Equalities Monitoring Forms, 'Gender Identity', & the Law

[dumpling23]

Wise women of Mumsnet - please help me!

I am involved in the running of an organisation which has an equalities monitoring form. Our current monitoring form is entirely optional and includes the question:
What is your gender?
The current choices are:
Female/male/prefer not to disclose
As our organisation has an unbalanced membership between men and women, especially in more senior categories, the sex information is useful to us.
A staff member is pushing for us to include a fourth option for people who ‘sit outside the gender binary’ and might feel frustrated that they are being forced into a box that don’t fit. Well, there’s plenty I have to say about the possibility of any human being ever sitting outside the sex binary, but this being work - this is definitely not the place for me to present those arguments, and I need to find another way to push back.
I think a better (and certainly, for me, safer) way forward would be to construct an argument based upon what the law permits. I am not convinced that GDPR permits organisations to collect and store personal data around a protected characteristic when a) the category is not properly defined in law and b) the organisation doesn’t know what it wants the information for. But I am not a legal expert, and perhaps I am wrong.
Can anybody help? Does anyone know? Is there any good quality information out there concerning the legal basis (or not) on which organisations are collecting data around gender identity beliefs. If so, can you point me towards it. Thank you.

You might want to look at Sex Matters (say the Pronoun Guide or their response to the FCA consultation) for some advice.

sex-matters.org/posts/category/publications/

A robust approach would be to ask for gender identity (probably with a write in as well as tick boxes) and then sex as recorded at birth. IIRC just asking for sex means that some trans people will put down their gender identity instead or skip the question, but the vast majority are fine with acknowledging their sex if their gender is also recorded. You could also consider a tick box “do you consider yourself to be trans?” question. In theory it’s redundant, in practice it might be telling.

This way you are likely to get the most accurate information that aligns with protected characteristics and allows you to look at how identities within the categories has an impact, (should there be enough respondents). It also respect both those who find gender identity important to their sense of self and those who do not.

I don’t think categories have to be defined in law for it to be legitimate to record them. Race categories aren’t defined in law but it’s fine to record them so you can look at how particular identities are impacted.

The other resource site that I couldn't find earlier:

gcritical.org/introduction/

You could stick with the GDPR reasoning. Why collect that data? What is being done with that data? Why is it required? Is it a legitimate purpose?

Remind them that they are straying into the Special Category of data, does their requirement for that data fit any of the necessary 10 conditions; have they done an impact assessment on changing the standard terminology?

ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/lawful-basis-for-processing/special-category-data/

Basically, scare them silly!