Thread by @Sexnotgender_

@Baroness_Nichol Hi @ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch

The 'Diversity Monitoring' section of your job application says you are "committed to equality of opportunity regardless of..." followed by a list of characteristics.

cc @Baroness_Nicholson 1/31

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch As it is a part of your recruitment process, I assume its purpose is to help you ensure that you are recruiting without unlawfully discriminating under the Equality Act 2010, which is not the same as 'diversity monitoring' or 'inclusion':

2/31 sexnotgender.info/equality-diver…

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch I also note the EHRC guidance on this:

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

3/31 equalityhumanrights.com/sites/default/…

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch 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.

4/31 legislation.gov.uk/ukpga/2010/15/…

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch The characteristics you list are mostly the protected characteristics under the Equality Act 2010, except that 'gender identity and expression' are not protected characteristics and are not defined or used in the Act.

5/31 legislation.gov.uk/ukpga/2010/15/…

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch I note that the Government has stated in guidance that demographics such as 'gender' and 'gender identity' are not protected characteristics:

6/31 gov.uk/government/pub…

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch You then ask for the applicant's 'Legal Gender' as a mandatory question with options:

Female
Male 7/31

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch 'Legal gender' is not a protected characteristic under the Equality Act 2010 and is not defined in the Act. I am not aware of any legal definition for 'Legal Gender'.

8/31 legislation.gov.uk/ukpga/2010/15/…

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch Sex is a protected characteristic (as you listed) and the two possible options for sex are 'Female' and 'Male' as defined in the Act and consistent with biology.

9/31 legislation.gov.uk/ukpga/2010/15/…

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch 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. 10/31

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch 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. 11/31

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch Although you state you include a ‘prefer not to say’ option, there is no such option for 'legal gender'. However, 'prefer to to say' is not the same as providing an option (eg 'None') for an applicant who does not have a 'legal gender'. 12/31

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch This could indicate an institutional bias towards an ideology to which not everyone subscribes and this may impinge on their protected beliefs under the Equality Act: Forstater v CGD

13/31assets.publishing.service.gov.uk/media/60c1cce1…

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch You then ask for the applicant's 'Gender Identity' as a mandatory question with options:

Female
Male
Non Binary
Not Listed Above
Prefer not to say 14/31

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch 'Gender identity' is not a protected characteristic under the Equality Act 2010 and is not defined in the Act.

15/31 legislation.gov.uk/ukpga/2010/15/…

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch Again, I note that the Government has stated in guidance that demographics such as 'gender identity' are not protected characteristics:

16/31 gov.uk/government/pub…

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch You provide no option for an applicant that doesn't have a 'gender identity', again indicating a possible institutional ideological bias. 17/31

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch '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. 18/31

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch Asking about a personal characteristic such as 'legal gender' or 'gender identity' 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. 19/31

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch 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. 'Legal Gender' and 'Gender identity' do not appear on that list, but sex does.

20/31 gov.uk/personal-data-…

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch 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' may cause issues in processing the information lawfully.

21/31 equalityhumanrights.com/guidance/publi…

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch 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. 22/31

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch 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. 23/31

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch 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:

24/31 cloisters.com/insights/reind…

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch 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.

25/31sex-matters.org/posts/updates/…

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch You may also like to read their guidance on data collection about sex and transgender identity

Data matters

26/31sex-matters.org/posts/updates/…

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch 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. 27/31

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch Nor is it clear how you can have had due regard to the other duties given the data you have collected and not collected. 28/31

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch 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. 29/31

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch I raised these issues with you in 2020 but I received no response from you:

30/31

https://twitter.com/Sexnotgender_/status/1338912910265954305

@Baroness_Nichol @Ofcom @EHRC @EHRCChair @KishwerFalkner @KemiBadenoch Will you undertake to correct these errors and to review all your other policies, documents, reports, etc to ensure compliance?

I hope that you will respond this time.



@threadreaderapp unroll 31/31sexnotgender.info/list