On 7th May the House of Commons debated new clause 21, a proposed amendment to the Data Bill. It is carefully constructed, and aims to secure accuracy on sex data in digital verification services (digital identities) and by public authorities. Shadow Minister for Science, Innovation & Technology Dr Ben Spencer said:
“The accuracy of data must be at the heart of this Bill, and nowhere has this been more high-profile or important than in the debate over the collection and use of sex and gender data. I thank the charity Sex Matters and the noble Lords Arbuthnot and Lucas for the work they have done to highlight the need for accurate data and its relevance for the digital verification system proposed in the Bill.
“Our new clause’s focus and scope are simple. The Supreme Court ruling made it clear that public bodies must collect data on biological sex to comply with their duties under the Equality Act. The new clause ensures that this data is recorded and used correctly in accordance with the law. This is about data accuracy, not ideology.”
Labour MPs Tonia Antoniazzi, Marsha De Cordova and Chi Onwurah spoke in favour of recording sex accurately.
But many other MPs made irrelevant, ignorant and ill-conceived points. Towards the end of the debate Dr Ben Spencer reflected that new clause 21 had been widely misrepresented. He said:
“The laws in this area are clear: the Equality Act puts in place obligations in relation to protected characteristics. The Supreme Court says that ‘sex’ means biological sex, and that public authorities must collect data on protected characteristics to meet their duties under the Equality Act. The new clause would put that clear legal obligation into effect, and build in data minimisation principles to preserve privacy. There would be no outing of trans people through the new clause, but where public authorities collect and use sex data, it would need to be biological sex data.”
The new clause was voted down. This post looks at the bad arguments and flimsy excuses that were made in the debate.
The bad arguments
Bad argument 1: The role of official government documents and records on sex is to ensure trans people feel “seen” in their gender identity.
Samantha Niblett, Labour MP for South Derbyshire, said:
“The recent decision by the Supreme Court that ‘sex’ in the Equality Act 2010 refers to biological sex at birth, regardless of whether someone holds a gender recognition certificate [GRC] or identifies as of a different gender, has already left many trans people feeling hurt and unseen. Does the shadow minister agree with me that any ID and digital verification service must consider trans people, not risk making them more likely to feel that their country is forgetting who they are?”
As the government-commissioned review of data on sex and gender by Professor Alice Sullivan made clear, it is impossible for a single data field to both accurately record biological sex and record non-sex-based gender identities. Any data field that is to be treated as reliable must be accurate for everyone.
Making some people feel “seen” about their gender identity and recording everyone’s sex accurately are two different goals. They cannot be achieved by the same instrument.
Niblett is right that trans people do need to be considered. Like everyone else, they need a passport that enables them to cross borders and a driving licence that proves they have passed their driving test. Trans people should not be excluded from using these documents and records for their intended purpose.
The practice of changing recorded sex on passports goes back to the 1960s. It was not about making people feel “seen”. In those days, a transsexual would have found it difficult to move around the world with a passport stating their correct sex.
Nowadays, greater acceptance of gender non-conformity and biometric identity-checking mean that a man who has adopted what he feels is a female appearance and changed his name will have no problem getting through the passport gates with the correct sex on his passport (and vice versa for a woman who seeks to present herself as a man). As Gatwick Airport security information explains:
“All passengers must provide proof of identity during check-in. This is usually your passport. The date of birth, gender and name of the passenger on the reservation must match that on your passport or government-issued photographic ID…. It does not matter if your current gender presentation matches that given on your documentation or that of your photograph.”
Bad argument 2: A trans person’s sex isn’t public knowledge, and heroic efforts must be made to keep it private.
Christine Jardine, Liberal Democrat MP for Edinburgh West, intervened, saying:
“Data can be susceptible and its breach is a breach of privacy… one danger in new clause 21, about the data on individuals’ sex at birth, is that it risks breaching someone’s privacy if they have kept that fact private and that data becomes public knowledge.”
