Thread by @Sexnotgender_

Hi @ICOnews @EHRC @EHRCChair @KishwerFalkner @RJHilsenrath @trussliz @GEOgovuk

The Equal opportunities and recruitment monitoring form in your job application correctly has sex in a list of the protected cahracteristics under the Equaltiy Act 2010.

However...

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...you then ask for the 'gender' of the applicant with options:

Male
Female
Transgender
Agender
Aporagender
Bigender
Demiboy
Demigirl
Genderfluid
Gender Neutral
Intergender
Non-Binary
Pangender.

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

legislation.gov.uk/ukpga/2010/15/…

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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. None of the other terms you use are defined or used in the Act and are not part of any protected characteristic.

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

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In the relevant privacy policy, you state:

"Any [equal opportunities] information you provide will be used to produce and monitor equal opportunities statistics."

ico.org.uk/global/privacy…

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However, since 'gender' is not a protected characteristic under the Act (or even defined in the Act) and therefore not part of equality monitoring of protected characteristics, it is not clear on what lawful basis under GDPR you are processing this personal information.

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I would be grateful if you would clarify this.

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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.

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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 grounds.

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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.

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Nor is it clear how you can have had due regard to the other duties given the data you have collected.

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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.

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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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