Sex. Not gender.

It's in black & white. In the Equality Act.

Equality monitoring

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?

Issues

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.

Purpose
The reason for collecting and processing the personal information should be given, ideally with reference to the Equality Act 2010, the GDPR and the organisation’s equality policy — although the latter should not try to override or diminish an individual’s rights under law. Making all this clear will help show that the organisation takes discrimination laws seriously and understands an individual’s GDPR and Equality Act rights: making this clear increases the chances of someone supplying the information requested.

See also: Equality? Diversity? Inclusion?

Language
Language and meaning of words are important and proper use and 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.
Listing the protected characteristics
If you want to inform the individual about their rights and why you are collecting information on different protected characteristics, it is useful to state those characteristics. Many organisations don’t or provide an incomplete list, sometimes substituting their own terms for the precise terms used in the Equality Act 2010. This can only reduce the likelihood that the individual will understand their rights and the organisation’s responsibilities.
Gender
This is by far the most common error: asking for the gender (or gender identity) instead of the protected characteristic of sex.

‘Gender identity’ and ‘gender’ are not protected characteristics under the Equality Act 2010 and are not defined in the Act.
‘Gender’ might be a synonym for sex in polite society, but it is not a synonym for sex in the Equality Act.

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.

Gender assigned at birth
‘Gender’ at birth is a meaningless concept and ‘gender’ is not ‘assigned’ (or assumed) at birth: sex is observed and recorded and is immutable.
Intersex (DSDs)
The term intersex occasionally appears in monitoring forms, despite this not being a protected characteristic nor a sex class.

Those with a Difference of Sex Development (DSD) are still considered to be of the male or female sex class and it is generally considered derogatory to those with DSDs to consider them not to be male or female.
But neither is intersex a ‘gender identity’ as if it is something that could be chosen, but is sometimes erroneously included as an option as if it meant some state between being male or female.
For further information, see here.
Other characteristics
Monitoring equality under the Equality Act requires asking about the protected characteristics, so asking about other characteristics that are not protected characteristics can only confuse.

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.

GDPR
An organisation must have established a lawful basis under the General Data Protection Regulation (GDPR) for collecting and processing all personal information and should inform the individual of that basis and what the information is going to be used for.

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.

Discrimination
If an organisation chooses not to gather data on specific protected characteristics (such as sex), it cannot have the information required to ascertain whether or not it could be discriminating on those protected characteristics in recruitment. This could be vital in an employment tribunal.

If the organisation chooses to discriminate on characteristics that are not protected characteristics under the Act, it may inadvertently indirectly discriminate on protected grounds.
PSED
If the organisation is a public authority under the Equality Act, they have additional duties under the Public Sector Equality Duties (PSED) of s.149 of the Act.

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.

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.

Undefined terms
Many terms such as ‘Gender Fluid’ and ‘Non-Binary’ are not part of the protected characteristic and are not defined in the Act.

Good practice

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:

Equality monitoring

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.

Sex

Asking for the sex of the person is simple: just ask for their sex, allowing them to not provide it if preferred:

Sex

What is your sex?

□ Female

□ Male

□ 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.

Gender reassignment

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:

Gender reassignment

Do you have the protected characteristic
of gender reassignment as defined in
Section 7 (1) of the Equality Act 2010?

□ No

□ Yes

□ Prefer not to say

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.

Other protected characteristics

There are, of course, other protected characteristics you may want to ask about but these are outside the scope of this website.