Thread by @Sexnotgender_

Hi @fifecouncil @FCJobsOfficial @EHRC @EHRCChair @KishwerFalkner @trussliz @GEOgovuk

You don't say why you collect 'DIVERSITY INFORMATION' in your job application, I assume its purpose is to help you to ensure...

cc @alasdair_clark @thecourieruk @KirkcaldyPolice

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...that you are recruiting without unlawfully discriminating under the Equality Act 2010.

sexnotgender.info/equality-diver…

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I also note the @EHRC guidance on this:

Good equality practice for employers: equality policies, equality training and monitoring

equalityhumanrights.com/sites/default/…

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I note you also have a public sector equality duty to have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act as well as the other duties of s.149 of the Act.

legislation.gov.uk/ukpga/2010/15/…

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You ask for the 'Gender' of the applicant with options:

Female
Male

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'Gender' is not a protected characteristic under the Equality Act 2010 and is not defined in the Act.

legislation.gov.uk/ukpga/2010/15/…

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Sex is the protected characteristic and the only two possible options for sex are 'Female' and 'Male' as defined in the Act and consistent with biology, but you don't ask for that.

legislation.gov.uk/ukpga/2010/15/…

'Gender' is not a synonym for sex.

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You then ask for the 'Gender Identity' of the applicant with options:

No - Not Trans/No Trans History
Yes - Trans/Have Trans HistoryYes

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'Gender identity' is not a protected characteristic under the Equality Act 2010 and is not defined in the Act.

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'Gender' and similar terms rely on demeaning, regressive stereotypical notions of societal roles for the two sexes, concepts with which I'm sure you would not wish to be associated and concepts that, if relied upon, might compromise your PSED.

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There is a protected characteristic of 'gender reassignment', but the terms you use here are not used or defined in the Act.

legislation.gov.uk/ukpga/2010/15/…

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Asking about a personal characteristic such as 'gender' that is not a protected characteristic under the Act, may be in breach of the GDPR by processing personal - and potentially Special Category - data without a lawful basis.

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The Government provides a list of the personal data an employer may hold about an employee without their permission that you might also find useful. 'Gender' does not appear on that list, but sex does.

gov.uk/personal-data-…

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If you choose not to gather data on specific protected characteristics (such as sex), you cannot have the information required to ascertain whether or not you could be discriminating on protected characteristics in recruitment. This could be vital in an employment tribunal

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If you choose to discriminate on characteristics (such as 'gender') that are not protected characteristics under the Act, you may inadvertently indirectly discriminate on protected characteristics.

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Given these errors and your use of incorrect terms, it's not clear how you can meet your Public Sector Equality Duty or how you have met it in the past given your data could have been corrupted by those who didn't provide their sex.

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Nor is it clear how you can have had due regard to the other duties given the data you have collected.

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You might also like to take note of what employment and discrimination law Barrister Akua Reindorf said in her report on the @uni_of_essex and in particular Recommendation 18:

cloisters.com/reindorf-revie…

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Language and meaning of words are important and proper use & understanding of terms is vital so that the public is aware of what rights they have and what your duties are. Any confusion or inconsistency over meaning may prevent people from accessing their rights in law.

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