House of Lords to debate digital identity amendments again

The Data Bill is back in the House of Lords this afternoon for the ‘ping pong’ stage of counter-amendments between the Lords and the Commons. 

The bill provides the legislative framework for digital verification services (DVS), which will allow people to prove their identity and facts about themselves by using apps and online services, backed by a government “trustmark”. 

The government says it supports the principle of data accuracy, but it is still going ahead with an approach based on the historic mess which has allowed “sex or gender identity” to substitute for sex in official records. This will allow people to have officially endorsed digital identities that allow them to “prove” that they are the opposite sex. 

Following the recent Supreme Court judgment which confirmed the importance of sex (meaning biological sex) as a characteristic in life and in law, it is critical that the government’s new digital identity system enables everyone to verify their sex data accurately, and does not “verify” false information or the mixed category “sex or gender” (which cannot be verified). 

The issue of unreliable data based on gender self-identity has already been discussed in the House of Lords. Safeguards were added to the Data Bill through amendments introduced by Lord Arbuthnot and Lord Lucas in January. These amendments were then removed in March in the Commons as the Government did not support them. They are now going to be proposed again by the Conservative front bench in the Lords. 

Since then the Supreme Court has pronounced clearly that the Scottish Government was wrong about the meaning of sex in the Equality Act. The Scottish Government’s position was also that of the UK Government, and of every regulator. 

The idea that “everything is okay” and nothing needs to be done with this bill to solve the problem of inaccurate and confused sex data is preposterous. 

The government appears to be suggesting that the DVS system will be able to “verify” gender as well as sex – despite the fact that the Supreme Court has made clear that gender is not a legal category that is recognised in UK law. It is planning to replicate the confusion that the Supreme Court has just cut through. 

Sex Matters has produced a briefing for peers on the amendments:

This includes the findings of a YouGov poll which asked people what sex data should be based on for digital verification services. The majority of people (54%) say biological sex at birth. 

The problem with current sex data collected by public authorities

Public authorities such as the DVLA, Passport Office and NHS allow people to change their recorded sex on request. This has been done by these agencies without any legislation, parliamentary oversight or robust record-keeping. It is estimated (based on the census) that up to 100,000 people may have different sexes recorded by different public bodies. 

If this problem is not solved before the government feeds this data through its new “information gateway” it will now be putting a false and unreliable “proof” of sex in everyone’s pocket. 

Not only does this allow people to have an app on their phone that “proves” they are the opposite sex – which data users will be required to treat this as authoritative information with government endorsement – but because different apps can get data from different government sources, they could switch apps and so switch sex at the press of a button. 

This will destroy the ability to reliably share and use data about sex, which is crucial for safeguarding, healthcare, single-sex services, sports and collecting demographic data, and for compliance with the Equality Act. 

In the debate in the House of Commons on 8th May 2025, Chris Bryant MP, the Minister of State for Data Protection and Telecoms, said that the government accepts the Supreme Court ruling and agrees that data accuracy is important. Nonetheless, he rejected an amendment by Dr Ben Spencer (which would have done something similar to these Lords amendments) and made a series of excuses for refusing to take adequate action. (Read these in more detail in our report of the debate.)

Excuse 1: don’t worry, we are already fixing bad sex data

IN FACT: While the government says it recognises the need for accurate sex data, it has given no indication that it has an effective plan to fix the historic failure illustrated by the Sullivan review. Meanwhile, it is steaming ahead with the Data Bill, establishing a new information gateway which will allow these inaccurate datasets to be used as the foundation for the new digital verification system. This is a problem that urgently needs solving. 

Excuse 2: digital identities don’t change anything

THIS IS FALSE: digital identities create new capabilities. Currently, people can use their passport to show a false sex, but when doing so they also reveal their name and date of birth. And any data user who is aware that “passport sex” is unreliable can reject a passport as proof of sex and use some other source instead, including the evidence of their own eyes. Once digital identities are rolled out, people will be able to “prove” their false sex without revealing any other personal information by using a general-purpose government-endorsed app. One obvious use will be online sexual fraud (“catfishing”). Nothing will stop an individual from having two trustmarked apps on their phone and being able to “prove” they are whichever sex suits them at any given moment. 

Excuse 3: even though digital identities claim to “prove” sex, nobody will use them to prove their sex

THIS IS IRRESPONSIBLE. The aim of the DVS system is to enable people to prove facts about themselves. As the Supreme Court judgment confirmed, single-sex provision is required by law to be on the basis of biological sex. We know that some transgender people are disappointed by the Supreme Court’s ruling and some are already declaring publicly that they intend to flout the Supreme Court judgment and continue to try to use spaces, services and sports intended for the opposite sex. The government should not be providing such people with a way to digitally “prove” a falsehood about their sex that will make it hard or impossible in practice for a service provider to restrict entry to a single-sex space or service to people who are entitled to be there.

Excuse 4: the new clause goes significantly further than the findings of the Supreme Court

THIS IS WRONG. The Supreme Court made clear that a person’s sex is a fact about them that is needed for many everyday interactions including use of single-sex and separate-sex services, as well as for health and social care, the public-sector equality duty and positive-action measures. Having accurate data does not mean that a trans person will be “outed” when proving their age to buy a bottle of wine or proving their identity to hire a car. These interactions do not require sex data at all.

Excuse 5: “trans rights” mean bad sex data can’t be fixed 

THE LAW REQUIRES DATA ACCURACY. Data-protection laws already require that when personal data is recorded by data collectors, it is accurate. The only reason this is not already happening is that, when it comes to sex, this law is widely flouted. Many public authorities have long recorded “gender identity” instead for some people. Recording people’s sex accurately for a lawful purpose does not interfere with their Article 8 rights. The DVS system will only share people’s information with their consent. 

Excuse 6: fixing bad sex data is incompatible with the Gender Recognition Act

THIS IS CONFUSED. The government has expressed concern that: “the amendment does not take account of the fact that the Gender Recognition Act 2004 gives those with gender-recognition certificates a level of privacy and control over who has access to information about their gender history”. The amendment does not seek the recording of people’s “gender history”. It seeks to ensure that biological sex is recorded accurately and can be shared or kept private for any particular interaction, with user consent. This does not breach the Gender Recognition Act. 

This is simply not good enough. Unless Parliament addresses this problem we will end up back in court demanding that sex-based rights be upheld.