Sex, gender identity, trans status - data collection and publication: guidance

4. Considerations when deciding what data to collect

It is a fundamental role for public service in Scotland to eliminate discrimination, foster good relations and advance equality in our society. This helps to meet our purpose in the National Performance Framework of creating "opportunities for all of Scotland to flourish", as well as meeting legal obligations in the Equality Act 2010 through the Public Sector Equality Duty.

Within this overarching aim, there will be different reasons organisation have for collecting data and the uses should determine the data collected. As such, organisations must decide on the most useful definition(s) to use to capture the data that they need.

It is important to think through the way you are collecting data i.e. who you are seeking data from, the arrangements for collecting data (e.g. time of day, or mode of collection) and nature of the questions you use. How you set up the data collection can introduce biases that reduce the value or lead to decisions that unknowingly increase inequalities. So, consider any data collection as a whole and plan to avoid any potential biases. There is a lot of further guidance on how best to do this online, for example this Government Social Research Quota sampling guidance^[11].

From the principles above, it is important to only collect a specific item of data from someone where there is a clear need for this, to minimise the burden on an individual and to comply with the legal requirements under the UK General Data Protection Regulation (UKGDPR). In addition, people have the right to access to data about them that is used for operational decisions and that this data is rectified if there are errors. So those collecting data for operational decisions need to take steps to making sure it remains correct.

The Equality and Human Rights Commission have guidance on the public sector equality duty and data protection^[12].

The Information Commissioner's Office (ICO) produce guidance to support organisations to only collect personal data that is needed for a specific purpose, to ensure that sufficient data is collected to fulfil this purpose, and to periodically review the personal data held and processed, checking that it is still relevant and adequate for these purposes, deleting anything no longer needed Principle (c): Data minimisation | ICO^[13].

The ICO also recommend that organisations consider potential risks to the rights of individuals when making decisions about collecting personal data, as well as the risks of not collecting and using information as well as collecting and processing it^[14]:

A Data Protection Impact Assessment aims to consider these points: The ICO provide some guidance on how to put this together^[15].

There may be a number of reasons for collecting data on sex, gender identity or trans status. Some important reasons are

• Operational decisions by public sector services about the service people receive
• Designing more inclusive and better services. This includes identifying opportunities to improve or transform services, decisions on how best to do that, monitoring key performance measures or societal trends. This includes meeting legal obligations to collect certain data and use it to monitor equalities.
• An evidence based understanding of service need, to, for example, inform funding and planning decisions.
• Helping the public to understand the extent to which progress has been made in the equality and diversity of our nation.

For the vast majority of people, questions on someone's sex and gender identity will provide the same response: female and woman/girl, or male and man/boy. This also means that for many uses, whether data is collected using a sex question or a gender identity question, will in reality give you data that will work for uses where you need data on either concept.

However, a proportion of people will not answer questions on sex by thinking about their biological or legal sex, and instead will respond according to aspects such as their self-defined sex, and their innate feeling of whether they are a woman or a man.

Given that for the vast majority of people sex and gender identity questions will provide the same result, for most issues one may want to measure, whether there is a question about sex or about gender identity, it will not skew the statistics when disaggregated by either concept.

However, the National LGBT survey^[16] reported that 13% of respondents were trans, 6.9% were non-binary, 3.5% were trans women, and 2.9% were trans men. This study identified differences according to respondents' age, with younger respondents more likely than older respondents to identify as non-binary, and younger respondents more likely to be trans men, and less likely to be trans women. As these survey results demonstrate, there are likely to be groups in the population where the proportion of trans people is higher, and public bodies should be mindful of possible impacts on the data, for example in terms of quality and comparability, and when considering how to collect and present aggregate data on groups containing small numbers of people in a way that protects privacy and respects disclosure control measures.

Where it is not necessary and proportionate, a question requiring the disclosure of a person's biological sex may be an unjustifiable breach of privacy: in some cases this would have the potential to reveal a trans history that otherwise a person may wish to keep private. In a small number of instances, it may be necessary and proportionate to require a person to answer a question on the their biological sex but this would be on an individual basis for a very specific purpose and it would be up to public bodies who need this data to develop the best approach to do this. The most likely scenarios where data on biological sex is required would be on a case-by-case basis in a medical context; in a criminal context where a serious sexual offence is being investigated.

This guidance is not prescriptive about these day to day operational data collection decisions. It will be for public bodies who need to collect this data to establish the best approach to collect this data in their individual institutional settings. Data collection should remain respectful to the dignity and rights of individuals but allow public bodies to monitor outcomes and design service improvements.

The Equality and Human Rights Commission (EHRC), who are responsible for ensuring compliance with the Public Sector Equality Duty (PSED), have stated that the requirement to gather employment information does not mean that employment information on the basis of legal sex must be recorded^[17]. Outside of employee data, there may be a small number of circumstances when collecting data on self-defined sex only could contribute to the failure of a public body to comply with the PSED. Therefore it is important that public bodies find a balance between gathering appropriate data for a specific purpose and people's right to privacy.

Recording data on gender identity and trans status can also support equality monitoring in relation to the 2010 Act protected characteristic of gender reassignment.

Many data collections are used for more than one purpose: for supporting operational decisions, supporting organisational management and improvement, providing accountability, and broader research. As such, many organisations will want to be able to report about sex, gender identity and trans status.

For the majority of people their sex and gender identity are the same and they do not understand why they are asked the same question twice. However, engagement as part of the 2022 Scottish Census has shown that trans people prefer to answer a sex question (on a self-defined sex basis) followed by a trans status question. Asking this combination can support the principle of asking questions respectfully. This in turn leads to greater levels of response to the questions and better quality data that enables better decisions to be taken.

Asking individuals to disclose their sex may raise privacy issues. Public bodies should give consideration to whether an intrusion into someone's private life has a legitimate purpose and is proportionate. This is particularly true when asking trans people to disclose their trans status. As such, making sure questions offer an option of "prefer not to say" is very important. This has been considered when developing the questions in this guidance.

The Scotland's Census 2022 question on sex and the voluntary question on trans status or history have been thoroughly tested, are respectful and offer a way to collect data on both sex and trans status.