Equality and Human Rights Commission advice on collecting sex data misrepresents the law

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A statement made by the Equality and Human Rights Commission (EHRC) about the lawfulness of requesting, gathering and collating data on individuals’ biological sex misrepresents the law, according to a legal opinion commissioned by Woman’s Place UK.

In September 2019, the Commission submitted a statement to the Scottish Government’s Sex and Gender in Data working group. Published on the Scottish Government’s website, the statement says:

“There are important human rights considerations that need to be considered when asking employees or service users to state their sex, especially in regard to people’s right to privacy under Article 8 of the ECHR and the Human Rights Act 1998. Forcing trans employees or service users to disclose their sex as assigned at birth would be a potential violation of their human rights, particularly their right to privacy and dignity under Article 8. In addition, forcing a trans person without a Gender Recognition Certificate (GRC) to disclose their legal sex would result in that person being ‘outed’ as a trans person. It is also a criminal offence under the Gender Recognition Act 2004 for a person who has acquired the information in an official capacity, to disclose information relating another person’s application for a GRC or their gender prior to grant of the GRC. In some instances, forcing people to ‘out’ themselves will also breach the Equality Act 2010.”

WPUK commissioned a legal opinion from Aidan O’Neill QC, who concluded that “these privacy rights are not absolute and individuals do not have a universal veto on what can and cannot be asked of them” and that “it will not constitute (unlawful) interference with those rights provided that the collation and/or disclosure is done in accordance with the law and separately may be said to be ‘necessary’ within the context of the proportionality test”.

Mr O’Neill’s also advised that “there is nothing in the GRA [Gender Recognition Act] to require the expunging or re-writing of past history, or to require that the previous state of affairs be expunged from the records of officialdom, or the eliminating or denial of the memories of individual who knew the person in a non-official capacity in their original birth sex.” He concluded that, “a mandatory question relative to ‘what was your sex at birth’ will not constitute an unlawful intrusion into an individual’s right to respect for their private life…if the information is required by a public authority or a private body exercising public law functions in accordance with law, and the information is properly necessary for the achievement of a legitimate aim.”

Woman’s Place UK (WPUK) have written to Rebecca Hilsenrath, CEO of the Equality and Human Rights Commission, to request the withdrawal of this advice and to ask that the Commission contacts any organisations to which it has provided similar advice on this issue.

Kiri Tunks, co-founder of Woman’s Place UK, said:

“One of WPUK’s consistent aims has been to ensure there are mechanisms in place to collect robust, high quality data on sex, which is vital if we are to measure and remedy the discrimination experienced by women on the basis of sex. We were therefore extremely concerned to note the Commission’s submission to the Scottish Government’s Sex and Gender in Data working group.

“We are heartened by the advice we have received from Aidan O’Neill QC that asking for individuals’ sex at birth is lawful if the information is required by a public authority or private body exercising a public law function, and that the information is necessary for the achievement of a legitimate aim. We have written to the Commission to request that it withdraws this statement, pending a review of its position, taking account of the relevant legal sources and that it contacts any other organisations to which it has provided similar advice on this issue, indicating that the advice is now under review.”

Alice Sullivan, Professor of Sociology at University College London, added:

“Sex is a fundamental demographic variable and a powerful determinant of a wide

range of social and economic outcomes, from offending rates and the likelihood of being a victim of sexual assault, to mortality rates and educational attainment. As a quantitative social scientist, the collection of robust, high quality data on sex is essential.

“It concerns me that we are already losing robust data on sex, with more and more public and private organisations either replacing the collection of data on sex with data on self-declared gender identity, or ceasing to collect data on sex entirely. Earlier this year, the Office for National Statistics informed me that collecting data on biological sex in the next UK census might be unlawful under ECHR Article 8. I therefore welcome this advice and look forward to the Commission withdrawing their statement.”

Notes to editors:

1. Woman’s Place UK (WPUK) is a grassroots feminist campaign group established in September 2017 by a group of women in the labour and trade union movement. Since then WPUK has organised 27 public meetings across the UK, including a one day conference in London in February 2020 attended by almost 1,000 people.
2. The legal opinion on the EHRC statement was provided to WPUK by Aidan O’Neill QC of Matrix Chambers and Ampersand Advocates.
3. The Scottish Government’s Sex and Gender in Data working group was established in September 2019, following an announcement in the Scottish Parliament by the Cabinet Secretary for Social Security and Older People on 20 June 2019.
4. The statement provided to the working group by the EHRC is published on the Scottish Government’s website.
5. WPUK provided evidence on the Scottish Government’s Census (Amendment) (Scotland) Bill in November 2018, and evidence to the UK Parliament Public Accounts Committee’s inquiry into Challenges Into Using Data Across Government in July 2019. WPUK also made a submission to the UK Statistics Authority’s Phase 1 assessment of the 2021 Censuses in the UK in May 2019.
6. Professor Alice Sullivan, who is quoted in this press release, will be giving oral evidence to the women and equalities select committee inquiry into reform of the GRA on 9 December 2020.”

For further information, please contact Kiri Tunks on contact@womansplaceuk.org

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