Sex. Not gender.

It’s time the EHRC did its job and set an example that showed it is serious about protecting the rights of women and girls.

I have been trying to understand the position adopted by the Equality and Human Rights Commission (EHRC) in their guidance and in their own recruitment equality monitoring forms in relation to asking for the sex of applicants and their gender reassignment status.

Although the EHRC apparently have no say in how the vacancy for their own Chair was advertised because this was a public appointment conducted by the Cabinet Office, they are to be commended for having a straightforward and accurate question on the sex of applicants in their own job application forms:

Perfect: fully inclusive and in line with the Equality Act 2010 — and biology.

I had submitted a Freedom of Information Act request to the EHRC and a number of other public authorities about their equality monitoring of job applicants. I will have more to say about this and how other public authorities deal with this question in a later post but for now, I will concentrate on the question of how the EHRC ask about the protected characteristic of gender reassignment.

I wrote to them on 12 August 2021:

I received their response last week. For ease of commentary, I will split these into the six questions and their response.

Preamble: They managed to identify the six critical questions I had (helpfully) numbered for them and they responded to each of them, but ignoring any other points I had made, despite me asking for their response them.

Thank you for your email in which you made comments and raised questions in relation to the two vacancies that we advertised on the website of Be Applied Ltd. We apologise again for the delay in providing our response.

In your email we identified six specific questions from the issues you raised. For ease of reference we have copied your questions and provided our response to each point directly below.

The first question:

1 Can you explain how you believe your equal opportunities form complies with your own guidance?

At application stage, we collate data on a range of diversity parameters to compile a full picture of diversity throughout our recruitment process in order to understand who we attract, and who is progressed through our process and understand what might be done to improve this, where necessary.

This confuses the collection of equal opportunities information with collecting ‘diversity parameters’: an equal opportunities form (such as theirs) collects information relating to equality, not diversity. I cover this in detail here, but I have suggested the following definitions:

There has to be a priority here: as much as it might be good to have a diverse and inclusive organisation (by whatever parameters are chosen), not unlawfully discriminating must be their top priority here. The EHRC even state (as I highlighted to them) that they are collecting ‘routine equal opportunities data on candidates’.

Collecting data on the diversity of applicants is not the same as ensuring your recruitment process is not unlawfully discriminating, particularly when they collect personal information on characteristics such as ‘gender’ (as they list) when ‘gender’ is not a protected characteristic.

But none of their response actually answers the question I posed: they don’t seem to be following their own guidance in terms of what they collect:

Recruitment information

The information monitoring policy and process you adopt should be set out clearly in your recruitment information.

Identifying how many people who share protected characteristics apply, get interviewed and are successful at interview can help you to ensure that you are recruiting without discriminating.

If you find any areas where there is under-representation of people with a particular protected characteristic, you might consider changing your recruitment methods. Such changes might include alterations to your advertising methods, your application processes and your interviewing methods.

If there are no gaps or obvious areas for improvement in your recruitment processes and yet the workforce is still not representative then you could consider taking ‘positive action’ measures.

On to the second question:

2. Do you believe that organisations – whether a public authority or not – can have established a lawful basis under UK GDPR for processing personal information on ‘gender’ by relying on Equality Act duties and responsibilities, when ‘gender’ is not a protected characteristic and when the options provided do not relate to any aspect of the protected characteristic of gender reassignment?

At application stage, we collate data on a range of diversity parameters to compile a full picture of diversity throughout our recruitment process in order to understand who we attract, and who is progressed through our process and understand what might be done to improve this, where necessary. These include ‘sex’ and ‘gender assigned at birth’, with the option for candidates to select same or different as assigned at birth.

Candidates can choose to decline to answer any or all of these questions and the data is held anonymously for reporting purposes only.

The UK GDPR lawful basis for collecting this information is Article 6(1)(e) ‘processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller’. There is a public interest in ensuring equal opportunities in the recruitment process.

Please see our Recruitment Privacy Notice for further information. Our webpage on Protected Characteristics may also be of assistance.

