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

Jan 6, 24 tweets

Hi @WhitHealth @EHRC @EHRCChair @KishwerFalkner @trussliz @GEOgovuk

The 'Equal opportunities' section of your job application gives a partial list of the protected characteristics under the Equality Act 2010: 1/24

It's good to see you include the protected characteristic of sex.

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.… 2/24

I also note the EHRC guidance on this:

Good equality practice for employers: equality policies, equality training and monitoring… 3/24

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.…

You then ask questions under a number of subheadings:

General questions
Ethnic Origin
Equality and Diversity Monitoring
How did you learn of this vacancy? 5/24

Under 'General questions', you ask for the 'Gender' of the applicant with options:

Female 6/24

'Gender' is not a protected characteristic under the Equality Act 2010, is not defined in the Act and is not in your list.… 7/24

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.…

'Gender' is not a synonym for sex. 8/24

See also: ‘Gender’ is not a protected characteristic, admits EHRC… 9/24

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 and could lead to gathering inconsistent and contradictory data. 10/24

Then, under the heading 'Equality and Diversity Monitoring', you ask, "Do you now or have you ever identified as trans or transgender?" 11/24

'Trans' and 'transgender' are not protected characteristics under the Equality Act 2010 and these terms are not used or defined in the Act. 12/24

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 and it was not in your list.… 13/24

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. 14/24

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.… 15/24

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.… 16/24

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 17/24

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. 18/24

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:… 19/24

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.… 20/24

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. 21/24

Nor is it clear how you can have had due regard to the other duties given the data you have collected and not collected. 22/24

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. 23/24

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