FOI Network Rail and Stonewall

I also wrote to Network Rail as follows:
Dr Mr Haines
I have had cause to look at your diversity and inclusion policy since you recently decided to remove the advertising "I heart JK Rowling" by Standing for Women on your digital board at Waverley Station, Edinburgh.

Looking at your "Everyone Matters" strategy I do not see how you can monitor sex discrimination under the Equality Act 2010. No where in the document is sex defined and the section under gender pay gap refers to "women", yet you do not define what a woman is in your monitoring. In your "Part 8 Appendix - terminology matters" you do however have several definitions such as "gender-neutral", "cisgender", "gender reassignment", "non-binary gender". You also mention "gender identity" under the LGBT+ terminology. That is a lot of words to be inclusive of peoples personalities, but excludes women! You should include "sex" (as a protected characteristic in your terminology), that is a man (adult human man) or woman (adult human female).

You rightly list the nine protected characteristics of the Equality Act 2010:
"Protected characteristics: These are the grounds upon which discrimination is unlawful. The characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation." Yet I do not understand how you can monitor sex discrimination as under monitoring you say:

"Monitoring: gathering data about everyone’s ‘protected characteristics’ to check whether groups of people are fairly represented and being treated equally. For example, monitoring the representation of women, or the representation of disabled people, in the workforce or at senior levels within organisations to identify trends in recruitment or promotion."

But you are not monitoring the representation of women under the protected characteristic of sex because as I said above nowhere in your document do you define a woman to mean adult human female as it is in the Equality Act 2010. Men who may have worked up the ranks in your organisation then decide to undergo gender reassignment at a high managerial level would according to your policy be included in women's pay average, thus inflating the average pay of women.

It seems to me that in order to be inclusive you are actually being exclusionary to women. You are failing to adhere to the Equality Act 2010 because you cannot measure something you do not define.

I would be very interested in your views on this matter and how this oversight has arisen.
Kind regards,
First reply:
Thank you for your email to our chief executive, Andrew Haines, about our diversity and inclusion policy.

I’m sorry to see you’re concerned about our processes for monitoring discrimination on the basis of sex. As an inclusive and diverse company we have a zero tolerance approach to discrimination of any kind and we’ve forwarded your letter to out diversity and inclusion team so that they can review your concerns. We will be in touch shortly.

Follow up:
Thank you for your email to our chief executive, Andrew Haines, about our Everyone Matters strategy. I’m responding as I’m part of Andrew’s correspondence team.

I’m sorry to see that you’re concerned about our approach to diversity and inclusion. We want to be an organisation where all our people are treated equally and feel respected and valued.

As you mention, we recognise sex as being a protected characteristic under the Equality Act 2010. We monitor reported sex discrimination based on an employee’s recorded or given sex. Therefore, if an employee reports that they have faced discrimination because of their sex, this will form the basis of their complaint. All reports of sex discrimination are taken seriously and thoroughly investigated.

Thank you once again for your email.
Yours sincerely,

So sex discrimination is monitored on the sex a person gives at network rail so is meaningless for monitoring.

I should have refreshed.

boatyardblues I've written a summary in the thread after that post.

Via Whatdoytheyknow! Duh, most important bit. 🤦‍♀️

*this picture, on the right.

Are Pride advertisements and Stonewall rainbows "of a political nature calling for the support of a particular viewpoint"?

If this debate has "sides" or "viewpoints" they are certainly making theirs clear.

Sorry about repeated lines in one of the paragraphs, was juggling other things in between writing this and didn't proof read it properly.

Thanks @OldCrone I think you are right, it's definitely not for commercial reasons but for dissemination, which is similar to news reporting.

So I asked about numbers of people who complained
According to NR, they received 158 complaints as of 19 August. None of their complaints were through the official customer relations department and includes Twitter contact where Network Rail provided a response. It does not include all the Twitter converstions. I, obviously, did not make my request clear enough or maybe they are being obtuse - I wanted to know how many complaints they received before the poster was taken down. I will contact to ask them to clarify that question.

I also asked what the decision making process was to take the poster down

This was very interesting because there was a chain of emails, with the names and positions withheld. All emails sent on 28th July.

The first email is from the Times reporter who quotes Kelly-Jay talking about the ad in a video and wants to ask Scotrail if they have any comments and any complaints about the ad.

The second email is an internal one from a NR employee to 3 others talking about the Times Request. It has the subject line of JK Rowling / trans rights advertisement Waverley. They "dont think we want to be in this be in this debate". They are going to go back to the reporter and say there's been no public complaints and that they should contact JCDecaus about it. They ask the question if it need to ask JCD to kill it because it might breach their neutrality.

