Challenging employers' E&D monitoring form - what should I be asking?

[Outcrop]

I work for a large regulatory organisation which really should know better, but which has removed 'sex' from its E&D monitoring form, replaced it with 'gender' and given three options (Female/Male/Prefer not to say and Prefer to Self Describe with a little box where you can write in whatever gender you think you are ). There is an additional question: 'Do you identify as Trans?' with three options: yes/no/prefer not to say.

I queried the lack of a 'sex' option with a senior HR bod and was told 'we are now required to give the option for candidates to self describe. This was recommended by Stonewall and our LGBTQ+ network.'

I went back more forcefully and pointed out that gender, unlike sex, is not a protected characteristic, and that they are not in fact 'required' to make this change. I also mentioned that Stonewall was a lobbying organisation, not an authoritative source of policy guidance, and that losing the ability to count the men and women you employ drives a coach and horses through your ability to e.g. report on the gender pay gap, plan services etc.

HR bod has responded thus:

'The option to self-describe for sex and sexual orientation is recommended by expert organisations in this area which is why we provide the option for candidates/staff to select as it ensures we are following best practice. These are the only two areas that can be covered by this option.

'We still record and do a great deal of analysis on our workforce profile comparing male and female and use this for our gender pay reporting. The wording of the question does not impact our ability to report on this and the numbers of those that would chose to self-describe are small.

'We also continue to protect staff who have a protected characteristic and reporting as ‘gender’ not ‘sex’ does not impact this.

She's invited me to ring her to chat about this, and I've really got the bit between my teeth now. I want to hammer home the point that sex =/= gender, and query what equality impact assessment they conducted when they made this change on the advice of 'expert organisations' (ie Stonewall, and All About Trans, who have 'trained' a large number of our staff).

Is there anything else I should be asking/saying? I'm sure there must be a handy guide somewhere for people who want to challenge their employers about these kinds of changes - I'd be very grateful for any hints.

This from Fair Play For Women points out that EA2010 clearly differentiates between sex and gender.

Thanks Fester, will have a read.

Rebecca Reilly-Cooper's article is useful:

'Gender is not a spectrum
The idea that ‘gender is a spectrum’ is supposed to set us free. But it is both illogical and politically troubling'
(extract)
aeon.co/essays/the-idea-that-gender-is-a-spectrum-is-a-new-gender-prison

WPUK on EqualityAct & correcting public sector errors re gender/gender identity:

womansplaceuk.org/sex-is-a-protected-characteristic/

outcrop let us know how it goes - Cheering you on!

Extraordinary - and scarey - that when challenged they come back with this response.

Perhaps suggest that your HR department contacts the Equalities & Human Rights Commission for guidance rather than taking advice from political lobby groups like Stonewall etc, none of whom understand any of the UK law?

www.equalityhumanrights.com/en

Good point, Jacky. I'm aghast at the lack of thought, more than anything. Like I say, they really should know better but like so many orgs they've just sleep walked into this.

And thanks, loveyour - I've no intention of letting this lie. Have 'come out' as GC in front of quite a few colleagues now and am still alive (and employed!) to tell the tale

Can you suggest that they modify it slightly to:

Sex? M/F
Gender? (Free text box as there is literally hundreds of possibilities)
Do you identify as trans?

It's only one extra question and would mean they could cover all of their bases.

I wouldn't bother with the EHRC. They've appointed a former chair of Stonewall as one of their commisioners and were themselves misrepresenting the EA in the same way for a while. If I remember correctly they grudgingly changed it (to, yno, comply with the fucking law) after challenged by one of the grassroots groups.

www.equalityhumanrights.com/en/who-we-are/our-commissioners-committees-and-governance/about-our-commissioners

Ask how they can continue to report and analyse Male and female staff numbers if they no longer ask, and thus how they will meet their statutory responsibilities to pay gap reporting.

Ask her why she is presuming that only a small number will choose to self-describe in a particular way? If she knows how many she doesn't need to ask the question.

Ask her how she will ensure biological females are not discriminated against when she cannot identify who they actually are.

Ask her if her approach to age analysis would allow staff to self identify their age. Would she be happy if someone identified as having a right to work in the U.K. or would she ask for documentation?

I did ask why we didn't allow people to self identify their age in my original email. Her response was that they are required to allow people to self identify their sex/sexuality. Which is plainly bollocks, leaving aside the fact that 'sex' isn't mentioned on the form.

Depressing to learn that the EHRC has been infected too.

I like that 'fix' , itsall. I want to keep the tone positive and helpful. Until they double down, of course.

What an interesting thread. Placemarking.

