The Equality and Human Rights Commission (EHRC) has come in for a lot of criticism in recent years for its silence and lack of clarity on the difference between sex and ‘gender’ in terms of the protected characteristics under the Equality Act 2010. I look at their response to a Freedom of Information Act request.
In July 2020, the EHRC was asking — in the applications for a new Chair of the EHRC and for several Commissioners, no less — for the ‘gender’ of applicants:
Their job application packs also talked about ‘gender’ and ‘gender identity’:
and
So last July, they were clearly talking about ‘gender’ and ‘gender identity’ in their monitoring, even if they seemed confused about whether it was monitoring diversity or equality and even though neither of these is a protected characteristic under the Equality Act 2010. And they also failed to mention the protected characteristic of sex:
Even if by ‘gender’ they really meant the protected characteristic of sex, there is no ‘other’ sex that could be specified:
By January this year (2021), they had made some changes. In their application form for a Chief Statistician:
At least it’s now just called ‘monitoring’. However, they still list ‘gender’ as if it was a protected characteristic but at least they were now asking for the sex of applicants with only the two (correct) options of female and male.
But they were now also asking, “Is your present gender the same as the one assigned at birth?”
There is so much wrong with this:
Though they managed to correctly list it in the preamble, they don’t ask about the protected characteristic of ‘gender reassignment’, even if they might like to think they are. The protected characteristic is defined in the Act as:
So, even after I’d pointed out many issues with their forms and what they were asking, they still had failed to get these very simple questions right and in line with the very Act they are charged by the Government with monitoring and enforcing.
Since they really do know what the protected characteristics are, why can’t they get their own equality monitoring forms correct?
Given the mess of different and erroneous terms being used, I submitted a Freedom of Information Act request to the EHRC saying:
The Monitoring Information section in your job application form states:
The Equality and Human Rights Commission is committed to treating all applicants equally based on their merits regardless of age, disability, gender, gender reassignment, marital status, pregnancy, race, religion or sexual orientation.
Under the Freedom of Information Act 2000, please provide:
1. the number of applicants disaggregated by the protected characteristic of sex for the past year 2. the number of applicants disaggregated by the protected characteristic of gender for the past year 3. the number of applicants disaggregated by the protected characteristic of gender reassignment for the past year
These data can be for the last calendar year or financial year, whichever is most convenient to you.
As expected, they spotted one trap I had laid but their response, received today, was interesting:
1. The number of applicants disaggregated by the protected characteristic of sex for the past year.
Of the 431 applicants from the 2020 / 21 financial year the breakdown was as follows:
• Female: 260 • Male: 145 • Did not state: 26
2. The number of applicants disaggregated by the protected characteristic of gender for the past year.
This information is not held as we do not ask applicants to declare their gender. The monitoring section of the application form only collects data on protected characteristics.
3. The number of applicants disaggregated by the protected characteristic of gender reassignment for the past year.
400 applicants stated their present gender was the same as the one assigned at birth.
The numbers in themselves don’t matter for my purposes, but the ratio of females to males is interesting.
My first question was specifically about the sex of applicants. We know they changed their monitoring questions sometime in the past nine months, but for at least part of that time relevant to my request, they weren’t asking for the sex of applicants. So how did they arrive at the numbers they did?
My second was about ‘gender’ but given that last July (well within the period I stipulated in my request), they were definitely asking for the ‘gender’ of applicants and not their sex, it’s odd they say:
This information is not held as we do not ask applicants to declare their gender.
They clearly have asked applicants for their ‘gender’. Have they have assumed the sex of applicants from answers to the question on ‘gender’ they were asking last year? But if they did, what happened to any who said their ‘gender’ was ‘Other’? They don’t say.
It’s all a confusing mess.
We’ll return to what else they say about ‘gender’ in a moment.
How the EHRC chose to answer the third part of my request is also interesting: I asked about the protected characteristic of gender reassignment but they provided data on those who ‘stated their present gender was the same as the one assigned at birth’. That is not the information I asked for.
As I said above, it is a nonsense phrase: ‘gender’ is not assigned at birth; sex is observed at or before birth, recorded and is immutable. Besides, this bears no relationship to the protected characteristic as defined in Section 7(1) the Act:
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.
No mention of gender at birth (or any other time). No mention of gender being assigned. No mention of present gender being different. I am at a loss to understand why the EHRC has chosen to mangle the protected characteristic into something it isn’t.
Since they are still asking for information on personal characteristics that are not protected characteristics, I would hope that their new Data Protection Officer, once recruited, would sort this out once and for all. She or he might think the same question on ‘gender assigned at birth’ on their job application form for this position was a trick question, designed to identify the more astute candidates…
But I welcome their admission that they don’t (now, at least) collect data on ‘gender’ because it’s not a protected characteristic.
This is certainly a step in the right direction. What we need now is for the EHRC to issue guidance that makes it clear that sex, not gender is the protected characteristic.
They also need to step up to the mark and make it clear that gender reassignment means what the Act says it means, not some contortion that relies on equating gender with sex: notions of gender rely on demeaning, regressive stereotypical ideas of societal roles for the two sexes, concepts that should have been abandoned decades ago.
I await with bated breath.
There’s a bit more to the EHRC’s response to the third part of my request. Although they gave the number of applicants who had stated their ‘present gender was the same as the one assigned at birth’ (whatever that means), they refused to say how many of the 31 other applicants had said their present gender was ‘different to the one assigned at birth’ or did not state, or did not wish to declare because the numbers were low. This is an important reason for refusing to give more details in case an individual could be identified from this information — that could seriously impact the individual or individuals’ right to privacy. Section 40 of the FOIA enshrines this and it is right that such an exemption is used in such cases.
All the EHRC would say, after due consideration, was:
Accordingly, we can disclose that 31 of the 431 applicants either stated that their present gender was different to the one assigned at birth, did not state, or did not wish to declare.
What is odd is that the EHRC didn’t invoke Section 40 but chose section 38 instead, saying:
We consider that disclosure of information relating to someone’s gender identity in these circumstances is likely to cause concern / anxiety / mental distress to the individual(s) and accordingly this information is withheld under the section 38 Health and safety exemption.
I’m at a loss to understand why they would think this and why they chose this exemption over the more usual one provided by Section 40. However, Section 38 is a qualified exemption and is subject to a public interest test: the EHRC considered this and deemed that the public interest in maintaining the exemption outweighed the public interest in disclosing the information.
As I indicated, it was not the numbers I was really interested in but the way the EHRC chose to answer my request.
Although the EHRC has made some progress, the fact they are still asking about ‘gender assigned at birth’ and the way they have answered my request shows that they have still some way to go.