended to remove references to passports and 'such as' pending a full judicial review early next week.

For the census2021
Sex = sex on birth certificate or a GRC
Sex is NOT Gender identity.

/85

Judge has decided that FPFW has a "strongly arguable case" that the Guidance is unlawful. He has granted permission a full judicial review to be heard early next week to declare the guidance lawful or unlawful. /86

In the interim he orders that the Guidance is amended to remove any reference to documents that can show self-declared gender identity. The words 'such as' and 'passports' must be removed with immediate effect /87

Judges and barrister reconvene at 4.30 to decide date for JR next week /88

Full hearing with be Thursday 18th March - just 3 days before Census Day. The ONS have now amended the Guidance as ordered by the court. The self-ID Guidance is effectively dead. /89