My thoughts on challenging Equality, Diversity and Inclusion Surveys that do not collect data on sex.

At the meeting on 13th May 2021 I agreed to set down my thoughts about how best to challenge these surveys. I hope you find this helpful as I will suggest ways of framing a letter to your organisation. I had some success with my regulator the Bar Standards Board. Initially their survey question for ‘sex’ had the options ‘male’, ‘female’ ‘prefer not to say’ and ‘I prefer another term’.

I took issue with the latter and pointed out that the ONS (on whom the BSB apparently relied in coming up with this formulation) had conceded they had acted unlawfully in the recent Fair Play for Women judicial review hearing in March 2021. Here, the ONS had attempted to permit ‘self ID’ of sex for census purposes by allowing people to allow on information recorded on a driving licence – which could be amended on simple written request. The BSB took legal advice and agreed to remove ‘I prefer another term’. This was great news, but disappointing to note that the solicitors’ regulator is still sticking with ‘I prefer another term’.

So what did I say to the BSB and what do I think you should say to your organisation? It will be different depending on whether or not your organisation is a ‘public authority’ or carries out ‘public duties’ – see below for definitions.

DISCLAIMER – I am not a specialist lawyer in this field so please do NOT treat this as definitive advice but hopefully a helpful starting point.

  • I pointed out that ‘strong feelings’ was not an acceptable reason to fail to record sex accurately for equality, diversity and inclusion policies.
  • If relying on ‘strong feelings’ – whose strong feelings? Who has been consulted about this?
  • The protected characteristics are set out in the Equality Act 2010. ‘Sex’ and ‘gender re-assignment’ are protected, ‘gender’ or ‘gender identity’ are not. A failure to collect accurate data about the characteristics protected by statute means an organisation is not able to properly assess its own policies and guard against direct or indirect discrimination
  • Therefore, recording information about ‘gender’ or ‘gender identity’ rather than ‘sex’ is potentially a breach of the public sector equality duty, pursuant to section 149 of the Equality Act. Equality monitoring needs to be substantive, not performative. But this duty applies only to ‘public’ bodies or those that exercise ‘public functions’ so may not apply to your organisation – the BSB is a ‘quasi – public body’ and could be subject to judicial review.
  • Also point out that the ONS backed down recently – I think its important to make it clear that there could be legal consequences if ‘sex’ is not recorded accurately and your organisation could be susceptible to judicial review – i.e. is a public body or carries out public functions.
  • Ask them to explain what the purpose/ benefit is of recording ‘gender’ rather than ‘sex’ and what efforts they have made to show compliance with section 149, or if not a public body, how can they reassure you that they are able to monitor their own policies effectively.
  • Ask for a response within 28 days
  • Let me know what they say!

We would like to gather as much information as possible about organisations which are removing ‘sex’ from their EDI questions or which are conflating it with ‘gender’ or ‘gender’ identity’.

Examples of public authorities and organisations with ‘public functions’

Public authorities

  • government departments and ministers
  • the armed forces
  • the NHS
  • local authorities
  • the police
  • educational bodies like schools and universities
  • the information commissioner.

Organisations carrying out ‘public functions’

  • privatised utilities like water companies, British Gas and Network Rail
  • some organisations who have been subcontracted to carry out a public function like a private security company running a prison
  • some housing associations when carrying out some of its functions as a social landlord
  • private care homes providing care on behalf of the local authority
  • private hospitals providing care on behalf of the NHS.

If its not clear if your organisation falls within these definitions, then it would have to be decided by a court which would look at whether the organisation is:

  • publicly funded
  • supervised by a state regulatory body
  • exercising powers given to it by the law
  • taking the place of central or local government
  • providing a public service
  • acting in the public interest
  • carrying out coercive powers devolved from the state.

2 thoughts on “My thoughts on challenging Equality, Diversity and Inclusion Surveys that do not collect data on sex.”

  1. As I understand it, any organisation must have established a lawful basis under the GDPR to collect and process personal information. Doing that for protected characteristic is easy if the data are used to check for unlawful discrimination. However, that only applies to protected characteristics so collecting personal information on, say, ‘gender’ or ‘gender identity’ that are not protected characteristics, establishing that lawful basis won’t be so easy. However, I suspect that many organisations just never think about it and a prompt to get them to declare what lawful basis they are relying on might force them to think about why they are collecting and processing those data.

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