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

[apintortwo]

Could someone explain the legal aspects of this in relation to discrimination legislation?

uk.jooble.org/jdp/8593368761237886898/Director-of-Operations-%7C-Barts-Health-NHS-Trust-London?utm_campaign=google_jobs_apply&utm_source=google_jobs_apply&utm_medium=organic

Apologies for the DM article below

www.dailymail.co.uk/health/article-11122945/Fury-sexist-NHS-job-ad-says-preferably-identifies-woman.html

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.

@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.

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

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 (!!!)

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.

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

(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 don’t disagree

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

The real problem is the use of 'identify' as a woman, this doesn't reflect the equality act which doesn't include self id

This is exactly the problem. It doesn't exactly match either the protected characteristic of sex (because it includes some males) or the protected characteristic of gender reassignment (because it excludes trans men).

To put it another way, you're excluding some females (trans men) and some males (the ones who aren't trans), which isn't something allowed for in the Equality Act.

Incidentally, it's also not clear to me the basis on which they are asking for applications for people who identify as women in the first place. Even if they'd got the terminology right, and just said "women", we still have the problem of whether they have a legitimate reason for only opening it to women. A director of operations isn't like a firefighter, for example, where you might reasonably try and rectify an obvious imbalance.

Agree totally with your first 2 paras. They have got themselves in a total muddle.

In fairness, though, they are not saying they are only opening it to women. They are just saying they welcome particularly applications from women. My understanding is that that is fine, as long as you can evidence that the group you are encouraging to apply is under-represented.

In theory it is covered by s159 of the Equality Act on positive action measures. This allows an employer to encourage applications from an under-represented protected characteristic.

The problem is that those "who identify as female" is not a protected characteristic and, as already said, it's confusing language as we don't know if they mean women, or men who identify as women.

If they meant women, they should just say it. It's a defined protected characteristic and, as per para 36 in the For Women Scotland case, provisions in favour of women by definition exclude those who are biologically male.

The other relevant protected characteristic is gender reassignment, which they could have legitimately chosen, but again it needed to be clearly specified. And reassignment is the common factor here, not the sex of the transsexual person, so the employer can't even restrict it to just transwomen or transmen, it has to be both.

But what they definitely can't do is confuse or conflate the protected characteristics by suggesting "woman" also includes those born male with the protected characteristic of gender reassignment (ie transwomen) - which was the ruling in the FWS case.

And just to add, if they said the job would be given to a woman (and did not evoke the genuine occupational requirement in Schedule 9) then that would be positive discrimination, and illegal.

I read that as saying -

We are shit at promoting women to senior roles so our diversity at higher levels is crap. We’ve been told to try harder by asking more women to apply. So we are. You’re still going to be interviewed by a bunch of men and the hiring decision will be made by men and if by some miracle you do get the job you’ll have to struggle with the sexism that’s kept women out up to this point. Ooh and while, we’re at it, TWAW. Right on. (Isn’t that right, George? No, no, of course you don’t have to sleep with them).

This ad discourages women who ARE women but don’t identify as women. (I refuse to say what gender I am on forms because I believe in sex)

it doesn’t make clear what identifying as a woman might mean.

I like the quote from the article from a head of midwifery:

'Female and male are biological categories. You do not identify as "female" or "male", you are female or male,' she said.

How can a job advert cost £84k?
Don't most people just search NHS jobs online? Surely it doesn't cost that much for an HR department to write a JD and post it?

The ad might discourage those who do not identify as female, but it does not exclude them.

It is legal to state that you welcome applications from groups that are underrepresented in the workforce. It is a very common and long-standing practice in jobs advertising.

If you object to it, have you been raising objections all along to all examples?

It is legal to state that you welcome applications from groups that are underrepresented in the workforce. It is a very common and long-standing practice in jobs advertising

Some of us have just explained at length why that doesn't apply here. Shall I try again? The under-represented groups have to have one of the protected characteristics listed in the Equality Act. Being a woman is a protected characteristic. Having gender reassignment is a protected characteristic. "Identifying as a woman" is not a protected characteristic.

Yes, I understand that.

However there really is nothing illegal in this ad. They must not breach the Equalities Act, and nothing here does. They are not discriminating against any protected group, as the ad does not exclude any.

You can welcome applications from any group. So for example, you can welcome applications from members of the Asian community without it being discrimination, even though that does not include all other ethnic minorities and Asian descent is not specified in the Act.

And saying applications welcomed from a group does not mean those from others are rejected. Nor does it mean that the eventual appointment would be from any group mentioned as specifically welcomed.

It is legal to state that you welcome applications from groups that are underrepresented in the workforce. It is a very common and long-standing practice in jobs advertising

It doesn't say that they welcome applications from any group. It says that they are are 'particularly interested' in receiving applications from a specific group. There's a difference, and words matter

Not only does it say "particularly interested" but it then goes on to say "identifies as a woman" which isn't compatible with the EQA in respect of sex. Words do matter and this advert has got it wrong.

I am guessing they want a Transwoman to fill the role?

Because do females really identify as female? We just are female.

Like a previous poster, in my workplace (university) we guarantee an interview to candidates who meet ALL essential job requirements and are from a minority background. As it's STEM this includes women. This seems a fair approach.

If people reading the advert can't work out if it's encouraging women, transwomen or transmen, and if men think they're being deliberately excluded then it needs to be reworded.

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

That raises a question. This job ad is targeted at two groups: women, and nonwomen who say they are women. The racial distribution of women is the same as the racial distribution of the population, obviously. What’s the racial makeup of nonwomen who say they’re women? Are they favouring white people with this ad?

It's a central tenet of gender ideology that we are all just "identifying". You, me, Caitlyn Jenner, the cross-dresser down the street - we are all identifying as women in exactly the same way.

Anyway, can you imagine the outrage from TRAs if there was any suggestion that TWs are merely "identifying" whereas we actually "are"? No, whoever went on the training course that told them to write "identify as" has definitely had it drummed into them that this is simply the inclusive way of phrasing it.

And to be fair, the average person will raise an eyebrow at the question but go on to answer it according to their sex.