Naomi Cunningham successful in ONS 2021 census dispute on ‘sex’ at High Court

Naomi Cunningham was part of a legal team who, today, have won a High Court challenge against the Office for National Statistics regarding a question on sex and the issue of self-identification in the 2021 census.     

Campaign Group Fair Play for Women has won its campaign to have guidance from the Office for National Statistics about the “sex” question in the 2021 Census permanently withdrawn. Mr Justice Swift granted permission and interim relief in an urgent hearing in the Admin Court last week, and listed the case for an expedited full merits hearing on 18^th March 2021. Jason Coppel QC and Tom Cross from 11KBW and Outer Temple Chambers’ Naomi Cunningham were instructed by Sinclairslaw for Fair Play for Women.

Jason Coppel QC argued that the sex question in the Census is “a straightforward binary question, not a choice” at the initial hearing on 9 March. He argued that the ONS had a duty to collect accurate data about biological sex. Sir James Eadie QC for the ONS had argued that sex was an ‘umbrella term’ that includes a range of concepts such as ‘lived’ and ‘self-identified’ sex. He also argued that asking about a person’s sex as recognised by law risks a breach of Article 8 of the Human Rights Act, which relates to privacy.

At this initial hearing, Mr Justice Swift ordered the ONS to remove the current guidance from their website pending the full hearing on 18^th March.

Ahead of tomorrow’s hearing, the ONS has withdrawn from the proceedings and agreed to pay Fair Play for Women’s costs, leaving the High Court to rule that “What is your sex” means sex “as recorded on a birth certificate or Gender Recognition Certificate”.

This decision will have implications for future data collection including the planned guidance for the Scottish census in 2022.

More information

Naomi Cunningham is a member of our Employment and Discrimination Team. She has particular interests in sex discrimination (including equal pay) and gender reassignment discrimination; and the operation of the single sex exemptions in the Equality Act. She has been instructed in a number of multi-claimant equal pay cases, including the ongoing mass equal pay claim against Asda and Tesco.

For further information on Naomi’s practice, please contact her Practice Management Team, contact Nick Levett (+44 (0)20 7427 4908) or Adam Macdonald (+44 (0)20 7427 4906) or call us on +44 (0)20 7353 6381 for a confidential discussion.

News 17 Mar, 2021