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How sex discrimination went mainstream.

Editorial Staff

It's an own goal, an unforced error, an unintended consequence. Those who have pressed for what they have termed (and forced everyone else to term) "gender equality" have ended up with previously taboo and sometimes illegal matters being pushed front and centre.

The BBC surveys customers on a wide range of subjects. For the past two or three surveys, it has included at the end of the on-line questionnaire a compulsory question: "do you identify with male, female, non-binary, other." There is no option for "decline to answer." The latest survey, on radio programmes, has moved that question, and one about age, to be the first and second questions.

It is not the only one: a survey by Shopify about its users who are, often, corporations includes a question in the same terms and, likewise, does not include a "decline to answer" option.

It follows, then, that this authoritarian attitude leaves those who have been asked to contribute their views on topics that are relevant to the user as much as to the survey promoter with a stark, binary, choice: reply or do not complete the survey.

In a world where it is, in many countries, illegal to ask a person their sex (this "gender" thing makes sense to some people but not others) in relation to, for example, job offers, this jars. Sexuality is, in many countries, something which must not be discriminated against. But that has been heavily militated against by those who demand data that they argue is needed to prove there is not discrimination. The Solicitors' Regulation Authority (they don't include the required apostrophe in their name) have put in place compulsory surveys that do not simply require that law firms and corporations in England and Wales submit "diversity statements" which include not only the sex of members of staff (i.e. male or female) but "gender" and, most surprisingly, sexuality. Many solicitors found this intrusive and, even, required them to ask of staff questions that they would not ordinarily ask.

This results in the gathering of data which, on the face of it, may be illegal.

The question of discrimination is complicated: on the one hand, the personal opinions and beliefs and even likes and dislikes of those making hiring decisions in their own businesses would seem to be an inalienable right but equally it is absolutely proper that discrimination on the basis of sex or race cannot be supported. But what about religion?

In 2008, a Muslim took a job in the kitchens at the Metropolitan Police: he then claimed discrimination because police officers eat pork and his job therefore entailed handling pork. Leaving aside the various interpretations of whether or not the ban applies only to "consuming the flesh of the pig" (as per the Koran) or one of the many increasingly restrictive interpretations developed, in particular, over the past few decades, there is a factor that is highly relevant: the HR department when he was engaged wrote to him saying that he would not be required to handle pork. His dispute was over two things: first that the Met did not give him a "guarantee" in his contract and secondly that he was moved to a police station where part of the menu included pork sausages. Many Muslim cooks comply with the "no handling" rule by wearing gloves. Hasanali Khoja, who was 62 years old when his case came before the Tribunal, lost - in part because a colleague gave evidence that she had seen him actually eating bacon and sausages. "The GBP23,000-a-year chef claimed suggestions from his bosses that he should wear gloves and use tongs left him “stressed and humiliated," said Personnel Today magazine. The question is whether an organisation would be entitled to enquire as to the religious beliefs and, where they affect the performance of his duties as the employer defines them, reject the applicant as unable to perform those duties.

Is a company entitled to refuse to engage a person who cannot adequately communicate with colleagues or customers? Does the answer change depending upon whether the applicant is disabled, has learning difficulties, does not have sufficient ability in the required language? In the UK, because of EU employment laws, healthcare providers have been obliged to recruit from within the EU which has left many e.g. nursing homes, unable to recruit educated, qualified, English-speaking staff from The Philippines: in several cases harm, even death, has come to patients because EU staff, including a German doctor, were lacking in English skills. But it's not only EU law: UK government offices have long engaged those with a poor level of English and for a while the UK Courts System was heavily compromised by the use of front-line staff who neither communicated well nor were knowledgeable about the system they were supposed to serve.

These examples are relatively clear cut: people that should not have been in certain jobs were given them, often expressly to avoid charges of discrimination.

The question of gender is different. It should not matter at all whether a person is male or female. Similarly their sexuality should be entirely irrelevant. For sure, personal characteristics may be relevant to whether a person is likely to be "a good fit" but that's behavioural and sex or gender should never be a factor when considering behavioural matters.

That is why the inclusion of "gender" questions in questionnaires is not only intrusive but it's counter-productive. What's even worse is where completing the survey is in response to a request that identifies the responder. No matter what companies say there is, somewhere, going to be data that, if someone is sufficiently determined, can be mined to obtain sensitive information about the responder.

As we have recently seen in Hong Kong, private data can be accessed by members of staff and used to the detriment of the data subject. Private intelligence reaching this newspaper's parent company is that an employee in a financial services business access the files of a policeman and published his details on the internet. It was not the first time: employees of an airline have been accused of publishing personal information of those who did not support protests.

It is improbable that all data can be kept private.

And so, the actions of those who have pushed their equality agenda are in fact leading to increased opportunity for discrimination, to a frustration by those who take the view that "gender" is irrelevant and, more particularly, the "identify with" tag is offensive (taking the view that "I am" not "I identify with") is correct if such questions are genuinely relevant, and that the opportunity for misuse of data is apparent and, even, likely.

That wasn't what they intended. But, as the old saw goes, be careful what you wish for.

The other side of the coin is, of course, that where employers are required to certify the "diversity" within their businesses, that is obviously a basis upon which they may be accused of discrimination and having to justify their engagement policies even though there have been no complaints.

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