Is this legal? Barts Health NHS recruiting for a director of Operations who identifies as female

I identify as the Director of Operations for Bart’s, so I’m afraid the job is already mine. Soz.

I am also a woman who identifies as a man who identifies as a woman.

I also identify as having the necessary qualifications so trans qualified.

they can’t go wrong with me, I tick so many boxes.

I don’t disagree

(Legally, I think anything that isn't a protected characteristic is fine - you could legally say you wanted people to be Star Wars fans, believe in astrology etc, unless it could be shown that you were indirectly discriminating against people with certain protected characteristics.)

But indirect discrimination spreads the net wide:
Star Wars fans - predominantly men (probably)
Astrology fans - predominantly women (probably) etc

That's why it's dangerous to deviate from the EA-recognised protected characteristics.

For this ad, there's no problem for them to evidence that actual women are under-represented so they can encourage (actual) women applicants, as long as they don't discriminate against men.

But where is the evidence that other people who may identify as women are under-represented? They probably only have around 20 senior managers at this level. Even if trans people are 1:100 of the population, as SW claim, you're still not going to be able to demonstrate under-representation in a pool of 20. And, unless they have a trans man senior manager, why are they soliciting applications from TW, but not TM?

I snorted at this, but it’s true, isn’t it?

St Barts has a gender pay gap (like many organisations) and I imagine their aim s to correct it by recruiting more women to management.
gender-pay-gap.service.gov.uk/Employer/uqxC7uIU/2020#:~:text=Hourly%20pay%20gap&text=Their%20median%20hourly%20pay%20is,is%2017.5%25%20lower%20than%20men's.&text=This%20is%20the%20difference%20between,pay%20of%20the%20median%20woman.

This is a good thing. But the execution of the advert is really poor. It is a shame really because some poor Recruitment Adviser will probably get it in the neck and next time they look to address the pay gap, it will go in the "too hard" box.

If I may guess further, I'd guess that the "identifies as female" bit would be potentially used for positive action. This is in the EQA and is IMHO preposterous. It says if you have an underrepresented group and you end up with:

1. Candidate from underrepresented group
2. Candidate not from underrepresented group

And they are EQUALLY as good, you may pick 1 from the list above.

I can't believe this would ever happen IRL. If it did then something has either gone wrong in the recruitment process, or you have identical persons who are in fact not identical (!!!)

Or maybe not. I'm not a lawyer, so I'll shut up now.

@RoyalCorgi , you're right. It's not possible to work out what they eman. But it's not illegal to be incomprehensible, just bad practice. They will claim that "woman" is an identity. And if they get sued, that will be one interesting trial. Very interesting, indeed.

This kind of advert is legal. We used to advertise posts saying anyone with a disability who met the Job spec would be guarenteed an interview. It did not mean they would get the job.
Discrimination kicks in at the shortlisting and interview stages. This job doesn't say men are not eligible to apply.

The real problem is the use of 'identify' as a woman, this doesn't reflect the equality act which doesn't include self id. It would need to say individuals with a GRA (male and female) and women.
Whatever they put in the advert the shortlisting and interviewing must be against the job spec with no bias towards any individual.

As for the being particularly interested in applications from people who identify as female, I am pretty sure they aren't saying they want a trans woman. I think they want actual women to apply and either are scared of the reaction if the say just female or women, or they think or have been told that "identify as female" is the wording they have to use nowadays.

Also, if they refused an application from a transman, at least without a GRC, whether or not they "identified as female" that would be discrimination on the basis of gender reassignment. If the transman didn't "identify as female" it would be indirectly discriminating on the basis of gender reassignment, as they would have considered (genderologist) women who do "identify as female"

Good point.

I think legally it's quite complex. It is legally OK to give preference to one protected characteristic on the basis of eg sex, religion etc.

But when you say "identifies as female" you're not doing that. You can't say you're improving representation of trans people, because you're excluding trans men. Neither can you say you're improving representation of people of the female sex , because you're including people whose sex is male. So the legality seems dodgy to me. IANAL, of course.

(Legally, I think anything that isn't a protected characteristic is fine - you could legally say you wanted people to be Star Wars fans, believe in astrology etc, unless it could be shown that you were indirectly discriminating against people with certain protected characteristics.)

Wouldn't that just mean anyone at all.

Anyone can identify as a woman. They don't have to mean it.

Yes - my organisation is 95% women but none of the work we do is sex specific. , to improve our diversity we would need to encourage applications from men

This is permitted if it is to further the aim of increasing under represented groups in the workforce

I could identity as female for the purpose of this job, no problem.

IANAL, but I have worked in recruitment. I don't think that's illegal at all. They say they are "interested in receiving applications" from people who identify as female. If called out on it, they will simply say that "female identifiers" are under-represented at this level, and they get significantly fewer applications from "female identifiers". They'll say they need to redress the balance. All this is probably true. Therefore they are simply encouraging "female identifiers" to apply. Not illegal at all. There is no implication that "male identifiers" will be at a disadvantage in the process.

What a "female identifier" actually is, of course, is another matter. And would I work there? No. Life is short.

Jesus, that’s awful.

IF they had a goal of increasing the prevalence of transgender women in the workforce for diversity then they MAY I suppose be able to state that in the same way as they have referred to welcoming applications from black or ethnic minority people.

I SUSPECT they want a “woman” but are down the TWAW rabbit hole hence this clumsy wording. They have also not given any information as to why it is an occupational requirement for someone with a specific protected characteristic to be appointed into the role.

Its chief executive, Dan Bell, told MailOnline: 'This advert is implying in a very clear and unsubtle way that men should not bother to apply, and if they do, they are unlikely anyway to be successful. 'This is illegal and discriminatory against male applicants as set out in Government Guidance and the Equality Act

While I don't agree with that, I think that advert does imply that Man A, no GRC but claims to identify as a woman, would be appointed over Man B, no GRC, does not identify as a woman. And that is potentially discriminatory because identifying as a woman is not a protected characteristic.

to be precise it doesnt say that they want to recruit someone who identifies as female, but they are interested in receiving applications from …..

its not the first time Ive seen an advert which has said they would be interested in receiving applications from a particular group.

I feel like it's excluding men, it's excluding women, it's even excluding non-binary, and it wants someone who ''identifies'' as a woman. Very odd

In job advert context 'identifies as a woman' means women and trans-women. It isn't excluding women, it is just using woke language.