Thread by @Sexnotgender_

Hi @northumbriapol @NorthumbriaPCC @KiMcGuinness @EHRC @EHRCChair @KishwerFalkner @trussliz @GEOgovuk

The 'Equal Opportunities' section of your job application form says you encourage 'the reporting of data in relation to these protected characteristics'. 1/32

As it is a part of your job application process, I assume its purpose is to help you to ensure that you are recruiting without unlawfully discriminating under the Equality Act 2010.

sexnotgender.info/equality-diver… 2/32

I also note the EHRC guidance on this:

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

equalityhumanrights.com/sites/default/… 3/32

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/… 4/32

You list 'Sex Equality' as a protected characteristic under the Act. The protected characteristic is sex. 5/32

You ask "What term best describes your gender?" with options:

Male
Female 6/32

'Gender' is not a protected characteristic under the Equality Act 2010 and is not defined in the Act (and you do not have that in your list of protected characteristics).

legislation.gov.uk/ukpga/2010/15/… 7/32

See also: ‘Gender’ is not a protected characteristic, admits EHRC

sexnotgender.info/gender-is-not-… 8/32

The 'further information' on this says "Gender identity refers to a person's internal sense of whether they're male or female, both, or neither. Gender identity may not be visible to others" 9/32

This seems to concern 'gender identity' and not 'gender' but is based on gender ideology and not the Act. Female and male are the terms in the Act relating to the protected characteristic of sex so using them for some other way can only be confusing. 10/32

You also ask "What term best describes your sex?" with options:

Male
Female
Intersex
Prefer to self describe 11/32

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 and there is no other way of defining sex. 12/32

Intersex is not a sex and those with a Difference of Sex Development are still male or female. It is generally considered derogatory to those with DSDs to consider them not to be male or female.

What is DSD? dsdfamilies.org/parents/what-d… 13/32

The 'further information' on this says "A person’s sex refers to physical biology; the sex you were assigned at birth."

Sex is not 'assigned' at birth: sex is observed and recorded and is immutable. 14/32

I also note that the EHRC, in their own recruitment equality monitoring, ask for the sex of applicants with options of female and male. This would appear to be a good model to follow. 15/32

You then ask "Is your gender the same that was assigned to you at birth?" 16/32

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

legislation.gov.uk/ukpga/2010/15/…

'Gender' is not 'assigned at birth'. 17/32

'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. 18/32

There is a protected characteristic of 'gender reassignment', but it is defined in the Act in terms different to those you use here and you don't ask about this protected characteristic.

legislation.gov.uk/ukpga/2010/15/… 19/32

Asking about a personal characteristic such as 'gender' that is not a protected characteristic under the Act, may be in breach of the UK GDPR by processing personal - and potentially Special Category - data without a lawful basis. 20/32

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-… 21/32

The EHRC state that information about a person's 'transgender status' is Special Category personal information under the UK GDPR. Sex is not, so conflating sex and 'gender' as you do may cause issues in processing the information lawfully.

equalityhumanrights.com/en/publication… 22/32

If you choose not to gather correct 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. This could be vital in an employment tribunal. 23/32

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. 24/32

You might also like to take note of what employment and discrimination Barrister Akua Reindorf said in her report for the University of Essex and in particular Recommendation 18:

cloisters.com/reindorf-revie… 25/32

You might like to note what Reindorf also said about the relationship with Stonewall in Recommendation 28 of her report. You might also wish to consider the 'benefits and disbenefits' of any relationship with Stonewall. 26/32

I would also suggest you read this report that highlights the risks and dangers (both reputational and legal) of relying on and processing inaccurate, misleading or downright wrong information about protected characteristics under the Equality Act.

sex-matters.org/posts/updates/… 27/32

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. 28/32

Nor is it clear how you can have had due regard to the other duties given the data you have collected and not collected. 29/32

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. 30/32

I raised many of these issues over a year ago and although you have changed some aspects there is clearly a lot more that you need to do.

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