They don’t seem to have read — or understood — what I said about the phrase ‘assigned at birth’. Does it really have to be pointed out to the EHRC that ‘gender’ and ‘gender assigned at birth’ are not protected characteristics but is gender ideology gobbledegook? If these are not protected characteristics, then the lawful basis under the UK GDPR they cite of it being in the public interest to collect data to help them ensure equal opportunities in their recruitment process cannot have been made out. An organisation relying on this could be processing personal information unlawfully.

But there is a concern here that they don’t understand the UK GDPR in terms of anonymous personal data. They say the data is ‘held anonymously’ but this cannot be true at the start of their processing as it is all part of the same job application form that the applicant has filled in. They may choose to anonymise the data at some point in their processing but it is clear that their monitoring data is held at the start as fully identifiable to the job applicant. Many organisations seem to have the same misunderstanding. I asked the Information Commissioner’s Office about this in November 2019 and got this reply:

If the equality monitoring is truly anonymous, the GDPR would not apply as it is no longer considered to be personal information.

However, you will need to ensure that you have removed sufficient elements so that the individual can no longer be directly or indirectly identified. If you could use any reasonably available means on to re-identify the individual, it would not be truly anonymised and you would be processing personal information.

You would be processing personal information until the equality monitoring form becomes truly anonymous. We have some detailed guidance on anonymisation. Please note, this guidance was written under the previous legislation, however it may still be helpful.

So the EHRC are clearly wrong in stating that the information is held anonymously: it is at least in part, held as identifiable information, up to the point it meets the ICO’s criteria for being unable to re-identify the individual.

In the Privacy notice for job candidates on the page they cite, they say they hold the following personal information:

The information you have provided on our application form, including name, title, address, telephone number, personal email address, date of birth, gender, employment history, qualifications.

This says ‘gender’ but no mention of sex or gender reassignment data.

The EHRC’s response to my question is wholly inadequate.

On to the third question:

3. What factors did you take into account when deciding to ask a question on “GENDER AT PRESENT” in your own recruitment monitoring? What equality impact assessment was carried out?

These forms of asking the question are reflective of the Government Statistical Service Harmonised Standards for asking for Gender Identity and Sex. They are a form of questions that are used in The Census 2021 and have been through significant cognitive testing by the Office for National Statistics. By identifying those whose gender identity is different to their sex they enable us to determine the population who has, is or is proposing to undergo Gender reassignment. There is no requirement under the definition of the gender reassignment for specific attribute to be changed. Therefore this question allows us to monitor gender reassignment.

Citing the Office for National Statistics and the Census 2021 is, frankly, bizarre.

The Government Statistical Service Gender identity data harmonised standard they cite states that the standard for ‘gender’ is needed for ‘policy development, service planning and provision’. Nothing at all about the best way to collect data on protected characteristics under the Equality Act to ensure you are not unlawfully discriminating in your recruitment.

The 2021 Census for England and Wales asked:

3. What is your sex?

27. Is the gender you identify with the same as your sex registered at birth?

Although the sex question is the same as the question the EHRC asks, the ‘gender’ one is different in fundamental ways: the Census is not asking questions about protected characteristics; it at least uses ‘sex registered at birth’ and not the gender ideological ‘gender assigned at birth’.

In general terms, the Office for National Statistics say they are ‘responsible for collecting and publishing statistics related to the economy, population and society at national, regional and local levels’ and they also conduct the census in England and Wales every 10 years. None of this concerns the protected characteristics under the Equality Act 2010.

It is the Equality and Human Rights Commission themselves who have statutory responsibility to ‘challenge discrimination, promote equality of opportunity and protect human rights’, not the ONS, so I am at a loss to understand why they would seek to rely on someone else’s (different) definitions especially when they have already provided authoritative definitions.

The EHRC’s Equality Act 2010 Code of Practice, Employment Statutory Code of Practice is a statutory code of practice.

This states:

Sex
What the Act says

2.62 Sex is a protected characteristic and refers to a male or female of any age. In relation to a group of people it refers to either men and/or boys, or women and/or girls.

