Sex not gender in the workplace

Sex is a protected characteristic and gender identity is not. Although gender reassignment is. How are they going to monitor their companies equality and diversity in regard to protected characteristics if they muddle something non protected like gender identity in? How can they assess and provide robust evidence in accordance to legislation when they are measuring the wrong thing?

How will they monitor pay, monitor the percentage of females in management or progression, family friendly policies,

They also mention pensions which I hadn't through of.
Oh does this mean if we all self ID at pension age as men, they will have to give us the same state pension as men?
That might change some minds.

Thank you very much, an interesting article, which i'll re-read to fully absorb the content. Not related but, I'm particularly interested in the conflict of interests in my work place. Our HR no longer holds staff records by sex, but rather by gender, and as a care provider to vulnerable children and adults will on occassion be expected to provide same sex care. As they don't hold records on sex they cannot guarantee this service. My workplace has been completely captured, with training and policy parroting Stonewall's position.

You might find the Legal Feminist blog interesting. There are lots of articles on the potential conflicts between holders of different protected characteristics, e.g.
legalfeminist.org.uk/2020/07/02/legally-this-is-not-a-trans-rights-issue-its-a-sex-rights-issue-a-blog-about-boxes/

Any employment lawyers out there? What do you think would happen at the moment if there was a sex discrimination claim in terms of pay under the 2010 equality act. If employer records are kept only by gender. Do you think an employer would be able to assert equality without evidence?

I have this at work at the mo.

I said in a male dominated workplace there may be sexism based on how others perceive you.

How you feel inside is different as you may not change presentation/ your sex is usually still obvious.

I pushed for a sex question m/f/prefer not to say.

And then questions about trans/gender.

It's better to ask both. They are different things. Got pushback a bit still...

I pointed out that if it were just gender I probably wouldn't say, or would say agender. Then they would not include me in any stats.

Tbh I thought fuck it. It's true. I have no internal sense of gender. Stats are needed on both sex and gender to really understand the workforce makeup.

Sorry, that was a bit confused, basically I do not think there is any legal definition of gender.

Gender identity is not protected in law, and it is a contested concept that not everyone believes in. Asking people "what is your gender identity?" is like asking "which God do you believe in?" Some people may believe in one or more gods, but many do not and would find the question fundamentally flawed. Sex, meanwhile, can be observed in every cell of the body, even thousands of years after death. It is scientific fact that only mammals of the female sex have been pregnant and given birth. I don't think 'part-time woman' Philip Bunce ever had to worry about getting passed over for promotion because his company thought he might go on maternity leave, no matter how many pink and lacy dresses he wore... If they do not collect data on sex, their pay gap and diversity performance measures will be meaningless.

I started looking, but I haven’t got very far yet. So far as I know gender isn’t a term defined in any legislation or common law, though it is used in the GRA and gender reassignment is used (and defined) in the Equality Act. I also don’t think there is any case law on what It means (again, could be wrong), but certainly (99% sure!) male and female refer to sex.

Some good points here from ONS on capturing sex and gender - scroll down.

They also mention pensions which I hadn't through of.

www.ons.gov.uk/economy/environmentalaccounts/articles/whatisthedifferencebetweensexandgender/2019-02-21#data-collection-benefits-and-complexities

Well that would be interesting - if their guidance didn't actually match what is in the Act!! I wonder if anyone has looked at?

You've piqued my interest I'm away to look at the Act now!

*self-ID

Yes, this is the guidance I was referring to. I don’t know what the legal basis is that they are asking for self-is gender rather than sex.

See www.gov.uk/guidance/the-gender-pay-gap-data-you-must-gather

So as a member of the woman sex, say I play their silly game and say that my gender is female - what the hell does that tell them?

Original message is asking what you should reply with. You could say:

Sex not gender is a protected characteristic per EA 2010. Therefore important to capture to highlight any potential discrimination hotspots...

Women (biological) more likely to be absent from work due to men (quick google will confirm) - causes could be menopause, childbearing plus different susceptibility to different illnesses etc- how can they establish hotspots /cause and effect if they don't capture sex?

Supporting pregnant employees - predicting volumes for certain initiatives then they would want sex not gender.

Similar for men, if they had a hotspot of heart attacks in one area of the business then sex would be the variable that would be useful to look at.

HR is moving towards evidence based, this relies on meaningful analysis and good data.

I would frame it as an additional category rather than "instead of". There's doubtful to be anything helpful waiting for you at the end of the "capture sex-only" path.

Good luck!

Gender expression could be useful in understanding diversity. For example having a mix of different male and female gender characteristics in teams. There is some evidence that this is successful (particularly with different risk-taking behaviours which are associated with male/female characteristics). In this case gender could be a useful category for analysis.

Sex would be useful in understanding impact of childbearing, absence (women on average more prone to strokes, men to heart attacks), menopause etc.

People Analytics practitioners in HR would find having both of these categories useful. It depends on what type of questions you are looking to answer.

You are right of course there is also the issue of self-ID which is problematic and what a person understands by the terms "gender" and "sex" when they provide their characteristics. Anyone working in People Analytics has to be mindful of the quality and potential bias in the data.

The HR person who replied actually stated that gebder is a protected category as well as sex so I have to break that down to them first.

If you do that, hopefully the rest will follow...

I’d ask on what cases would gender and not sexual actually be useful?