Full recommendations
The majority of these recommendations have broad relevance across government. A number of recommendations are directed particularly towards specific bodies. These are:
- recommendation 12 (NHS);
- recommendation 13 (Home Secretary and Police Forces);
- recommendation 23 (Scottish Government and Scotland’s Chief Statistician);
- recommendation 24 (EHRC);
- recommendation 51, 53, 54 and 55 (Office for National Statistics);
- recommendation 55, 56 and 59 (UK Statistics Authority).
Sex
1. In line with the UK Statistics Authority (UKSA) Inclusive Data Taskforce recommendations, [footnote 7] data on ‘sex, age and ethnic group should be routinely collected and reported in all administrative data and in-service process data, including statistics collected within health and care settings and by police, courts and prisons’.
2. Data on sex should be collected by default in all research and data collection commissioned by government and quasi-governmental organisations. By default, both sexes should be included in all research, including clinical trials, and sex should be considered as a factor in analysis and reporting. As a general rule (with some obvious exceptions), a 50/50 sex ratio is desirable in studies.
3. The default target of any sex question should be sex (in other words, biological sex, natal sex, sex at birth). Questions which combine sex with gender identity, including gender identity as recognised by a Gender Recognition Certificate (GRC) have a mixed target. Sex as a biological category is constant across time and across jurisdictions, whereas the concept of ’legal sex’ subject to a GRC may be subject to change in the future and varies across jurisdictions. Using natal sex future-proofs data collection against any such change, ensuring consistency.
4. The form of the question should follow the UK Censuses (England and Wales, Northern Ireland, Scotland) question and response categories.
What is your sex?
Response categories: Female, Male
5. For some purposes, it may be appropriate to make providing information on sex optional for respondents. This can be done by allowing non- response, for example by allowing respondents to move to the next item in an online survey without responding to the sex question, by stating that responding to any question is optional, or more explicitly, via a ‘prefer not to say’ option. Different approaches may have different implications for non-response in different contexts, and data owners will need to consider these.
6. Omitting or discouraging the option of non- response may be appropriate where failing to collect data on sex would be unsafe, either for the respondent or for others. Examples where a non-response option may not be appropriate would include medical information and data used for safeguarding purposes.
7. Guidance for the sex question should provide clarity on the target of the question as follows.
‘This question is about your sex at birth’.
8. We recommend against using the phrase ‘sex assigned at birth’. This phrasing is inaccurate and misleading, as sex is determined at conception and typically observed in utero or at birth. An individual’s sex is not determined by their birth certificate, it is merely recorded on their birth certificate. In very rare cases an infant’s sex may be inaccurately recorded at birth, but this does not imply that sex is merely an assigned label rather than an inborn characteristic.
9. The concept of ‘legal sex’ is contested and has been subject to change over time and differences between jurisdictions. Therefore, advice on capturing this variable could change. In addition, the concept of ‘legal sex’ has been seen as ambiguous because, in the UK, state- issued documents, such as passports and birth certificates, can record a different sex for the same individual. If data on a person’s sex modified by GRC status, rather than simply their sex, is identified as being required for a specific purpose, we recommend using the England and Wales Census question on sex as above, with the guidance that was used in the Census: ‘If you are considering how to answer, use the sex recorded on your birth certificate or Gender Recognition Certificate.’
10. Whenever sex is recorded, it should be made clear what is intended: whether this refers simply to sex, or to ‘legal sex’ modified for some individuals by a Gender Recognition Certificate (GRC). If a document or record is intended to refer to the latter, this should be subject to change only on provision of a GRC.
11. Organisations that allow sex markers to be changed on official documents should keep records of the number of documents changed annually with basic demographic information attached such as age and sex.
12. The NHS should cease the practice of issuing new NHS numbers and changed ‘gender’ markers to individuals, as this means that data on sex is lost, thereby putting individuals at risk regarding clinical care, screening, and safeguarding, as well as making vital research following up individuals who have been through a gender transition across the life course impossible. In the case of children, this practice poses a particularly serious safeguarding risk, and should be suspended as a matter of urgency.