The assumption that someone can keep their sex private and entirely out of public knowledge is wishful thinking. As the Supreme Court noted, sex is generally readily perceptible:
“Neither possession of a GRC nor the protected characteristic of gender reassignment require any physiological change or even any change in outward appearance… in either case [those of a trans person with a GRC and without one] the individual’s biological sex may continue to be readily perceivable.”
Furthermore, this data is often recorded for routine administrative reasons. Being a parent makes it impossible to keep your sex secret, and many trans people are parents. As the case of Freddy McConnell confirmed, the legal status of being a child’s mother or father tracks sex, not gender identity.
A mother’s identity is recorded on her child’s birth certificate (even if the mother has adopted a man’s name and wishes to be called “he”, and even if she has a “male” GRC). A mother’s or father’s identity in relationship to their child is recorded in myriad everyday administrative interactions over the next 18 years: with the child’s doctor, dentist, schools and any other statutory authorities the family interacts with. The child cannot be sworn to secrecy about the sex or identity of their parents, and professionals with safeguarding responsibilities towards the child should not pretend they are unable to tell the difference between men and women.
Another example of a common administrative interaction that puts a person’s name into the public record is becoming a company director. If a person later changes their name to appear to be the opposite sex, their previous name remains on public record.
We can all choose to keep personal data such as our name, date of birth and address private in some interactions. And organisations recording our personal data (including our sex) must comply with data-protection laws. But it is impossible to keep this information absolutely secret.
Bad argument 3: recording a person’s sex accurately creates a slippery slope towards requiring proof of characteristics that, unlike sex, are subjective and unprovable.
Dr Allison Gardner, Labour MP for Stoke-on-Trent South, said:
“I approached new clause 21 with an open mind, because it is vital that we collect biological sex data to protect women and trans people, but as I read it I had a developing sense of unease — because how does the determination of accuracy of data impact on the individual, and if we start looking at those two protected characteristics, what about the others? I feel it is a little bit of a slippery slope; I wonder if I would have to go around with my baptism certificate to prove my religion, and how would I prove my sexuality? I am afraid I developed a growing unease about that new clause, but I support the idea of accurate data collection for both gender identity and biological sex, which is very important.”
Different kinds of information have different characteristics. Your date of birth is a fact that cannot be changed, and which can be verified by reference to the birth record.
Sex is similarly fixed and recorded at birth. It can also be verified by reference to the birth record, or by a simple cheek swab of the sort long used to verify eligibility for female sporting competitions.
A person’s religion, by contrast, may change, and people can declare it for themselves for many purposes. But a religious school may set objective criteria for proving adherence.
Sexual orientation has both subjective and objective elements: it is a combination of feelings and actions. But for administrative purposes it is self-declared.
Love is self-declared, but marriage is certificated.
A person may declare they can speak French (and may be able to demonstrate that this is true), but if they need to prove they have a French GCSE they can do so by showing a certificate.
Anyone thinking more than superficially about personal information will readily see that there are many different types. Dealing with each type appropriately is part of the design for the digital verification framework. That we sometimes have to prove objectively verified facts about ourselves (such as our address, date of birth and qualifications) doesn’t create a slippery slope that ends with us having to prove totally different, subjective sorts of personal attributes.
Spencer’s amendment seeks to ensure that sex is dealt with correctly and lawfully by public authorities and by the digital identity framework. This means treating it as a personal characteristic that cannot change – like date of birth – not one that can change – like marital status.
Gardner says she supports accurate data collection for both gender identity and biological sex. But these are quite different kinds of data. “Gender identity” is a subjective idea that a minority of people hold about themselves. The Violent and Sex Offender Register held by the National Police Chiefs Council offers 51 options for gender identity. The only way to determine which, if any, is “accurate” about any individual at any given moment is to ask that individual. These identities are entirely subjective and unverifiable.
A person’s sex, by contrast, is an objective fact about them with only two possibilities: male or female. Recording sex accurately does not create a slippery slope to recording subjective personal information.
