Rónán Mullen (Independent)
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Cuirim fáilte roimh an Aire Stáit. The census has now taken place and has hopefully reached the stage where the last few forms are trickling back to the Central Statistics Office, CSO, either via the census enumerators or by post. It is important that we get some clarity on an issue that arose before the census took place. Senator Malcolm Byrne raised this matter at one point and I have also raised it a few times in the House. In March, the CSO issued some rather strange guidance regarding the question on the census form that asked a person's sex and whether they were male or female. On its website, the CSO advised people as follows:

If you are uncomfortable ticking one of these options you may signal this by marking both boxes. However, for statistical analysis purposes all entries will be assigned a sex ... at random.

This advice was truly bizarre. Regardless of what one thinks of the debate about the easily labelled but not so easily defined issue of transgender rights, this issue raises two significant problems. First, to assign sex at random is ridiculous since it will skew the result of the census to some degree. While mathematically, with a 50:50 chance of the correct sex being randomly assigned the difference might be very small, the whole idea of the census is that it should be as accurate as humanly possible. That aspiration is predicated on the legal requirement for people to give accurate information. That CSO advice seemed to deliberately incorporate, envisage and encourage inaccuracy in the results.

Second, and far more serious, is the issue I just mentioned.The advice from the CSO to mark both the male and female boxes appears to induce or encourage people to fill out the census form in a way that commits a breach of the law. The census form itself references section 43 of the Statistics Act 1993, which states that any person who knowingly provides false information "may be subject to a fine of up to €44,440.". There are no ifs, buts or maybes about that. It is a serious breach carrying a serious fine, to knowingly provide false information and anybody, as I have said, who knowingly provides false information is subject to such a fine. There is no exemption in the Act for anybody who is "uncomfortable" about answering truthfully and yet anyone who followed the guidance on the CSO website would be clearly breaching the law. It is not possible to be both male and female at the same time. To say that one is both male and female is completely false. It is clear breach of the Statistics Act and in this case, a breach encouraged by the CSO.

A statutory agency appearing to condone a breach of the law governing its own statutory functions is a serious matter and I ask the Minister of State to address a number of issues arising from this. First, how does the guidance from the CSO possibly accord, in the Government's view, with the provisions of the Statistics Act of 1993? Does it not fly in the face of section 43 of that Act? Second, why was the CSO encouraging people to break the law by giving false information in a census form? Third, was the Taoiseach consulted before such advice was issued? Fourth, are there any other sections of the census form which people could disregard if they are "uncomfortable" with answering accurately or does the exemption only apply to people who consider themselves to be transgender and if so, what is the logic underpinning that?

Those are my issues and I hope I have stayed within the allotted time. I think I have, by 23 seconds. I have set a record for myself. I try not to do that too often.

Jack Chambers (Dublin West, Fianna Fail)
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Under Commission Regulation (EU) 2017/543, the CSO is legally obliged to produce data on sex, with response options limited to male and female only in census 2022. This is reflected in question No.2 on the census form which asks "What is your sex?" with response options of "Male" and "Female".

The CSO launched a public consultation on the content of the census 2022 questionnaire in late 2017. As part of this consultation, members of the public and interested stakeholders were invited to submit their requests for new questions and revisions to existing questions. To assist the CSO in assessing the submissions, a census advisory group, CAG, was formed. Membership of the CAG was drawn from organisations and groups who regularly use census data. The CAG made recommendations on which new and revised questions should be tested during a census pilot survey which was held in September 2018. Following the pilot, the CAG assisted the CSO in deciding which questions should be recommended to Government for inclusion on the census form.

During the consultation process, several submissions were made requesting a new question on gender identity. As gender identity is an emerging area for statistical data collection, the CAG proposed that the CSO should test and develop a new question that would capture robust data on gender identity before it should be considered for inclusion on a census. Subsequent to the consultation, the CSO has introduced a new gender identity question on both a household survey and as part of the new PULSE surveys. The CSO's view is that the new question has performed well and that it will be recommended for pilot testing as part of the preparations for the next census. Inclusion of the new gender identity question in the next census will be subject to approval by the CAG and ultimately, by the Government.

