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Gender or sex #69

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govuk-design-system opened this issue Jan 12, 2018 · 5 comments

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@govuk-design-system
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commented Jan 12, 2018

Use this issue to discuss the gender or sex pattern in the GOV.UK Design System.

What

When and how to ask about people's gender and sex. This issue is for updating to the current version in the GOV.UK Service Manual

Why

Anything else

@Zeno001

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commented Jul 25, 2018

Unfortunately, I can't access the draft guidance so these are my comments on the current guidance - I hope they are useful.

There is certainly confusion in the minds of the general public about the meaning of the terms 'sex' and 'gender' (they generally think they mean the same thing) but the Equality Act 2010 ("the Act") gives 'sex' as one of the protected characteristics. Gender is not a protected characteristic nor is the term even defined.

The Act at s.11 states, inter alia:

"Sex

In relation to the protected characteristic of sex—

(a)a reference to a person who has a particular protected characteristic is a reference to a man or to a woman;"

The Act at s.212 states, inter alia:

"“man” means a male of any age;"

and

"“woman” means a female of any age."

You say:

"If you do need to ask, use ‘sex’ when you need biological data (for example, if you’re providing a medical service). In all other cases, use ‘gender’."

I think the default should be to ask for 'sex' and it's not at all clear under what circumstances anyone would be asked for their gender. If it is information for an equality impact assessment that is being sought, then it has to be 'sex' that is asked for.

However, where the sex of the individual does need to be known, I would suggest the form advocated by NHS England be used. Their document, Accessible Information Standard Review: Diversity Monitoring Questions, asks 'What is your sex?', giving the options 'Male', 'Female', 'Intersex' and 'Prefer not to say'. This covers all possible cases.

You say:

"If you have to ask about gender, you should:

list the fields in alphabetical order
do research to test that this works for your users"

Again, it's not clear when this information would be required - it's certainly nothing to do with any Public Sector Equality Duty - but there are many different views on what labels to give genders and even asking for it and providing a list is fraught with difficulties. I think there would need to be a clear identified specific purpose for collecting and lawfully processing this personal information to be compliant with the GDPR, etc.

You say:

"Don’t use titles to guess gender
You shouldn’t guess someone’s gender based on a title because:

some titles aren’t gendered (for example Dr, Rev, Major)"

I think this conflates sex with gender and I suggest that it is sex that shouldn't be assumed from a name or title.

"titles can be changed by deed poll to one that’s different from a person’s gender or sex"

I don't understand this: names can be changed by Deed Poll (in England and Wales but not in Scotland and I'm not sure about Northern Ireland), but surely titles can't be changed?

I would also suggest you might like to give guidance on titles: there is an endless list of possibilities but please consider not making any title a required field - I prefer not to use one at all and I don't think there are any situations where it is necessary. It is convenient to sometimes refer to people as, say, Mrs Smith, but I suggest that if a title is not given it should be easy enough to use the individual's name.

@nickcolley nickcolley changed the title Gender and sex Gender or sex Oct 15, 2018

@chrisduffield

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commented Mar 5, 2019

I have to agree with Zeno001, why would you ask for gender? It is useless for any official statistical purposes which would be looking at the protected characteristics under the equality act.

Also why have a link to draft guidance if clicking on it doesn't allow you to read it? If you are going to ask for opinions then allow them to be informed opinions.

@Zeno001

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commented Mar 5, 2019

Thanks, Chris. A primary rule of any data gathering is ensuring you understand why it is being collected. Article 5(1)(b) of the GDPR requires that personal data shall be:

"collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes"

Since there doesn't seem to be any 'official' or legal definition of the term 'gender', it would seem to be difficult to construct a case for gathering personal data on it. Unless and until someone can come up with a cogent definition of the term and a legitimate use for the data, it seems to me all the Government should be asking for is the sex of the person. Even then, there are probably limited occasions where this is relevant.

@chrisduffield

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commented Mar 5, 2019

Also can you give informed consent if the definition of gender is ambiguous?

@Zeno001

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commented Mar 5, 2019

That's a very good point, Chris.

Are the authors here able to provide any information on any of this?

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