The third email says NR have a strict policy and "I guess this did't breach the policy? But dodgy ground nonetheless." It "might not strictly break the rules" and "could be seen as innocent support" but that "knowing the background its not wise." The email goes on to say that "its not our debate" and then it's a little bit about how this got through and what can be done about future ads.

The fourth email says "we don't want to look to be supporting anything either way". They've cc'ed someone who can advise whether it breaches their policy.

The final email (sounds like someone in charge!) says that they've just been made aware of the poster and to take . poster down. They've been made aware of the poster This email says because of the media debate surrounding JKR and her position on gender politics it breaches article 5 of the Code of Acceptance and it needs to be taken down.

I asked them about the Code of Acceptance policy for ads
Article 5 says: "It is of a political nature calling for the support of a particular viewpoint, policy or action or attacking a member or policies of any legislative, central or local government authority.

There you have it.

I am wondering if it is false for NR/ Danielle Stratton to state that misgendering (sic) a 'Transexual' (description for Trans in the Act) with pronouns that correspond with their biological sex is a crime according to the EA2010. There would be a difference to stating they'd like people to mollycoddle someone's notions and be kind with saying it is breaking the law and therefore they have to stop or face penalty on that basis.

To me, that would mean if you simply see a bloke in front of you, you don't have be compelled to play a game and lie about it. Of course, many may deem it to be easier to go along with it. Maybe for self-preservation if you anticipate a backlash against your livelihood or personal safety. Coercion.

As far as I can see, the thing that shouldn't happen is a person who are privy to the personal information of someone with a Gender Reassignment characteristic (Transexuals' according to the Act) in an official capacity, shouldn't share that information and make it public, so to speak. If the source of their knowledge is private.

Please correct me if I am wrong about misgendering (sic) being a crime under the EA2010. If I am not, then these people are not just ignorant of the law, they are actively lying about it. To the public and to coerce their employees with falsehoods. If that is the case, I think that should be illegal!

WaverleyStation
I've had a look at some of their other responses on whatdotheyknow.com, and they seem to put that copyright clause on all of them. I would have thought putting the information on here is more like 'news reporting' than 'commercial publication', but I am not a lawyer and I have no idea how copyright law works, so I understand why you might be unsure whether you should put the information on here.

But if you'd made the request via whatdotheyknow they would have given the same response which would have gone straight to a public website.

OldCrone. Yes, exactly that.

What an utterly crap response

the BBC are late in replying to a similar request!

www.whatdotheyknow.com/request/the_impact_of_the_bbc_being_a_st?utm_campaign=alaveteli-experiments-87&utm_content=sidebar_similar_requests&utm_medium=link&utm_source=whatdotheyknow

EA huh? They haven’t read it have they? Must be being advised by someone...

Name changed.

I put in a request for FOI around the poster re:

*Numbers of people who complained
*what the decision making process was
*Advertising code of acceptance

I've had information back but I'm a little worried about sharing it online because of all the legal bumph at the end of the 3 documents.

NR's response is evidence that their policy completely fails to protect the characteristic of "sex" - they have set about to protect the non EA protected "gender" at the expense of protecting sex.

The 2 - gender & sex - are in conflict.

Clearly NR don't have a fucking clue what they are doing.

I look forward to Whites reply very much.

Network Rail have little knowledge of customer requirements of any kind so their response does not surprise me.

Well done to the person who asked Network Rail the original questions. Whilst I am a man, I don't want women's spaces to be lost in reality or practice.

I thought there was a protected characteristic called “pregnancy and maternity”. Network rail have “pregnancy and maternity/paternity”

Then the sex protected characteristic is like this in the Act:
*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;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same sex.*

network rail have “sex: women, men and transgender people;”

I've just noticed that in the Equality and Diversity policy they link to, they list the correct protected characteristics on the last page, but elsewhere in the document they have 'gender' instead of 'sex'.

www.networkrail.co.uk/wp-content/uploads/2020/04/Equality-diversity-and-inclusion-policy.pdf

Thing is, if no-one has actually checked the text of the act and are then prioritising gender rather than sex in practical decisions, it's no surprise that organisations will be misapplying the law and being quite indignant when challenged. Especially if they've shelled out a load of cash to be trained to get it right...

Oh dear...who wants to tell them they are wrong...

I notice they repeat that false claim “under the Equality Act 2010 gender and gender reassignment are protected characteristics” three times.

They have obviously never bothered to read the text of the Equality Act, which is fairly short and simple. Why would you not even bother to check when a lobby group tells you something that’s disputed?