Both the Solicitors Regulation Authority (SRA) and Bar Standards Board (BSB) are this year changing their approach to recording the sex and gender identity of those they regulate, it has emerged.
In its last biennial survey of the profession’s diversity in 2019, the SRA asked solicitors first which gender they identified with and then whether they considered their gender identity to be different from their registered sex at birth.
In this year’s survey, however, the first question is simply ‘What is your sex?’. It provides for respondents to tick ‘male’, ‘female’, ‘other preferred description’ and ‘prefer not to say’.
The SRA said it changed the wording after considering the research undertaken by the Office for National Statistics (ONS) in preparation for the 2021 census “and listening to a range of voices on the matter”.
It continued: “We appreciate there are many strongly held views on these issues. We understand why the ONS uses a binary sex question which requires people to select male or female as per their legal documents.
“We felt that for us, a more inclusive approach was appropriate, so we have provided a third option for the sex question and do not require you to answer in accordance with your legal sex.”
In March, the ONS settled a judicial review brought by campaign group Fair Play For Women over this year’s census so that the question ‘What is your sex’ was strictly defined to mean sex as recorded on a birth certificate or gender recognition certificate.
Originally, the ONS said people could answer this question by reference to the gender they identified with, even though a new question asking that had been added to the census.
The BSB’s annual diversity survey has asked barristers to state their gender and separately whether their gender identity is the same as the sex that they were assigned at birth.
Barrister Sarah Phillimore tweeted this week: “I am delighted to announce that after a year of complaining about the various permutations of ‘assigned gender’ in BSB diversity surveys, they have taken legal advice and reverted to ‘male, female or prefer not to say’. Separate questions to be asked about gender identity.”
Ms Phillimore stressed that the complaints were not an “attack” on trans people: “This is simply to say that ‘sex matters’ and ought to be recorded transparently and in accordance with the law. If a thing can’t be identified, it can’t be protected.
“We cannot effectively balance the tension between the rights of women and those who wish to be treated as women unless we understand what is actually happening on the ground. The effective erasure of sex by a failure to record it accurately was accepted by the ONS as unlawful. I am glad this is now recognised by the Bar.”
The BSB had no comment.