Amelia’s Angels celebrates a win for building better practices

Recently, we raised concerns with a UK recruitment company about a mandatory “gender at birth” question on their application form.

To their credit, they didn’t just listen – after reviewing the process, they removed the question as a requirement and confirmed only current gender is collected where legally necessary (e.g., for HMRC reporting). Even better, they’ve invited us to contribute to their training and education review, ensuring their future processes stay both inclusive and compliant.

During August we were alerted by a Threads follower, to a concerning issue of data collection around “gender at birth”, on an agencies online onboarding form.

While we understand there are times where a potential employer may wish to collect information on gender etc as part of equality and diversity information, this should never be mandatory information.

This information qualifies as special category personal data under Article 9 of the UK GDPR.

From the ICO website:

In order to lawfully process special category data, you must identify both a lawful basis under Article 6 of the UK GDPR and a separate condition for processing under Article 9. These do not have to be linked.

We wrote to the company outlining why we were raising concerns:

“This information qualifies as special category personal data under Article 9 of the UK GDPR, as it relates to sex and may reveal gender reassignment status. Collecting such data requires: 

• A valid lawful basis under Article 6, and
• A separate condition under Article 9. 

For recruitment purposes, “gender at birth” is not required to verify identity, establish right to work, or assess suitability for employment. The Home Office right-to-work guidance requires only current legal identity as shown on official documents (e.g. passport or biometric residence permit). 

Unless you can demonstrate a clear and specific legal obligation or another valid Article 9 condition, this question appears to breach the principle of data minimisation under Article 5(1)(c) and the requirement to have an appropriate lawful basis.”

To the companies credit they got back to us this week and addressed not only our concerns but have already made the steps to change.

“Following an internal investigation, it has been found that this question was part of the application process to capture equality and diversity information.   However, upon review we have now removed this question and it is no longer a mandatory field in our question set. 

We do capture current gender information in our post job acceptance questionnaires as this is a legal requirement for HMRC reporting.”

This is a win we believe deserves celebrating at Amelia’s Angels. Trans people already face a significantly higher rate of discrimination when looking for and staying in work. Questions that were on the form of the agency can be instant red flags and can mean trans people will immediately be hesitant to apply for a job. That and the fact that asking for that information is illegal.

With added concerns about our safety and inclusion as the EHRC’s ‘code of practice’ makes its way through parliament, it is more important than ever to confront these issues when they arise and remind companies of their actual obligations not what an anti-trans cohort and their friendly media are trying to claim. Which is why it is equally a win that the door is open with the company we raised the issue with, to help them by contributing to their training and education review.

We’ve come up with a handy guide to help companies when preparing to ask for information relating to gender and equality when it comes to recruitment.

1. Follow the Principles of Data Protection (UK GDPR)

• Minimise data collection: Only ask for what you truly need to comply with law or achieve a clear, legitimate purpose.
• Use lawful bases correctly: Gender – related data often falls under special category data, requiring both a lawful basis (Article 6) and a condition under Article 9.
• Transparency: Make it clear why you’re collecting data, how it will be used, and whether it’s optional or mandatory.

2. Mandatory vs. Optional Questions

• Mandatory:
  • Legal identity information (for right-to-work checks)
  • Gender information required for payroll/HMRC reporting
• Optional:
  • Equality, diversity, and inclusion (EDI) monitoring questions
  • Any questions about gender history or identity not required for legal purposes

Optional questions should:

• Be clearly marked as voluntary
• Allow for “prefer not to say”
• Be separated from the main application if possible

3. Inclusive Wording Tips

• Use “gender” rather than “sex” or “gender at birth” unless legally required.
• Offer inclusive options: Male, Female, Non-binary, Prefer not to say, Other (please specify).
• Avoid language that could unintentionally “out” or single out transgender applicants.

4. Consultation & Lived Experience

Consider seeking input from LGBTQ+ staff networks or external advocates when designing forms or policies.

A short review can prevent complaints, improve applicant experience, and ensure compliance.

Amelia’s Angels will always fight for and stand up for our community and will always work with others who wish to make the lived experience easier, less scary and follow their obligations under the law. We will help if you see any issue that could affect your privacy and wellbeing and we will extend a hand of outreach where we are able to.

Follow us on Threads and Instagram to contact us if you see an issue arise or are a company looking for advice so future processes stay both inclusive and compliant.

We will have our contact form up very shortly so you can contact us directly at the site.

ICO – Guide to the UK GDPR: https://ico.org.uk/for-organisations/uk-gdpr-guidance-and-resources/

ACAS – Equality, diversity and inclusion at work: https://www.acas.org.uk/equality-diversity-and-inclusion

Stonewall – Inclusive Recruitment Guides: https://www.stonewall.org.uk/resources

LGBT Health – Trans People and Work Survey Report: https://www.lgbthealth.org.uk/wp-content/uploads/2021/08/Trans-People-and-Work-Survey-Report-LGBT-Health-Aug-2021-FINAL.pdf