13. The Home Secretary should issue a mandatory Annual Data Requirement (ADR) requiring the 43 territorial police forces of England and Wales and the British Transport Police (BTP) to record data on sex in all relevant administrative systems. Relatedly, police forces should cease the practice of allowing changes to be made to individual sex markers on the Police National Computer (PNC).
14. In some cases, changing data on sex held within administrative systems may have been motivated by a desire to ensure that service users are addressed as they wish to be addressed. Service users should of course be treated with respect and addressed by their preferred name and title. It should be possible to store information on forms of address as distinct from information on sex and ensure that relevant people have access to this as required.
15. We are advised that, from a legal perspective, data on sex is close enough to data on sex subject to modification by a GRC to fulfil the public sector equality duty (PSED), even if a GRC is held to affect a person’s status under the Equality Act. Given the desirability of a single meaningful and constant target for any question on sex both within and between organisations, a question on sex (i.e. natal, biological sex) is preferable for all purposes. Particularly if data on sex is multi- purpose, for example if it is designed to be used for research and/or operational reasons as well as compliance with the PSED, data on sex, (for the avoidance of doubt, meaning natal/biological sex), only should be collected. Collecting both sex and ’legal sex’ would be unduly onerous and would risk identifying individuals with GRCs.
16. As noted by the Office for Statistics Regulation’s guidance on ‘Collecting and reporting data about sex and gender identity in official statistics’, the conflation of terms relating to sex and gender leads to a lack of clarity for both respondents and users of data:
Through our work, we have seen instances where there is a lack of consistency and clarity around the term ‘gender’, both in data collection, and in statistical reporting. In some cases, it is not clear whether producers are using the term gender as a substitution for sex or gender identity.[footnote 8]
Sex and gender identity are distinct concepts and, in line with the Office for Statistics Regulation guidance, these concepts should not be conflated or combined.
17. As sex and gender identity are distinct concepts, questions which combine sex and gender identity in one question should not be asked. We have observed a trend for questions which attempt to combine sex and gender diverse identities in one question. Such hybrid questions aim to solicit information on sex from the majority of respondents but on gender identity from some respondents. As such, the target of the question is muddled. Questions that mix sex and gender risk organisations being in breach of the PSED, as they do not identify either the protected characteristic of sex or the protected characteristic of gender reassignment.
18. The word ‘gender’ should be avoided in question wording, as it has multiple distinct meanings, including:
- a synonym for sex
- social structures and stereotypes associated with sex
- gender identity
If a question targeting gender identity is worded as a question on gender, this is likely to mislead many respondents. Questions on sex have also often been labelled as ‘gender’. Change in the use of the term ‘gender’ means that it is important that questions on sex are labelled explicitly as such.
19. Questions on sex and/or gender identity should not contain an additional category for people with DSD conditions, sometimes also known as ‘intersex’. People with DSD have a sex, they are not a third sex or sexless category, and to imply that they are is likely to cause offence. DSD is an umbrella term without a single agreed definition, and the question of which conditions are included is contested. Under conventional definitions, people with DSD are estimated to make up 0.018% of births, i.e. fewer than 2 in 10,000. Asking for DSD status is highly intrusive, poses a risk of identifiability, and is unwarranted given the lack of analytical use for data on such a small group. Asking for this information would need to be via a distinct question, not part of a question on sex or gender identity, and is likely to be justified only in the context of specialist medical studies.
20. In some face-to-face contexts, sex is recorded based on observation rather than by asking a question. Asking for a person’s sex in the context of a face-to-face interaction can be perceived as rude. Observed sex is used in operational contexts where asking for an individual’s sex may reduce rapport or exacerbate a potentially fractious situation, for example in the context of policing. Similarly, in face-to-face surveys, sex is sometimes recorded based on the interviewer’s observation. The potential dissonance and break of rapport generated by asking a person’s sex in the context of a face-to-face interaction may be particularly undesirable in surveys which contain sensitive or potentially distressing questions.
