DA Act – Data Collection – Replacing the Protected Characteristic of ‘Sex’ with ‘Gender Identity’ for Victims in Safe Accommodation

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When something gets under my skin it can really gnaw away at me, I don’t tend to give up easily. So, following on from my submission to the Victim’s Bill consultation, I thought I would write separately to the Rt Hon Michael Gove MP in his capacity as Secretary of State for Housing, Communities and Local Government.

Gove oversees the Department for Levelling up, Housing and Communities (DLUHC), and it is this department that is responsible for issuing certain guidance to local authorities under the Domestic Abuse Act. The annoying, gnawing little detail, that I have been raising privately with various professionals since March 2021, is the crucial question of the ‘Sex’ of victims who enter safe accommodation. This very important data detail has been replaced with a question referring to a victim’s ‘gender identity’, and this has been sent out on the demographic data collection form to local authorities across England and Wales so they can design their future commissioning strategies for victims, and report back to government.

I wrote to Gove (and ccd in Nicole Jacobs, Domestic Abuse Commissioner) on 13th February 2022, having had no acknowledgement of my letter I wrote again on the 21st February 2022. After no further response, on the 26th February 2022, I forwarded my letter to Permanent Secretary and Department Executive for DLUHC, Jeremy Pocklington CB, to see if he would assist.

In addition I thought I would publish my letter on my website. I have no idea whether this will make any difference, or whether it will gain any traction, but given that I have been pursuing this issue for a year I am not likely to give up on getting a response any time soon.

I know data is a dry subject, but it is important to review all these various policies and practices for victims and survivors, and given this data is being collected nationally across England and Wales it is imperative to record the right information.

By now we all know by now how much sex matters…

Dear Michael Gove,

I am writing with regards to the Department for Levelling up, Housing and Communities (DLUHC), Statutory Guidance for Delivery of Support to Domestic abuse, in Domestic Abuse Safe Accommodation Based Services[1]. This guidance forms part of the new duties for local authorities under Part 4 of the Domestic Abuse Act 2021[2].

Part B of the Statutory Guidance states:

B3.1 Tier one authorities, with support from their Boards, must conduct (or make arrangements for) a local needs assessment to determine the level of need for support within relevant safe accommodation in their area.

B3.2 DLUHC have developed a standardised form to support authorities in undertaking a local needs assessment. This will create consistency across the country and better ensure authorities are considering the needs of all victims in their area. The standardised needs assessment form and associated guidance has previously been provided to local authorities and will be published alongside this guidance.

B3.3 Needs assessments are an important precursor to developing local strategies. A full local needs assessment should be conducted at a minimum every 3 years, with a refresh being undertaken on an annual basis to ensure any change in demand or support requirements are adequately captured.

B3.4 Tier one authorities, in consultation with the Board, should take steps to understand the barriers that prevent victims with diverse needs from accessing support within relevant safe accommodation, including those who share relevant protected characteristics. This also includes taking into consideration, but is not limited to, household composition, nationality and the varying levels of support needs and risk. In undertaking their needs assessment, local authorities should bear in mind their obligations under the Equality Act 2010.[3]

I am concerned specifically with the standardised form (referenced in B3.2) provided to Local Authorities from the DLUHC. In reference to my concerns, it is relevant to note the expectation set out from DLUHC rightly requires local authorities to understand the barriers faced by individuals with relevant protected characteristics (see B3.4). As I will detail, it appears the DLUHC have not adhered to their own expected standards with regards to individuals with shared protected characteristics, even though they have correctly linked to them in the statement in B3.4.

As I understand it from reading the statutory guidance, the data from the standardised form will then lead directly into a National Expert Steering group which, amongst other roles, functions to oversee the new duties under the DA Act. Pertinent to my concerns, which are laid out below, data from local authorities is used by the National Expert Steering group:

C3.4 DLUHC will use the data provided by local authorities as part of their reporting requirements, to monitor the progress of delivery of these new duties[4].

In a recent submission[5] to the Victims Bill consultation, I made reference to the concerns I have regarding the aforementioned standardised form. I re-produce the relevant parts of my submission below:

An example of how the government is currently conflating and confusing data, resides in the recent enshrinement of the DA Act[6] which resulted in guidance being sent out to all local authorities across the country. The guidance requests accommodation-based domestic abuse organisations to provide data under a need’s assessment spreadsheet, which was issued during the consultation phase of the DA Bill and to my knowledge is still represented in the current format – (see below in Appendix A and attached).