The CSO is aware that in the absence of a question on gender identity on the census form, some members of the public may have difficulty in responding to the question on sex as it appears on the census form. In order to make the census as inclusive as possible, the CSO has advised that for people who have such a difficulty, they can mark both male and female boxes. In order to meet the aforementioned EU regulation, the CSO is legally obliged to categorise the sex of all persons on the census as either male or female. When both response options have been marked on the census form, the CSO will be required to impute a value of either male or female to each digital record. The imputation of these values will reflect the distribution of the sex variable across the population, which is approximately 50:50. The digital data will be used as the basis for census statistical publications and will only be released in aggregated form. The CSO will not make any amendments to the paper forms returned from the public. Thus, should someone mark both boxes in the sex question on their census form, this paper record will remain unchanged and will be what is made public 100 years after the census, in line with section 35 of the Statistics Act 1993.

Census 2022 also contains a new time capsule section which provides a space on the form where households have the option to write a message of their choosing. Along with the rest of the census forms, these messages will be placed in secure storage until the release of the forms after 100 years. The time capsules provide an opportunity for members of the public to record information not otherwise captured on the census form. SI 637 of 2020, the census of population order, outlines which questions on the census questionnaire are required to be responded to for each person present in the State on census night. The set of questions will vary depending on factors such as the age and economic status of the respondent. All questions relevant to the respondent require a response.

Rónán Mullen (Independent)
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I thank the Minister of State for his reply but the first thing that strikes me is the tense of the response. Phrases like "the CSO has advised that for people who have such a difficulty, they can mark both male and female boxes" suggest that this is an old script, written at the time that this was first raised and before census night. It suggests to me that the Government has not actually considered the issue I have raised at all, which is about the illegality that I propose was a part of what the CSO recommended. It also illustrates that the CSO knew and foresaw that this was going to be an issue for a long time and yet it went ahead with proposing an illegal approach to the filling out of the census form. Was any consideration given to encouraging people to just not fill out that box? Would that have been a legal satisfaction of the requirement on the citizen filling out the census form? Would that not have been a better solution?

The issue here is that if transgender people can choose not to answer a question on their sex because they are uncomfortable about doing so, then what other sections of the form can be ignored because people are uncomfortable with them? The census asks very personal questions about people's health and relationship status, for example. Indeed, asking farmers to state the acreage of their farms, as everybody knows, is to go where many farmers would not seek to go. If such respondents were uncomfortable about answering the questions accurately, would they be entitled to a dispensation from the CSO? If one question can be answered wrongly, deliberately, then surely all questions could, theoretically, be ignored or answered wrongly. That is the key point.

Eugene Murphy (Fianna Fail)
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Senator, I have been more than generous with the time.

Rónán Mullen (Independent)
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Okay, I will finish now. My worry is that left-wing political ideology is infecting every aspect of public life. The census should be strict and impartial.

Eugene Murphy (Fianna Fail)
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Senator, the same rules must apply to everyone.

Rónán Mullen (Independent)
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It is designed to gather statistics and cold, hard facts in an unabashed manner.

Jack Chambers (Dublin West, Fianna Fail)
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The public-facing phase of the census 2022 project is now complete and the CSO has begun the processing of the collected census forms. During the last number of weeks, the CSO has received queries and observations from members of the public and other stakeholders about the sex question, the advice relating to the sex question and the lack of a gender identity question on this year's census form. These observations will be a valuable input as the CSO embarks on the public consultation process which will ultimately lead to decisions on which questions will be included on the next census. The consultation process is expected to begin later this year and there will be an opportunity for any parties to give their views on all aspects of the census questionnaire, including which new topics should be included in census 2027 and which existing questions should be changed or removed.

Eugene Murphy (Fianna Fail)
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I apologise for cutting across Senator Mullen but I am trying to keep to the show on the road.

Rónán Mullen (Independent)
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I understand.

Eugene Murphy (Fianna Fail)
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I thank the Minister of State for coming in to respond and appreciate Senator Mullen's co-operation.