Columnist Julie Corney Personal preference S exual orientation is separate and distinct from gender and discrimination laws with a single act, making the law easier to gender identity. Gender identity is the way that an understand and strengthening protection in some situations. It sets individual describes themselves and identifies with a out the different ways in which it is unlawful to treat someone. gender category. Stonewalls Glossary of Terms defines It is against the law to discriminate against anyone because of the sexual orientation as: A persons sexual attraction to other following protected characteristics: age; gender reassignment; being people, or lack thereof. Along with romantic orientation, married or in a civil partnership; being pregnant or on maternity this forms a persons orientation identity. Stonewall uses the leave; disability; race, including colour, nationality, ethnic or term orientation as an umbrella term covering sexual and national origin; religion or belief; sex; or sexual orientation. romantic orientations. This ensures that individuals are protected from discrimination The Market Research Society (MRS)s best practice at work, in education, as a consumer, when using public services, recommendation is that, for research and data collection to be when buying or renting property, and as a member or guest of a inclusive of the population, all relevant personal characteristics private club or association. should be included. This ensures all participants are equally Practitioners must take reasonable steps to design projects valued, and their opinions and attitudes are being gathered collecting sexual orientation data to the specification or quality and represented. standards agreed with clients. This includes which characteristics The Data Protection Act 2018 and and parameters are to be used when the UK GDPR requires a legal basis for identifying participants sexual processing of personal data. Some orientation. Collection of sexual Researchers processing sexual personal data is categorised as special orientation questions needs to be orientation data as well as personal appropriately tailored to the data category data and is subject to data will need to have a legal basis collection tool. additional requirements when being for the data being processed collected. Data on sexual orientation is Its also important to bear in mind categorised as special category data. the GDPR principle of data Special category data needs to be minimisation: for special category data treated with greater care, as collecting it is essential to make sure only the and using it is more likely to interfere with an individuals minimum amount of information is collected and retained. Plus, fundamental rights or result in discrimination. This is part of the insights professionals must check whether the sexual orientation risk-based approach of the UK GDPR. question is relevant in the context of data collection activity. Researchers processing sexual orientation data as well as Sexual orientation may be very clear-cut for some participants, personal data will need to have a legal basis for the data being but others may prefer not to label themselves, and some might processed. When processing special category data, practitioners prefer not to disclose at all because they dont feel comfortable must have a lawful basis under article six of the GDPR in addition answering the questions. In some cases, answering such questions to meeting a special condition under article nine of the GDPR, could be potentially harmful for participants because of cultural but these grounds do not have to be linked. The MRS GDPR in conflicts, including the admission of illegality in some countries. brief no 10 Collection of ethnic data and other special category It is important to allow participants to self-describe and to opt out data provides guidance on what you need to do to meet these of answering sensitive, personal questions. requirements and checklists to help identify what must be done There is no one-size-fits-all question and response approach to to collect sensitive special category data, such as sexual collecting data about sexual orientation. There is a wide variety orientation data, in accordance with GDPR. of ways to identify sexual orientation, so it can be a challenge The Equalities Act 2010 protects people from discrimination in to include enough options without making it too confusing for the workplace and in wider society. It replaced previous antithe participant. 52 Impact ISSUE 37 2022_pp52-53 Legal.indd 52 28/03/2022 15:37