21. Data owners should be reassured that it is lawful to collect observational data on sex in both operational and research settings. However, the record must state that this is based on observation only. This is in line with the general principle that the way in which a variable has been captured should be recorded explicitly in all datasets. Further detail on this point is available in the legal appendix.
22. We have noted some apparent confusion between the concepts of self-reported sex and self-identified gender identity. These are distinct concepts and should not be confused in data collection or guidance. Self-report simply means that the information is reported by the respondent.
23. The Office for Statistics Regulation has written to Scotland’s Chief Statistician regarding the Scottish Government’s 2021 guidance for public bodies on the data collection and publication of sex, gender identity and trans status, suggesting that this guidance would benefit from clarification taking on board developments since the guidance was published. [footnote 9] Further to this, the Scottish Government guidance should be reviewed to take account of the recommendations of this review, and to consider our legal advice.
24. The Equality and Human Rights Commission (EHRC) should review the material available on its website and either archive or clearly flag documents and guidance that are not consistent with its current view that sex in the Equality Act 2020 refers to ‘legal sex’ meaning sex subject to modification by a GRC.
Gender identity
25. Data providers often default to using ONS Census questions. However, the ONS 2021 Census question ‘Is the gender you identity with the same as your sex registered at birth’ has been shown to be flawed. [footnote 10] The Office for Statistics Regulation (OSR) has stated that the statistics produced by this Census variable do not comply with important quality aspects of the Code of Practice for Statistics and has de-accredited these as official statistics. This question (and variants of it) should not be used.
26. Questions on gender identity should recognise that the concept of gender identity as such will be unfamiliar, unclear or irrelevant to some respondents, and that many respondents may not perceive themselves as having a gender identity. Questions should not assume that respondents will agree that they have a gender identity.
27. As organisations increasingly seek to collect data on gender identity, the problems identified with the ONS 2021 Census question have left a user need for a simple question which can be used in data collection with the general population. Organisations wishing to collect data on gender identity will need to be clear on the target of their question. We have identified 3 distinct possible targets for such a question:
- The protected characteristic of gender reassignment
- Trans identification
- Identification as trans and/or gender diverse
28. For organisations wishing to capture the protected characteristic of gender reassignment for the purposes of equalities monitoring, a question on trans status lacks sufficient specificity, and therefore will not assist in compliance with the PSED. To capture the protected characteristic of gender reassignment, we recommend asking a direct question addressed to this target, such as:
Do you have the protected characteristic of gender reassignment?’ Response options: Yes/No/ Don’t know/Prefer not to say.
29. We acknowledge that gender reassignment will be an unfamiliar concept for many respondents. A guidance note should be included prominently alongside the above question as follows:
‘A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex’.
30. For organisations wishing to capture trans identification, we recommend asking a question clearly directed towards this target. Questions which meet this specification would follow the following format:
‘Are you’ [or ‘Do you identify as’ or ‘Do you consider yourself to be’] ‘transgender’ [or ‘trans’]?’ With response options such as: Yes, Trans woman/Yes, Trans man/Yes, Non-binary/Yes, Other, please specify if you wish [open text]/ No/Don’t know/ Prefer not to say.
31. The small differences in the options provided above reflect the fact that different formulations have been used and recommended across different data collection exercises, with apparent success, and we are not in a position to know whether these differences may affect response in any way. In order to settle on a single agreed formulation, it would be desirable to conduct question testing.
32. Further quantitative research should be undertaken to assess what the general public takes as the meaning of key words which may be used in data collection in this area, including ‘transgender man’, ‘trans man’, transgender’, ‘trans’, ‘transsexual’, and ‘gender reassignment’, along the lines of polling which has already been carried out on the words ‘trans woman’ and ‘transgender woman’.[footnote 11]
33. If guidance is required, we recommend the following: ‘Some people describe themselves as transgender when they do not identify with their sex at birth’.