The demographic data requested is not in line with protected characteristic of sex. The question that should be reserved for the protected characteristic of sex on the Needs Assessment Form is at point 8 (see appendix A). The data asked for is listed under “gender identity” not “sex”. Gender identity has no basis in law and is terminology that is rejected by many. Collecting data which is meant to be for the protected characteristic of sex but uses the terminology “gender identity” was recently challenged under Judicial Review in England and Wales by the campaign group Fair Play for Women[7], after the Office of National Statistics (ONS) produced incorrect guidance for the planned Census. The ONS lost the case[8] and subsequently had to pay costs to Fair Play for Women and amend their guidance. I am unclear as to why or how sex specific data has again been reinterpreted by the government and or civil servants on this issue via the need’s assessment in the DA Act, particularly after such a large financial loss[9] to the taxpayer in the ONS case.

I understand that the need’s assessment is guidance only and some of the requested data is incredibly cumbersome for providers to collect, but the sex of a victim is and should be something we all collect in frontline domestic abuse and sexual violence services, so this data is not one that will be hard to produce. There should be the required category for recording sex and then a separate category for those who identify as transgender or non-binary, with due regard being paid to people who have a Gender Recognition Certificate. But the two should not be conflated and sex should not be self-determined (as asserted by the aforementioned Judicial Review).

The reduction of data on sex is problematic for the specialist male violence against women movement. The decimation of services that were borne out of the grassroots second wave movement is vociferous and rapid. If we cannot define women, we cannot protect them or fight for their services. The work of Karen Ingala Smith[10] and the Femicide Census[11] team evidenced that over a ten-year period 1,425 women in the UK were murdered by men. This equates to on average one woman every three days being subjected to men’s fatal violence, and within this data we know it results in one woman every four days being murdered by a current or former partner[12]. It is therefore vital we get the data collection right in order to prevent male violence in all its forms.

Obviously, the DA Bill is now the Act and local authorities are sending out this data collection material to all providers and subsequently using it to inform their strategic needs, and thus the commissioning of services. The category for sex is entirely missing on any demographics and replaced with gender identity. The government have therefore asserted the incorrect use of protected characteristics detailed in the Equality Act 2010 by replacing ‘sex’ with ‘gender identity’. This is self-ID of gender reform through the back door via demographics, and it causes me huge concern for the collection of adequate data for female victims. The government is sending mixed messages to local authorities on this issue, and we are already losing specialist ‘by and for women’ feminist led provision across the country. We cannot continue to challenge the retention of single sex specialist services, if local authorities are simultaneously being led down an ideological path which asserts the use of ‘gender identity’ as preferred terminology and thus the preferred ideology supported by the government.

Data collection in this sense may seem a small issue but it really matters. When it comes to protecting female victims of domestic abuse and sexual violence, the Government Equalities Statement[13] rightly notes they the largest demographic of victims (although notably the same Equalities statement makes no reference to sex apart from for male victims). But equally incorrect data collection limits the capacity of understanding of the need for specialist services for transgender victims. To be clear I think it is necessary to collect stats for those who believe they have a gender identity, alongside the sex specific data. In my view it is the right and appropriately legal way to collect data for victims.

Helpfully the Equality and Human Rights Commission has recently issued updated guidance for Scotland[14] on the need for public bodies to accurately ask for and record someone’s sex. Due regard should be given under the Public Sector Equality Duty, on data collection for the purposes of fostering good relations, and reducing discrimination, when public bodies are providing services to people who share protected characteristics. The guidance makes specific reference to the need to compare public service data with census information and sets out the need for public bodies to be mindful of the case law with regards to the judicial review previously mentioned[15].

Since the issuing of the need’s assessment guidance under the DA Bill I have repeatedly written to various people of influence regarding the issues I raise in this submission. Thus far I have received no positive response to fix the problem, I therefore raise this issue now as a matter for the public record, to ensure data is appropriately and legally collected so that female victims and survivors are centred in their own services.

As the Victims Code/Bill and the DA Act feed into each other I would urge the government to review and correct the DA needs assessment guidance for local authorities, and simultaneously not make the same mistakes within the proposed Victims Bill. As with all protected characteristics enshrined in the Equality Act 2010[16], data must unequivocally record all characteristics appropriately, and for the purposes of male violence against women under the victim’s code and Bill, this must include the ‘sex’ of both victims and offenders.

Since my above submission for the Victims Bill, Baroness Falkner, chair of the Equality and Human Rights Commission appeared on a podcast for the Holyrood Magazine[17], in the interview the Baroness made specific reference to the ONS census case and re-asserted the ‘importance of data accuracy’[18]. I am sure we can all agree in the essential need to collect accurate data that is in line with the nine protected characteristics within the Equality Act 2010[19], but it is particularly important for government departments to adhere to the expectations they set out for others and that all of us stay within the confines of the law.