2.63 A comparator for the purposes of showing sex discrimination will be a person of the opposite sex. Sex does not include gender reassignment (see paragraph 2.21) or sexual orientation (see paragraph 2.64).

This cites ss.11(a) & (b), 212(1) of the Equality Act.

It is somewhat perverse to use definitions from the ONS created for an entirely different purpose and which are not relevant to the protected characteristics under the Equality Act and ignore the definitions given in their own Employment Statutory Code of Practice of the EHRC and the Equality Act itself.

I have no doubt the ONS will have conducted ‘cognitive testing’ on the question about ‘gender identity’, but that is irrelevant here and the EHRC failed to address my point about an Equality Impact Assessment.

4. What factors did you take into account when deciding not to ask a question on the protected characteristic of gender reassignment? What equality impact assessment was carried out?

The questions used do ask a question on gender reassignment in a standardised form used for national statistics see (question 3)

They provided no evidence for assuming a question on ‘gender at present’ was the same as or different to the person’s ‘gender assigned at birth’ was equivalent to a question on the protected characteristic of gender reassignment. For comparison, this is the definition in the Equality Act:

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.

While this could do with some much-needed clarity, it says nothing about whether someone believes their ‘gender’ is different to one ‘assigned at birth’.

Oddly, the EHRC did not answer the question about any Equality Impact Assessment carried out. I can only assume none has been done.

5. Do you acknowledge the points made by Akua Reindorf and in particular her recommendation 18 that the protected characteristics should be accurately stated for the reasons she gives? Will you include this in your guidance on equality monitoring and equality policies, etc?

It would require a considerable amount of research for us to answer this question as we are not familiar with the work of Akua Reindorf.

This is quite astounding. Even if the EHRC have not had their finger on the pulse of recent events that concerned matters directly within their remit, they were informed of it a few weeks ago in an open letter signed by more than 200 academics: Academics write to the EHRC — Sex Matters.

But I wasn’t expecting a comprehensive review of Reindorf’s career and cases; I was asking particularly about what she said in recommendation 18 about the clarity and accuracy that is needed in referring to the protected characteristics under the Act. It’s disappointing that the EHRC has avoided even commenting on that fundamental need.

6. There are many aspects of your guidance on the PSED and UK GDPR that would also apply to organisations that are not public authorities and who therefore do not have a PSED but who still collect equality monitoring personal information. Have you published similar UK GDPR guidance for organisations or will you consider doing so?

The Information Commissioners Office (ICO) is responsible for issuing guidance on the processing of personal data. If we identify gaps in our equalities guidance, we will consider how best to address those gaps in accordance with our current strategic priorities.

Another response that doesn’t address the issues I raised. The EHRC has already provided guidance for public authorities on this: it clearly contains much that also applies to organisations that are not public authorities so there clearly is a gap and one, I suggest, needs to be filled.

Conclusion

I have been trying to get the EHRC to see that their guidance is wrong, lacking, or incomplete and have invited them to consider the issues and respond to them and hopefully see the need to address these issues.

They have resisted all my attempts so far.

I really don’t see that this is at all difficult and I’ve made suggestions on how straightforward it can be. But my ever-increasing list of organisations that just don’t seem to understand the Equality Act, why they are collecting equality information on job applicants or what their responsibilities under the UK GDPR are, shows there clearly is a need for the EHRC to step in and provide that guidance. That is their job, after all.

It’s good to see that the EHRC will finally be addressing the issue of single-sex spaces and services, but there are many other areas where the rights of women are being eroded — sometimes to the point of erasure. The conflation of ‘gender’ with sex is a huge part of that erasure.

I also welcome the EHRC’s commitment — revealed today by MurrayBlackburnMackenzie — to provide new ‘guidance for public authorities on the factors they need to consider when collecting data on sex and trans status so that they are compliant with equality and human rights law’.

I can only hope that this new guidance will fill the chasm the EHRC has allowed to develop in recent years by those pushing their own ideological interpretation of the protected characteristics rather than what the law actually says.

It’s time the EHRC did its job and set an example that showed they are serious about protecting the rights of women and girls.