Publication - FOI/EIR release

The Scottish Government definition of gender: FOI release

Published: 5 Feb 2021

Information request and response under the Freedom of Information (Scotland) Act 2002

Published:
5 Feb 2021
The Scottish Government definition of gender: FOI release
FOI reference: FOI/202000116319
Date received: 25 Nov 2020
Date responded: 18 Dec 2020
Information requested

“The Office for National Statistics and UK Government bodies have set out their definition of the terms "sex" and "gender" here:
https://www.ons.gov.uk/economy/environmentalaccounts/articles/whatisthedifferencebetweensexandgender/2019-02-21

Could you please let me know if the Scottish Government is in concurrence with these definitions, or, if not, please supply me with the definitions used instead."

Response

1. The Scottish Government does not have this information that you have requested because it has not stated whether it is in concurrence with the Office for National Statistics and UK Government definitions of the terms “sex” and “gender”.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

2.  Although the Scottish Government does not hold information on whether it is in concurrence with the definitions of sex and gender used by the Office for National Statistics and UK Government, information on the definitions used by the Scottish Government is set out below.

The Scottish Government gives sex its ordinary meaning. The Equality Act 2010 says that in relation to the protected characteristic of sex, a reference to a person who has a particular protected characteristic is a reference to a man or to a woman. Man and woman are defined for the purposes of the 2010 Act at section 212; ‘man’ means a male of any age and ‘woman’ means a female of any age.

The Scottish Government does not have an official definition of gender.

Information provided out with FOISA
You may also wish to be aware that the Cabinet Secretary for Social Security and Older People has asked Scotland’s Chief Statistician to bring together a working group to look at the way data on sex and gender is collected and published, and put together guidance for public bodies in Scotland. The terms of Reference for the Working Group covers the definition of sex and gender in the scope of its work.

Whilst this work is still in progress, a first draft of guidance on the Sex and Gender in Data Working Group’s gov.scot group page: Sex and Gender in Data Working Group - gov.scot (www.gov.scot) sets out proposed definitions for sex and gender, based on the definitions used across a number of organisations.

While the terms sex and gender are used by some people interchangeably, a number of organisations have set out a set of definitions[1]. The definitions stated are broadly similar across these organisations.

They define sex as generally whether you are male or female, though for some people this does not reflect their innate sense of themselves. There are different aspects to a person’s sex:

  • Biological aspects of an individual as determined by their anatomy, which is produced by a combination of their chromosomal, hormonal, genital and gonadal characteristics, and their interactions.
  • The aspect of legal sex, which can change if a full Gender Recognition Certificate (GRC) is obtained. For a trans person with a GRC, their legal sex is their acquired sex. For a trans person without a GRC or other people, their legal sex is their sex registered at birth.[2]

The Equality and Human Rights Commission (EHRC)’s “Statement on Sex and Gender Reassignment: legal protections and language[3]” explains that in UK law sex is understood as binary and a person’s legal sex is determined by what is recorded on a person’s birth certificate. A trans person can change their legal sex by obtaining a GRC and a trans person who does not obtain a GRC retains the (legal) sex recorded on their birth certificate for legal purposes.

Organisations such as the World Health organisation and the Royal Statistical Society[4] define gender as:

  • a social construction relating to behaviours and attributes based on labels of masculinity and femininity;

gender identity as:

  • a personal, internal perception of oneself and so the gender category someone identifies with may not match their sex at birth;
  • what an individual experiences as their innate sense of themselves as a man, a woman, as having no gender, or as having a non-binary gender –
  • where people identify as somewhere on a spectrum between man and woman


[1] For example the World Health Organisation, the Royal Statistical Society, and the USA Federal Interagency Working Group on Improving Measurement of Sexual Orientation and Gender Identity in Federal Surveys.
 

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