Thread by @Sexnotgender_

Hi @ChildrensComm @Rachel_deSouza @EHRC @EHRCChair @KishwerFalkner @trussliz @GEOgovuk

The 'Equal opportunities & diversity Monitoring form' in your job application says "We want to ensure that our recruitment & selection process are fair & equal"

childrenscommissioner.gov.uk/wp-content/upl… 1/20

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… 2/20

I also note the EHRC guidance on this:

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

equalityhumanrights.com/sites/default/… 3/20

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/… 4/20

You ask, "Are you" with options:

Male
Female
Transgender
Prefer not to say 5/20

As female and male are the terms in the Act relating to the protected characteristic of sex, I assume you are trying to gather information on this protected characteristic.

legislation.gov.uk/ukpga/2010/15/… 6/20

The only two possible options for sex are 'Female' and 'Male' as defined in the Act and consistent with biology.

'Transgender' is not a sex and is a term not used or defined in the Act. 7/20

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. 8/20

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/… 9/20

Asking about a personal characteristic 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. 10/20

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.

gov.uk/personal-data-… 11/20

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 this with sex may cause issues in processing the information lawfully.

equalityhumanrights.com/en/publication… 12/20

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 13/20

If you choose to discriminate on characteristics (such as 'transgender') that are not protected characteristics under the Act, you may inadvertently indirectly discriminate on protected characteristics. 14/20

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… 15/20

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/… 16/20

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. 17/20

Nor is it clear how you can have had due regard to the other duties given the data you have collected and not collected. 18/20

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. 19/20

Will you undertake to correct these errors and to review all your other policies, documents, reports, etc to ensure compliance?

Please respond.

sexnotgender.info/list

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20/20

Hi @ChildrensComm, @Rachel_deSouza

I see you are advertising a new vacancy: childrenscommissioner.gov.uk/job/senior-com…

I previously raised some issues about your "Equal opportunities & diversity Monitoring form" but did not receive a reply. Can you respond now, please?

Hi @ChildrensComm @Rachel_deSouza @EHRC @EHRCChair @KishwerFalkner @trussliz @GEOgovuk

I see you're recruiting again, this time for a Director of Policy, Planning and Delivery:

childrenscommissioner.gov.uk/job/director-o… 1/13

I also see you've changed your 'Equal opportunities & diversity Monitoring form'

When I last looked in February, you included 'Transgender' alongside Female and Male as if 'transgender' was a sex:

2/13

Your latest form is now titled 'Equality and Diversity Monitoring Form' and has options:

Male
Female
Intersex
Non-binary
Other

It's good to see you have removed 'transgender' but 'Intersex' and 'non-binary' are not sexes. 3/13

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… 4/13

The only two possible options for sex are 'Female' and 'Male' as defined in the Act and consistent with biology. 'Non-binary' is not a sex.

legislation.gov.uk/ukpga/2010/15/… 5/13

You now also ask, "Is the gender you identify with the same as your gender registered at birth?"

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

legislation.gov.uk/ukpga/2010/15/… 6/13

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

sexnotgender.info/gender-is-not-…

'Gender' at birth is a meaningless concept and 'gender' is not registered at birth: sex is observed and recorded and is immutable. 7/13

'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. 8/13

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/… 9/13

If you don't collect data on the Equality Act's protected characteristic of gender reassignment you cannot know that you are not discriminating against those with that protected characteristic. 10/13

I cannot see how you can expect the public to trust you to deliver for children and champion their voices and needs if you are unable to properly understand and represent the Equality Act and the basic characteristics of sex, so fundamental to child safeguarding. 11/13

Can you please review your form again, correct these errors & review all your other policies, documents, reports, etc to ensure compliance? 12/13

Please also respond to the other points I have raised, including those relating to UK GDPR.

sexnotgender.info/list

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