Data Bill may permit self-ID and undermine lesbian associations

The UK government is currently introducing a Data Bill which threatens to undermine the For Women Scotland ruling that sex is biological.

Image from Sex Matters website

The Bill will establish an “information gateway” providing information about individuals’ identity and other data. It would be a great idea, if only the system was going to provide an accurate record of one of the most basic facts of all – an individual’s sex. But the current plan will, inexplicably, allow the falsification of sex in this new system. Once that false record has been created, it will be almost impossible to prove someone’s actual sex, for example to prevent a man from gaining access to lesbian associations or women-only services.

The benefits of the system are that people will be able to use it to prove facts about themselves, which are no more than absolutely required. Someone wanting to prove that she was over 65 to obtain a senior rail card, for example, would be able to use it to confirm that she meets the age criterion, without also providing additional data such as her date of birth or even her age, or her address. In many ways this will help protect people’s privacy and will make proving personal data a great deal quicker and simpler than at present.

 Public authorities, such as the passport office, banks or the NHS etc, will be able to share people’s personal information (with their consent) to create this digital ID. But, and it is a very big but, the system will draw on information from organisations that have already allowed people to falsify their sex. For several years now, DVLA, the NHS, and even the passport office, have allowed people to register the wrong sex on their documents, on the basis of self-ID, despite there being no legal authority for this. The ability to wrongly record sex on official documents has not been limited to people with a GRC who have a certificated sex that is opposite to their birth sex, but extends to those who self-ID. All that has been required in many cases was a letter from a doctor.

The recent judgment in the For Women Scotland case, specifically mentioned data collection (Paras 237 – 244), and the essential need to accurately record someone's biological sex, distinct from their gender identity. This is, partly, because accurate data must be collected to help fight the disadvantages experienced by women.

However, as currently envisaged, the new system will simply accept the wrong information already recorded. This will have serious implications for lesbian associations. As the architect of the lesbian intervention in the For Women Scotland case, I was very pleased that our right to lesbian-only spaces was resoundingly recognised by the judgment. It is clear that we have the legal right to exclude all males from our lesbian associations, such as Lesbian Persistence. However, it will be completely impossible for us to implement that right if we are denied any possibility of establishing someone's actual sex, rather than their fantasy one. A digital ID would have been an excellent opportunity to make this process simple, and allow us to protect our organisations and spaces. 

If someone we suspect is a man asks to join Lesbian Persistence, what are we to do? One answer, if the UK possessed accurate identity documents, would be for us to simply ask to see their digital ID, and to make this a condition of entry. However, this new national system will systematically allow people to falsify their sex, so will not be trustworthy.

Policing our newly confirmed right to freedom of association was always going to be problematic. Unfortunately, the new legislation, as currently envisaged, will move that bar from being difficult to becoming completely impossible. It is clear that another legal challenge would need to be mounted, wasting yet more time and money from both women and the government. 

As things stand, it seems the Government is intent on introducing self-ID through the back door.  

For more information see the Sex Matters website – they’ve been running a great campaign, which you might want to support.

Sally Wainwright