On Twitter, I have highlighted the equality monitoring forms used in the recruitment process of a large number of organisations, including government departments, public authorities, charities, voluntary organisations and companies:
These usually, at a minimum, mis-state the protected characteristic of sex by asking for the ‘gender’ of the job applicant. The term ‘gender’ is not defined or used in the Equality Act 2010.
At worst, they conflate and confuse different characteristics, asking for ‘gender’, ‘gender identity’ and include the options male and female as if they were asking for the sex of the applicant but then including other terms such as ‘transgender’, ‘intersex’, ‘non-binary’ and ‘gender-fluid’.
Additionally, although I have mainly looked at equality monitoring in the recruitment process (because that is usually easily available to the public), it could well be that the same form is used in other situations, perhaps including the monitoring of their staff. It’s not clear how confusing different protected characteristics would enable an organisation to check whether or not they might be discriminating against those who have a protected characteristic.
See also: Equality? Diversity? Inclusion?
From looking at these monitoring forms, some patterns have emerged. These can be categorised into a number of key areas and are discussed below along with the problems they can cause.
The options provided as answers to such a question sometimes include Female and Male, but they frequently add other terms such as ‘gender-fluid’, ‘non-binary’, intersex (see below), transgender or transsexual. None of these additional terms is a protected characteristic and these are not valid options for a question on the protected characteristic of sex.
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.
If an organisation chooses to discriminate — deliberately or otherwise — on characteristics that are not protected characteristics under the Act, it may inadvertently indirectly discriminate on protected grounds.
This can be done either at the top of the form or in their privacy policy, which should be linked to.
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 — information without a lawful basis.
Essentially, these duties are:
(1) A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
If it is collecting inaccurate, irrelevant or inappropriate information, it’s not clear how it could meet these duties or how it could have met it in the past given the data could have been corrupted by those who didn’t provide their sex or gave incorrect responses to ambiguous, irrelevant or misleading questions.
So, what makes good practice?
While we await definitive guidance from the Equality and Human Rights Commission and the Information Commissioner’s Office on how to monitor equality appropriately and lawfully, the following might help — but remember to always take professional advice before relying on or using any information given here.
Collecting monitoring information doesn’t need to be complicated: there is no need to use terms that everyone understands differently or terms that are not defined in law. Keep it simple and just ask the protected characteristics as defined in the Equality Act.
The following is suggested as introductory text:
We want to meet the aims and commitments set out in our Equality Policy. As part of that and to help us fulfil our duties under the Equality Act 2010, including ensuring that we don’t unlawfully discriminate when recruiting, we ask you to fill in this monitoring form.
We do not use this information in any way to select one applicant over another and we process this information in line with our Privacy Policy.
The protected characteristic of most interest here is the protected characteristic of sex. As this is frequently conflated with asking about the protected characteristic of gender reassignment, we also suggest below a simple and straightforward way of asking about that characteristic.
Asking for the sex of the person is simple: just ask for their sex, allowing them to not provide it if preferred:
What is your sex?
â–¡ Female
â–¡ Male
â–¡ Prefer not to say
There is no need to make it any more complicated or to substitute your own terms or include any other terms. Everyone is either male and female and they should be in no doubt which they are.
Asking about the protected characteristic of gender reassignment is not as simple as there is no objective definition given in the Act. We would suggest following the example as used by the Social Market Foundation:
Do you have the protected characteristic of gender reassignment as defined in Section 7 (1) of the Equality Act 2010?
â–¡ No
â–¡ Yes
If preferred, instead of linking to the section of the Act, the text of Section 7(1) can be quoted:
7 Gender reassignment (1) A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.
7 Gender reassignment
(1) A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.
There are, of course, other protected characteristics you may want to ask about but these are outside the scope of this website.