What’s Wrong with Sex and Gender Identity in the 2021 Census for England and Wales – Part II

Giovanna Gilleri is a PhD Researcher in International Human Rights Law at the European University Institute (EUI), Florence, Italy.

Photo credit: Mačka

Neither sex nor gender are immutable

A closer look at the ONS’ ethos reveals the reasons behind the choice of such an overemphasis on sex on the one hand, and the binary configuration of it on the other. In its ‘Guidance for questions on sex, gender identity and sexual orientation,’ the ONS underscores that sex is ‘a core demographic variable.’ The sex question, the ONS argues, ‘has been asked in every census since 1801.’ For the ONS, the interpretation others give of one’s sex at birth is a fundamental factor to describe populations. The essentialist conception underlying the 2021 census mirrors this approach. The 2021 census is essentialist in that it gives primacy to sex by assuming that gender is biologically determined by sex.

Truly, the ONS describes the gender identity question as a step forward in the history of census design: gender identity appears ‘for the first time in a census in 2021.’ It recognises that ‘gender is increasingly understood as not binary but on a spectrum.’ Further, the 2021 census envisages the gender recognition certificate in alternative to the birth certificate, but, where present, this constitutes the correction of a predefined status. In other words, the principle is that we all receive a sex/gender assignment at birth; the exception is that a few of us decide to amend it. The ONS deals with gender identity and sex characteristics differently. ‘Essentially,’ the ONS claims, ‘nearly all people are born with physical characteristics that are labelled male or female.’ This attitude is closer to the binary than the ONS’ approach to gender, justifying, or at least explaining, the binary formulation of the answer to the sex question. Sex plays an essential role in the census.

The essentialist view of sex sees that sex is immutable from the cradle to the grave (p. 246) because of its biological nature, which also objectively determines one’s ‘real’ gender. An example of essentialism is reliance on testosterone levels to draw the line between distinct categories of men and women, as in the much discussed case of middle-distance runner Caster Semenya. However, research has shown that there is no single sex marker, no single measure (para. 26) that could determine that one belongs to one of two categories, male or female.

Essentialism does not consider the influence of culture on sex/gender determination (at birth). Gender and sex are both socio-cultural constructs. This is why I use ‘sex/gender’ where I do not examine specifically the single notion of ‘sex’ or ‘gender.’ The definitions of sex and gender result, for instance, from the interaction between the culture of that era and the subject’s unconscious (p. 142) sense of the self. Gender is a fundamental element of one’s identity. The relation between sex characteristics and gender identity is intimate, although anatomy does not determine alone the individual’s sex. On the one hand, the external eye establishes what sex that anatomy matches. On the other hand, the ways one conceives their sex characteristics and conceptualises their gender identity in relation to their bodily parts vary across the lifespan. Indeed, people may feel the need to change their body in order to live and stay true to their gender identity within the gender spectrum.

Nevertheless, the dominant view in the social discourse is that there are two sexes and two genders, and that sex determines gender. This stereotyped binary conception of sex, gender, and their interrelation is falsified by diverse types of existences. First, that sex is unclassifiable in the dualistic and alternative pair male/female is demonstrated by intersex bodies. There is more diversity in humanity than the binary. Intersex individuals have different sex variations, including chromosomal, genital, and/or hormonal characteristics, which, present to different degrees, do not fit the typical definitions of male or female anatomy (p. 18). Second, trans people does not conform themselves with the sex/gender they were assigned at birth but have other binary or non-binary gender identities.

The ONS has recently declared that they are ‘continuing to ask a binary choice male/female sex question.’ The 2021 census represents the prevailing but exclusionary view in society: sex is the primary descriptor of one’s gender. The ONS ignores human rights regional approaches. Regional courts have abandoned such an overemphasis on sex. The 2021 census reproduces the European Court of Human Rights’ surpassed idea that anatomical sex is the prerequisite for gender legal classification in trans-related cases. From the narrow focus on genitalia as the determinants of one’s gender (Goodwin v UK,2002), the Court recently condemned compulsory sterilisation as a prerequisite for legal gender change (A.P., Garçon and Nicot v France, 2017) and moved to the legal recognition of gender identity irrespective of any modification of sex characteristics  (X and Y v Romania, 2021). Although things are not rosy yet, the inner sense of the self has become less and less attached to, sometimes detached from, bodily traits (sex).

The sex-based structure of the 2021 census has another implication. Respondents to the 2021 census will very likely move to the gender identity question if they do not identify themselves with the sex/gender recorded in the birth certificate. People falling out of the sex/gender binary remain obscured by the generic answer to the gender identity question. The census overlooks health and other political, cultural, and socio-economic disadvantages by failing to provide these respondents with the possibility of representation. This causes the impossibility to create a link between these individuals, their needs and the human rights protections they may require.

The 2021 census ignores human rights developments on sex/gender (assignment)

That we look at sex and gender through the eyes of culture is what the 2021 census fails to grasp. Sex and gender are points in a multidimensional (p. 22) space. Gender results from culture and it is through the eyes of gender norms that humans classify sex characteristics, traditionally into male or female. Culture determines what makes a body a ‘male’ or a ‘female.’ These categories are the result of the accumulation of cultural assumptions about anatomical appearance. One thing is sex characteristics; another is the ascription of a body to a category on the basis of those sex characteristics. The origins of sex are natural, but there is nothing objective or innate (para. 16) in sex/gender assignment. Rather than an act of automatic attribution, this is a social determination that depends on others’ perception of one’s genitalia. This understanding of assigned sex/gender is adopted also by the Inter-American Court of Human Rights in its advisory opinion OC-24/17, as I recently explained. The Court defines sex as a biological construct referring to the genetic, hormonal, anatomical, and physiological characteristics according to which a person is classified as male or female at birth. The 2021 census is far from these human rights developments. The ONS embraces an essentialist conception considering sex the fundamental notion on which gender builds.

While the Court’s advisory opinion constitutes one among many interpretations that human rights bodies have given to the notion of sex, it nevertheless represents a growing trend in the human rights arena, both at regional (para. 67) and international (para. 20) levels. Conceiving sex, gender and gender identity (and sexual orientation) as cultural constructs allows for the inclusion of diversity of sexed/gendered individuals in the human rights discourse, and for their protection.

Misinforming on sex and gender, neglecting human rights interpretation

To sum up, the ONS’ explicit goal underlying the shift of focus from gender identity to sex is to bring visibility to trans people, especially in relation to the provision of health services. The means do not meet the end, though. Certainly, a survey integrating a question on sex with another on gender identity mirrors real-world gendered identities to a greater extent than the vast majority of other censuses relying on the category of legal sex/gender only. But this is not enough. The 2021 census will most likely disinform decision-makers, due to its overemphasis on sex as the primary component of one’s (legal) identity, and the confusion on the relation between sex and gender identity. A mandatory question based on gender identity instead of sex would have been not only a change of variable but a paradigm change. This would have been in line with the ONS’ declared purposes and, above all, with those of human rights law of ensuring protection to all individuals. The obligation to respect, protect, and fulfil trans people’s rights requires that the state recognises (the size of) the trans population and establishes the adequate services to satisfy their needs.