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Sex. Not gender. It's in black and white. In the Equality Act. See website for disclaimer.

Nov 20, 2021, 29 tweets

Hi @EssexPoliceUK @essexpfcc @EHRC @EHRCChair @KishwerFalkner @trussliz @GEOgovuk

The 'Job-Specific Information' section of your job application form says, "We need to monitor all applications to ensure our equal opportunities policies are effective." 1/29

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.… 2/29

I also note the EHRC guidance on this:

Good equality practice for employers: equality policies, equality training and monitoring… 3/29

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.… 4/29

You ask for the 'gender' of applicants with options:

Prefer not to say
Prefer to self-describe

'Gender' is not a protected characteristic under the Equality Act 2010 and is not defined in the Act.… 5/29

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.

I note you do not provide an option for 'None'. 6/29

You then ask for the sex of applicants with options:


Sex is the protected characteristic but the only 2 possible options for sex are 'Female' and 'Male' as defined in the Act and consistent with biology - 'other' is not a valid option for sex. 7/29

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?… 8/29

You then ask "Is your gender identity the same as the sex you were assigned at birth?"

'Gender identity' is not a protected characteristic under the Equality Act 2010 and is not defined in the Act.… 9/29

Equating 'gender identity' with sex is meaningless and relies 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. 10/29

Sex is not 'assigned' at birth: sex is observed and recorded and is immutable. 11/29

You also say, "The sections relating to gender, sex and gender reassignment aligns to the Equality Human Rights Commission guidance and allows us to collect data across the sex and gender reassignment characteristics." 12/29

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.… 13/29

You may like to note that EHRC recently told BBC journalists Stephen Nolan & David Thompson that the term ‘gender identity’ was NOT interchangeable with ‘gender reassignment’ in relation to the protected characteristics in the Equality Act.


See also: ‘Gender’ is not a protected characteristic, admits EHRC… 15/29

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. 16/29

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. 17/29

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.… 18/29

The EHRC state that information about a person's 'transgender status' is Special Category personal information under the UK GDPR. Sex is not, so the terms 'gender identity' and 'gender' may cause issues in processing the information lawfully.… 19/29

If you choose to discriminate on characteristics (such as 'gender' or 'gender identity') that are not protected characteristics under the Act, you may inadvertently indirectly discriminate on protected characteristics. 20/29

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:… 21/29

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. 22/29

You might also like to consider Stephen Nolan and David Thompson's BBC investigation into Stonewall:… 23/29

I also note that Liz Truss has called for all government departments to withdraw from Stonewall’s 'Diversity Champions' scheme and that the EHRC and many other public bodies have announced they have already left:… 24/29

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.… 25/29

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.

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. 27/29

Nor is it clear how you can have had due regard to the other duties given the data you have collected and not collected. 28/29

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