Interestingly whilst I was reviewing the statutory guidance document[20], I noticed under the description of relevant accommodation (also known as safe accommodation) the document makes reference to the requirements of safety in dispersed accommodation (see section A3.4 i,ii)[21]. The wording is somewhat confusing, the document refers to both ‘single gender services’ and ‘single sex services’. It is important for the guidance to make clear what ‘single gender services’ are, as I can see no definition of these, and they are not supported by any legislation.

If by ‘single gender services’ this means services that accommodate men who identify as transgender alongside women, then this needs to be made clear, because this is an important distinction, particularly as these services then become mixed sex. Alternatively, if the reference of ‘single gender’ refers to ‘single sex’ there is no need to reiterate this twice, moreover, the meaning of ‘sex’ and ‘gender’ are not interchangeable[22], and the latter has no legal definition in UK law, this needs to be acknowledged in government documentation. The definition of single sex services is enshrined within Schedule 3, Part 7 of the Equality Act 2010[23], and as I understand it the EHRC is imminently publishing further guidance for single sex services.   

Although it is regrettable that the needs assessment form has been sent out with incorrect data collection categories within it, and that the strategic needs assessments required by local authorities as part of the consultation phase were based on these inaccuracies, the formal collection only started six months ago in October 2021. This gives an opportunity to ensure the statistical needs for victims are not skewed further and the data sent to the National Expert Steering Group is in line with the expectations set out within both the DA Act part 4 guidance, and the protected characteristics within the Equality Act 2010[24].

As referenced above I have tried to raise this issue numerous times with various professionals and my correspondence on this goes back to March 2021, I have not been successful in getting any changes made, but I have thus far not raised the issue directly with yourself and I therefore look forward to hearing from you on the matter.

Yours Sincerely,

Dr Shonagh Dillon LLB, DCrimJ


[1] https://www.gov.uk/government/publications/domestic-abuse-support-within-safe-accommodation/delivery-of-support-to-victims-of-domestic-abuse-in-domestic-abuse-safe-accommodation-services#part-c-reporting-and-national-oversight

[2] https://www.legislation.gov.uk/ukpga/2021/17/part/4/enacted

[3] https://www.gov.uk/government/publications/domestic-abuse-support-within-safe-accommodation/delivery-of-support-to-victims-of-domestic-abuse-in-domestic-abuse-safe-accommodation-services#contents

[4] https://www.gov.uk/government/publications/domestic-abuse-support-within-safe-accommodation/delivery-of-support-to-victims-of-domestic-abuse-in-domestic-abuse-safe-accommodation-services#part-b-local-delivery-of-support-within-safe-accommodation

[5] https://shonaghdillon.co.uk/response-to-victims-bill-consultation/

[6] https://www.legislation.gov.uk/ukpga/2021/17/contents/enacted

[7] https://fairplayforwomen.com/

[8] https://www.theguardian.com/uk-news/2021/mar/09/guidance-on-sex-question-in-uk-census-must-be-changed-high-court-rules

[9] https://fairplayforwomen.com/fair-play-for-women-wins-high-court-challenge-against-ons-census/

[10] https://kareningalasmith.com/

[11] https://www.femicidecensus.org/

[12] https://www.femicidecensus.org/data-matters-every-woman-matters/

[13] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/936241/victims-code-equality-statement.pdf

[14] https://fairplayforwomen.com/wp-content/uploads/2022/01/NEW-EHRC-GUIDANCE_comparing-old-and-new.pdf

[15] https://fairplayforwomen.com/fair-play-for-women-wins-high-court-challenge-against-ons-census/

[16] https://www.equalityhumanrights.com/en/equality-act/protected-characteristics

[17] https://www.holyrood.com/podcasts.htm

[18] https://anchor.fm/holyrood/episodes/Keeping-it-human-e1e3pel

[19] https://www.legislation.gov.uk/ukpga/2010/15/contents

[20] https://www.gov.uk/government/publications/domestic-abuse-support-within-safe-accommodation/delivery-of-support-to-victims-of-domestic-abuse-in-domestic-abuse-safe-accommodation-services#part-b-local-delivery-of-support-within-safe-accommodation

[21] https://www.gov.uk/government/publications/domestic-abuse-support-within-safe-accommodation/delivery-of-support-to-victims-of-domestic-abuse-in-domestic-abuse-safe-accommodation-services#part-b-local-delivery-of-support-within-safe-accommodation p.

[22] https://shonaghdillon.co.uk/research/3-academic-analysis-and-the-silencing-of-feminist-discourse/

[23] https://www.legislation.gov.uk/ukpga/2010/15/schedule/3/part/7

[24] https://www.legislation.gov.uk/ukpga/2010/15/section/4

Appendix A

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