Thread by @Sexnotgender_

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

I note your new advert for a statistician:

https://twitter.com/EHRC/status/1366055844593426435

The 'Monitoring Information' section of your application form talks about equality and monitoring but...

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... but it also talks about "achieving an inclusive and diverse workforce" so its purpose is not entirely clear.

As it is a recruitment form, I assume its purpose is to help you to ensure that you are recruiting without unlawfully discriminating.

sexnotgender.info/equality-diver…

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I also note your own guidance on this:

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

equalityhumanrights.com/sites/default/…

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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/…

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I note you have 'gender' in a list of protected characteristics under the Equality Act 2010 in the 'Monitoring Information' section.

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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 under the Act, but that is not on your list.

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It's good to see that you do ask the applicant for their sex, under the heading of 'Equal Opportunities', with only the options:

Male
Female.

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As you will be aware, and despite the text above, sex is a protected characteristic and the only two possible options for sex are 'Female' and 'Male' as defined in the Act and consistent with biology.

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You then ask, "Is your present gender the same as the one assigned at birth?"

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

'Gender' at birth is a meaningless concept and 'gender' is not 'assigned' at birth: sex is observed and recorded and is immutable.

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'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.

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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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The Government provides a handy 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'

gov.uk/personal-data-…

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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 characteristics.

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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 include irrelevant characteristics such as 'gender'.

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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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I have raised similar points with you on previous occasions so it's disappointing to find the points I have raised here.

https://twitter.com/zeno001/status/1277544515210002434

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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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