It’s very straightforward- they are no longer collecting information on the protected characteristic of sex, and therefore can not monitor impacts

They are perfectly free to also collect information on gender identity, but they should have either a free text box, or an option of “i don’t have a gender identity”

Her response was that they are required to allow people to self identify their sex/sexuality.

Gender yes, sex no.

What your HR person is telling you is that they consider it best practise to encourage employees to opt out of the Gender pay gap reporting requirements.

Misleading junior female employees into doing this is not good practice.

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Gender pay gap reporting requirements. It does not say allow people to remove themselves if they want to, nor does it say its OK to delete a few as it won't matter much.

That's one of my main concerns, Trousering. Our GPG is above the industry average and so far we've had a lot of hot air and not much action. Erasing the distinction between men and women is hardly going to help.

Your a regulator. Can you say what sector? Prob not! Can you take some good practice examples from those you regulate? What would you do as a regulator if your organisations suddenly had huge gender pay gaps, were all found guilty of sex discrimination. As a regulator you should lead by example.

This is the area I work in and at the moment this is being analysed in great detail, so having parts of HR tell people they can "prefer not to say" is very annoying. Are they going to tell people that if they prefer not to say then they will be excluded from the reports and analysis or are they going to be hide this from them? Saying that they don't matter is what, managing diversity? Inclusion? Transparency? Or lying?

So if five percent prefer not to say and this changes the gap calculation then what is the year on year explanation? We encourage people to opt our? We don't tell them but we don't think they are important enough to inform them of our plans to exclude.

I would point out to your employers that Stonewall are not experts in data collection and analysis, and they need to follow the advice of the real experts at the Office for National Statistics and National Records of Scotland (NRS).
Extensive research has been undertaken by relevant census experts on the questions to be included in the 2021 censuses for England and Wales, and for Scotland. Both the Westminster and Scottish Governments have concluded that sex (as opposed to gender) is a core demographic variable of fundamental importance. The Equality Impact Assessment on the census questions, carried out by the Office for National Statistics, has underlined the importance of the protected characteristics of sex (not gender) for robust data collection. The protected characteristic of sex underlies decision-making and is used to monitor and measure inequalities.
In its consideration of the 2021 census questions, the Scottish Government Culture, Tourism, Europe and External Affairs Committee has explicitly considered the differences between sex and gender. It has stated unequivocally that sex and gender should not be conflated, to ensure accurate data collection and to comply with the Equality Act.
I would recommend that if your employer wishes to comply with best practice, it should look at the census’ recommendations i.e sex (not gender, binary question); optional gender identity question. They should not be following Stonewall advice as they have no expertise in this subject.
References:
MH Government White Paper [on 2021 census]. Help Shape our Future. December 2018.

Equality Impact Assessment for the 2021 Census. ONS. December 2018.
Scottish Government Government Culture, Tourism, Europe and External Affairs Committee. Stage 1 Report on the Census (Amendments) (Scotland) Bill). 7 Feb 2019. The recommendations in this report were accepted by the relevant Cabinet Secretary on 25 Feb 2019.

For those querying use of the EHRC, it is under serious scrutiny now by the Women & Equalities Select Committee.

It knows it has to do a lot better

Have a listen to this from 08 May 2019 [ie: yesterday]:

parliamentlive.tv/Event/Index/19f4ac42-1b20-4472-a3a6-86a69e84f906

She's hugely confused about the different groups. She's clearly used 'sexual orientation' when she means 'gender reassignment'. And, as others have said, really doesn't know the difference between 'sex' and 'gender'.

You may also want to point them at the recent controversy around the Solicitors Regulation Authority omitting sex from their two most recent diversity and inclusion questionnaires.

After the 2017 survey, the SRA proclaimed proudly that the number of women employed in the industry was above average for the UK workforce. Hurrah, so progressive, so inclusive.

Not. 2% of respondents were trans. As the average percentage of females employed in the UK workforce is 47%, the SRA's reported figure of 48% (hurrah!) actually most likely (given the usual statistical distribution of males and females in the adult transgender population) included 2% males. Ergo, females in the profession remain underrepresented at 46% (boo!).

As the average male who identifies as trans does so in middle age (the median age at transition being mid 40s to mid 50s), when men typically earn more than women, the pay gap is very noticeable at this point and reporting will be vulnerable to small scale changes. Including higher paid men in the pay statistics of women (when significantly fewer women than men hold the higher paid jobs), can noticeably skew the statistics.

This statistical discrepancy was uncovered by Roll on Friday and presented in this article.

This is all incredibly useful guys. I'm going to compose the most comprehensive reply I can and cc some more senior people and see what I can shake out of this tree.