In fact, data-protection law protects against such slippery slopes. Collecting, storing and sharing each individual piece of a person’s data requires a lawful purpose. The lawful purpose for collecting sex and collecting “gender identity” will be different. To comply with data-protection laws and principles, data collectors should explain what data they are collecting, and why. At the moment, many are often ambiguous about whether they are collecting data on sex or on gender identity, and mix the two attributes together.
Bad argument 4: sex should not be recorded accurately because trans people may be distressed.
Vicki Slade, Liberal Democrat MP for Mid Dorset and North Poole, said:
“I really must speak strongly against new clause 21. I have been overwhelmed by the scale of distress brought about by this awful proposal. It is cruel and it completely undermines the privacy of people who are transgender at a time when they are already feeling victimised.
“Those who have transitioned socially, medically or surgically are protected in law, and we were told that the Supreme Court decision last month does not change that. But new clause 21 does. If it were passed, sex at birth would be recorded on a driving licence or passport, outing every trans person whenever they buy an age-restricted product, change their job, travel abroad, or even come to Parliament to visit their MP. Not only is this a fundamental breach of privacy, but it is potentially dangerous. They would be prevented from travelling to countries with poor records on rights, and they would be at higher risk of suicide and self-harm than they already are.”
This is an immature, catastrophising argument that is common on social media and which was comprehensively demolished by the Supreme Court judgment. It does not engage with the purpose of the proposed legislation on digital verification services.
These apps are privacy-preserving. For example, they allow people to buy age-restricted products while revealing no personal information except that they meet the age requirement (that is, that they are over 18). People can prove their right to work by showing a “share code” which attests that they are a British or Irish citizen or have a relevant immigration status. There is no need to reveal a person’s sex data or their gender identity for these uses.
Visitors to the Parliamentary estate are not required to show photo ID at all.
The Supreme Court confirmed that those who have transitioned “socially, medically or surgically” (or who propose to) are protected in law from discrimination and harassment under the Equality Act protected characteristic of gender reassignment. But their sex has not changed and other people are not required to ignore it, pretend not to be able to observe it or replace it with their stated “gender identity”.
Recording a person’s sex is not a “fundamental breach of privacy”. It is an everyday action that is often necessary, and which is covered by data-protection law.
It certainly can be dangerous to travel to countries with poor human-rights records. But that danger cannot be mitigated by giving people passports with false information. An individual who travels to, say, Saudi Arabia and flouts its strict rules concerning the behaviour of men and women by pretending to be the opposite sex is taking a serious risk, whatever their documents say. The UK government does not respond to other human-rights abuses in such countries by issuing false documents: unmarried women who get pregnant in Saudi Arabia risk prison, but the UK government does not issue fake marriage certificates to protect them.
Bad argument 5: “transgender, non-binary and intersex” people don’t need their sex recorded accurately.
James Naish, Labour MP for Rushcliffe, said:
“New clause 21 proposes mandatory recording of sex at birth across all public authorities. The new clause would require all public authorities, whether the NHS, which I could potentially understand, or the Driver and Vehicle Licensing Agency, which I certainly could not, to record and retain people’s sex at birth even when someone has a gender-recognition certificate. The new clause would seemingly require that regardless of context, purpose or relevance. That feels neither proportionate nor respectful of existing legal frameworks or the trans community at this difficult time.
“It is important that we acknowledge that transgender, non-binary and intersex people already face considerable barriers in public life, and many of my constituents have shared with me in recent weeks just how much fear and uncertainty they are experiencing. Rushed amendments and changes, without dialogue with those impacted, are not in any way welcomed and could have very negative consequences.”
New clause 21 didn’t propose mandatory recording of sex in any circumstance where it is not already recorded. It proposed that where sex is recorded for a lawful purpose it is recorded accurately. This is already a requirement of data-protection law, but it is widely breached.
If a public authority cannot determine a lawful reason to collect sex data, then it shouldn’t collect it at all. If it has a lawful reason to collect sex data, then it should collect it accurately.