34. If there is a need and sufficient space for more detailed guidance, we suggest providing the Stonewall definition:
Trans people may describe themselves using one or more of a wide variety of terms, including (but not limited to) transgender, transsexual, gender-queer (GQ), gender-fluid, non-binary, gender-variant, crossdresser, genderless, agender, nongender, third gender, bi-gender, trans man, trans woman, trans masculine, trans feminine and neutrois.
35. It is likely that, for some research purposes, a broader question will be desirable. A question on wider gender-diverse identities may be required, for example to identify respondents expressing a non-binary identity who may or may not identify as trans. If the target of the question is to identify those with gender-diverse identities including, but not limited to, those who identify as trans, we recommend asking a question which makes this clear. For example:
‘Are you [or ‘Do you identify as’ or ‘Do you consider yourself to be’] transgender [or trans], non-binary or gender diverse?’, with response options: Yes, Trans woman/Yes, Trans man/ Yes, Non-binary/Yes, Other, please specify if you wish [open text]/No/Don’t know/Prefer not to say. As this question is novel, it will require full question testing.
36. Organisations considering collecting data on gender reassignment or trans status will need to consider both the fact that this is sensitive personal information and that it identifies a small group. Whether it is appropriate to collect this data will depend on a number of factors, including the:
- size of the dataset
- prevalence of trans identities in the population of interest
- proposed use of the data
Organisations should only collect data which they intend to process. The PSED does not imply a duty to collect data which is unlikely to be useful.
Reporting on data
37. All databases should provide a clear record of how data on sex is defined and collected. All reports using data analysis on sex should provide a clear account of how data on sex is defined and collected, and whether and how this varies between different databases or systems. Any changes to how data on sex is defined over time should be made clear. Data producers should provide a clear audit trail on how data on sex is collected. For example, where appropriate, reporting should include copies of questionnaires and instructions to interviewers. If survey data is collected by a third party using pre-recruited panellists, the source definition should be stated.
38. Analysts must be able to use clear and familiar language in reporting findings on sex. Terms such as women, men, boys and girls are synonymous with (respectively) adult human females and males and children of each sex. Similar considerations apply to terms such as mothers and fathers, sons and daughters. While all language concerning sex and gender has become contested to some degree, those reporting on sex-disaggregated data should not be dissuaded from using familiar sexed terms. Sensitivities which may apply when referring to specific individuals should not apply at the aggregate level. Any guidelines on language use in reporting on data and research should foreground clarity and ease of communication.
Clear language in legislation, guidance and discourse
39. Previously a polite synonym for sex, ‘gender’ now has multiple distinct meanings. Legislation referring to ‘gender’ is now open to misinterpretation, even in cases where it may appear clear that, at the time the legislation was enacted, gender meant sex. It is desirable that legislation should refer clearly to sex and/ or to gender reassignment as appropriate rather than using the term ‘gender’. This has direct implications where data collection is mandated via legislation. Where organisations feel constrained by the use of ‘gender’ in relevant governing statutes when it comes to collecting data, the government should consider amending that legislation so that it refers to sex.
40. When reporting on or discussing issues relating to sex, it would be desirable to see a shift to using the term ‘sex’ instead of gender, given the ambiguity of the term ‘gender’. This should be reflected in government language and guidance. For example, guidance for employers on ‘gender pay gap’ reporting should refer to ‘sex pay gap’ reporting.
Publishing data on individuals
41. Some organisations may wish to publish data on individual sex. For example, in athletics, race organisers typically publish results according to sex/age categories which are used for competition purposes and to compute sex/ age adjusted performance gradings. In other contexts, the sex of a practitioner may be published so that members of the public can be informed of this information where relevant.
42. Published information on individuals must be accurate and accurately recorded and conveyed. Data on sex should not be reported as being data on gender identity or vice versa, and the 2 concepts must not be combined.
43. Individuals should typically be given the option of not having their sex published.
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