Thread by @Sexnotgender_

Hi @registersofscot @EHRC @EHRCChair @KishwerFalkner @trussliz @GEOgovuk

The 'Diversity Monitoring Form' in your job applications talks about 'promoting equality of opportunity and treatment and to eliminating unfair discrimination in our employment practices' and...

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... and that you 'aim to ensure that all job applicants and employees are treated fairly, with respect and without bias at all times'.

You say, "This form asks questions relating to those grounds on which the law currently prohibits discrimination."

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This would be referring to the Equality Act 2010 and its protected characteristics:

legislation.gov.uk/ukpga/2010/15/…

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However, you go on to say that it makes sense for you to base 'the questions on the relevant questions within the 2021 [sic] Census'.

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The purpose of this form is not entirely clear but 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…

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I also note the @EHRC 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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You then ask, "How would you describe your gender?", with options:

Female
Male
Non-Binary
Transgender - Female
Transgender - Male

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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, but you don't ask for that.

legislation.gov.uk/ukpga/2010/15/…

'Gender' is not a synonym for sex.

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The terms 'Non-Binary', 'Transgender - Female' and 'Transgender - Male' are not protected characteristics and are not sex classes and are not used or defined in the Act.

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As mentioned above, you state you are basing your monitoring questions on the questions in the 2021 [sic] Census. The question on sex in the 2022 Scottish census is:

"What is your sex?" with options:

Female
Male

scotlandscensus.gov.uk/2022-question-…

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Given this, it's not clear why you have chosen to add other options to the question that you labelled 'gender' in your monitoring form but which included the options for the two sexes of female and male - as correctly stated in the Census.

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Alternatively, the 2022 Census also asks the voluntary question, "Do you consider yourself to be trans, or have a trans history?". This question suggests some definitions for 'trans status':

non-binary
trans man
trans woman

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These also do not correspond with the questions you ask on your monitoring form.

Given that the questions you ask on your monitoring form correspond to neither the Census sex question nor the Census trans question, can you explain why you chose the options you did?

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However, since neither 'gender' nor 'trans' is a protected characteristic under Equality Act 2010 & since the definition you use in the entirely unrelated Census "Trans is a term used to describe people whose gender is not the same as the sex they were registered at birth"

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...is completely different to the definition used in the Equality Act 2010 for the protected characteristic of 'gender reassignment', it's difficult to understand what personal information you are trying to gather here or why.

legislation.gov.uk/ukpga/2010/15/…

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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 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.

gov.uk/personal-data-…

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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 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 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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