Data-protection laws apply equally to transgender and non-binary people and to those Mr Naish referred to as “intersex” (people with disorders of sexual development). The government has defended itself against claims for non-binary recognition brought by Christie Elan Cane and Ryan Castellucci. In both cases, it successfully argued that not recognising “non-binary” identities in place of sex does not breach human rights.
Bad argument 6: the government and public authorities do not have the right to define sex.
Alex Sobel, Labour/Co-op MP for Leeds Central and Headingley, said:
“I would like to make note of my steadfast opposition to new clause 21, which does not simply change data collection. It proposes to mark and track individuals based on ‘sex at birth’, regardless of their lived reality, legal recognition or consent. No one — not a Government, not a public authority, not a politician — has the right to define who another person is; only the individual can do that. This is a fundamental principle of dignity and respect that transcends political views and legal debates. We must reject new clause 21.”
Clear definitions are at the heart of law-making. Laws create obligations and give protections and entitlements to individuals and classes of people based on clearly defined characteristics. These can include age, nationality and sex. They also establish principles that govern certain sorts of interactions, such as the duties of care and candour, risk assessment, data privacy and accuracy. Sex often matters in situations where such statutory duties apply. It is simply wrong to say that it is not the business of Parliament to set clear definitions and expect public authorities to abide by them.
Several human rights, such as the right to privacy, freedom of expression, freedom to manifest beliefs and freedom of association, are qualified by clauses that state they may be subject to “conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”. Reasons for such restrictions include national security, crime prevention, the protection of health or morals, the protection of the reputation or rights of others and maintaining data privacy. The government and private actors will breach human rights if they do not have clear definitions that enable people to understand and carry out their duties and responsibilities in these respects. Article 6 guarantees people a fair trial when it comes to criminal or civil matters. This depends on commonly held definitions for the words used in law. The Supreme Court has just ruled that in relation to the Equality Act 2010 (which covers employment, education, service provision, charities and associations) the words “man” and “woman” relate to the biological characteristics not people’s self-definition.
Bad argument 7: trans groups say their rights and privacy are being attacked.
Nadia Whittome, Labour MP for Nottingham East, said:
“Trans people and trans-led groups have been very concerned by new clause 21 tabled by the Opposition. They have rightly described it as an attack on trans people’s rights and their privacy.”
Trans groups have been misled about this, as they have been about the Equality Act. Politicians, sadly, have contributed to this fearmongering. It is not an attack on anyone’s rights or privacy to record sex accurately for everyone, in a manner that complies with data-protection laws. It is simply ensuring that everyone’s right to data accuracy, and everyone’s (limited) right to privacy, are respected and that there is administrative coherence. This is necessary to protect trans people and everyone else.
The 8,000 or so trans people with a GRC are covered by Section 22 of the Gender Recognition Act, which makes it a criminal offence for a person who has acquired protected information related to this in an official capacity to disclose the information to any other person. This means that for most purposes a public authority should not record information about a person’s “acquired gender” recorded on a GRC, since they cannot safely use this information, and will not have identified a lawful purpose for recording it.
The flimsy excuses
Chris Bryant MP, the Minister of State for data protection and telecoms, said that the government accepts the Supreme Court ruling and agrees that data accuracy is important. Nonetheless, he rejected the amendment and made a series of excuses for refusing to take action.
Excuse 1: don’t worry, we are already fixing bad sex data
Bryant said the government is already engaged in “an appropriate and balanced range of work on data standards and data accuracy”, including on monitoring diversity information and collecting and reporting data and statistics about sex and gender identity. “All Government Departments are now considering how best to address the recommendations of the Sullivan review,” he said.
The Sullivan Review highlighted widespread lack of compliance with data protection by public authorities recording “mixed data” combining sex with gender identity. Bryant gave no indication that there is an effective plan to fix this historic failure. Meanwhile, his department is planning to use these unlawful and inaccurate datasets as the foundation for the new digital verification system.
Excuse 2: digital identities don’t change anything
Bryant said that the “new clause is misplaced because the Bill does not alter the evidence which can be relied upon to prove sex or gender. Indeed, it does not seek to change the content of data used by digital verification services.”
