Thread by @Sexnotgender_

Hi @euromove @EHRC @EHRCChair @KishwerFalkner @trussliz @GEOgovuk

The 'Diversity Monitoring Form' in your job application says you "want to create an inclusive environment that supports diversity"...

europeanmovement.co.uk/diversity_moni… 1/21

... and that the information provided helps you "monitor and evaluate its delivery". 2/21

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… 3/21

I also note the EHRC guidance on this:

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

equalityhumanrights.com/sites/default/… 4/21

Under the heading of 'GENDER IDENTITY', you ask "What is your gender identity?" with options:

Male (including trans male)
Female (including trans female)
Non-binary
Other 5/21

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

legislation.gov.uk/ukpga/2010/15/… 6/21

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. 7/21

As female and male are the terms in the Act relating to the protected characteristic of sex, using them for some other question can only be confusing.

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

sexnotgender.info/gender-is-not-… 8/21

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. 9/21

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

'Gender identity' at birth is a meaningless concept and is not 'assigned' at birth: sex is observed and recorded and is immutable. 10/21

You then ask "What are your preferred pronouns?" but you don't say why you are asking for this information. 11/21

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/… 12/21

Asking about a personal characteristic such as 'gender identity' 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. 13/21

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-… 14/21

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… 15/21

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 16/21

If you choose to discriminate on characteristics (such as 'gender identity') that are not protected characteristics under the Act, you may inadvertently indirectly discriminate on protected characteristics. 17/21

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… 18/21

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/… 19/21

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. 20/21