In other words Bryant, whose ministerial brief includes data protection, is planning to wave unlawful practices through into the new system without ensuring compliance with data-protection laws.
Excuse 2(a): the bill merely enables people to do digitally what they can already do with paper documents
This is false: digital identities create new capabilities. Currently, people can use their passport to show a false sex, but when doing so they automatically also reveal their name and date of birth. The Passport Office doesn’t claim that passports prove a person’s sex, and any data user who is aware that “passport sex” is unreliable can reject a passport as proof of sex and use some other source instead, including the evidence of their own eyes. Once digital identities are rolled out, people will be able to “prove” their false sex without revealing any other personal information by using a general-purpose, trustmarked, government-endorsed app. One obvious use will be online sexual fraud (catfishing).
Excuse 2(b): it is for each organisation to decide what information they need to verify in their particular circumstances
This betrays a total misunderstanding of the way digital identities are being designed. If an organisation seeks information on a person’s sex, the information it receives from any app that holds the government trustmark will be that the person is “male” or “female”, or that the app does not hold that data. This response will not indicate whether that information came from a passport, driving licence, birth record, NHS record or some other source. This information will be expressly presented as a trustworthy record of sex for all purposes, even though it’s not.
Excuse 2(c): any inconsistency between what can be done digitally and physically will “sow division”
It is true that already there are inconsistencies between the sex some people have recorded on the birth register, driving licence, passport, NHS record and marriage certificate. It is estimated that this could affect as many as 100,000 people. But embedding these inconsistencies in apps will weaponise them.
Nothing will stop an individual from having two trustmarked apps on their phone, linking them to different authoritative data sources (for instance the birth register for one and the passport office for another) and therefore being able to “prove” they are whichever sex suits them at any given moment. A data user will not be able to tell that this is happening, and if it has been certified as part of the government’s digital verification system, it will have undertaken to treat the information presented to it by a trustmarked app as authoritative.
The ability to “prove” that you are male or female at will may be used for identity fraud and money laundering, or conversely lead to trans people being flagged as money-laundering risks and locked out of transactions.
Excuse 3: even though digital identities claim to “prove” sex, nobody will use them to prove their sex
Bryant said: “The new clause is unnecessary, because it is very unlikely that digital verification services would be used for applications such as single-sex wards, health screening or to enter other female-only spaces.”
This is irresponsible. The government is planning to give men who claim to be women a government-endorsed “proof” that they are female in an app on their phone that the government is describing as valid for all purposes, and which data users are required to treat as authoritative. Simultaneously, the government is saying that it is “very unlikely” that such men will try to use this government-endorsed “proof” that they are female to access female-only spaces, services or sports. This is despite some such men already declaring publicly that they intend to flout the Supreme Court judgment and to continue to use such spaces, services and sports by brandishing a handmade card declaring that this is their human right.
The question of “outing” trans people needs to be tackled. No one is seeking to “out” a trans person when they are buying a bottle of wine or hiring a car. But it is inappropriate for a person of one sex to lie about their sex in order to gain entry to a space or service that is for the other sex. It is reasonable to expect people to tell the truth, and when accessing the service involves registration (such as when joining a gym, registering with a social-care agency or healthcare provider, seeking help from a rape crisis centre, or applying for a job), it is routine to verify identity and personal data. Recording accurate sex data where it is needed for a lawful purpose is not illegitimately “outing” someone (and in some cases there may be a “prefer not to say” option).
As the Supreme Court judgment confirmed, all single-sex provision is required by law to be on the basis of biological sex. People shouldn’t try to gain access to single-sex provision if they are not of the right sex, and shouldn’t be surprised to be challenged if they do seek entry. If they don’t want to be asked to give truthful information on their sex, they shouldn’t try to enter. The government should not be providing such people with a way to digitally “prove” a falsehood about their sex that will help them trick, force, confuse or bully their way in. Nor should it be making it hard or impossible in practice for a service-provider to restrict entry to a single-sex space or service to people who are entitled to be there.
Excuse 4: the new clause goes significantly further than the findings of the Supreme Court
What the Supreme Court made clear is that it is not the purpose of the Equality Act, or of other acts where biological sex matters, to cast a veil of privacy or misrepresentation over information about sex for people who do not want to acknowledge or share that information. This includes its provisions on single-sex and separate-sex services, the public-sector equality duty and positive-action measures (such as the Scottish Government’s provision to increase the number of women on public boards). Often single-sex services are intended for the purpose of providing bodily privacy for other people. Whatever the lawful reason for which they are provided, they are provided on the basis of biological sex.
In its arguments against this to the Supreme Court, Amnesty International drew on case law in the European Court of Human Rights that stressed that Article 8 protects personal autonomy and private life. The Supreme Court recognised this, but held that a transgender person’s autonomy (to dress how they please, call themselves what they like and so on) does not override other other people’s right to dignity, privacy, autonomy and protection from discrimination. These are the rights the Equality Act seeks to protect in relation to workplaces, education, service provision and associations.
The Supreme Court’s ruling makes clear that it is lawful to record and share information on a person’s sex for ordinary purposes where sex matters, and that this applies to people who identify as a different gender, including those who have a GRC.
Excuse 5: “trans rights” mean bad sex data can’t be fixed
Bryant said: “Finally, the proposals have the potential to interfere with the right to respect for private and family life under the Human Rights Act by requiring public authorities to record sex as biological sex in all cases regardless of whether it is justified or proportionate in that given circumstance.”
Data-protection laws already require that when personal data is recorded by data collectors, it is accurate. The only reason this is not already happening is that, when it comes to sex, this law is widely flouted. Many public authorities have long recorded “gender identity” instead for some people. Recording people’s sex accurately for a lawful purpose does not interfere with their Article 8 rights.
Note that Excuse 1 (don’t worry, we are already acting on the Sullivan Review and fixing bad sex data) and Excuse 5 (we can’t fix bad data because doing so would interfere with trans rights) are contradictory.
Excuse 6: fixing bad sex data is incompatible with the Gender Recognition Act
Bryant said: “In addition, the amendment does not take account of the fact that the Gender Recognition Act 2004 gives those with gender-recognition certificates a level of privacy and control over who has access to information about their gender history.”
The amendment does not seek the recording of people’s “gender history”. It seeks to ensure that biological sex is recorded accurately. Doing so when that information is needed (with consent or for a lawful purpose) does not engage the Gender Recognition Act at all, since that concerns recording of “acquired gender” and the knowledge that someone has a GRC. The information that someone has a GRC can and should be kept private. It may be deeply meaningful to them, but is not needed by others (except the registrar if the individual is getting married or has died).
The Scottish Government lost in the Supreme Court against For Women Scotland. Also on the losing side were the Equality and Human Rights Commission – which intervened in support of the Scottish Government – and the UK government, which did not intervene but held the same incorrect position about the meaning of “sex” in the Equality Act until the Supreme Court judgment made clear not only what the law actually is, but what it has been ever since it was passed in 2010.
This happened because a succession of ministers in both Holyrood and Westminster accepted bad arguments and flimsy excuses from civil servants, regulators and government lawyers who had lost sight of the law. Peter Kyle and Chris Bryant seem set on going along the same path.
It is worth noting that John Edwards, the Information Commissioner (that is, the regulator with the responsibility for securing compliance with the data-protection laws), is personally committed to the transactivist position that transgender people should be allowed to self-identify as the opposite sex. He has publicly declared that his daughter is a boy. He quotes his child as saying that the accurate recording of sex data “makes me feel afraid and invalidated”, and has cited this as a reason sex shouldn’t be recorded accurately.
The Data Bill is now returning to the House of Lords. It is to be hoped that the Lords will consider the issues with more seriousness than the Commons did.
Filed under Data and statistics Digital ID can’t be gender self-ID Updates